in re Opinion of the Justices

• Decision Date: 10 March 1911
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 601

94 N.E. 558

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts, Plymouth.

March 10, 1911

The following is the question of the House of Representatives:

'If the Legislature is of the opinion that public order decency and morality require that girls and young women be excluded from Chinese restaurants and hotels, is it within the constitutional power of the Legislature to enact a law making it a criminal offense for any woman under the age of 21 years to enter a hotel or restaurant conducted by Chinese, or to be served with food or drink therein, or for the proprietor of any such hotel or restaurant to admit thereto a woman under the age of 21 years, or to serve her with food or drink therein?'

To the Honorable House of Representatives of the Commonwealth of Massachusetts:

The accompanying question, upon which our opinion is required, we respectfully answer as follows:

The fourteenth article of the amendments of the Constitution of the United States contains this provision: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' This language has received judicial interpretation by the Supreme Court of the United States, whose decisions upon questions under the federal Constitution are binding upon us. Said Mr. Justice Harlan, in Powell v Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 32 L.Ed. 253: 'The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring holding, and selling property, is an essential part of his rights of liberty and property, as guaranteed by the fourteenth amendment. The court assents to this general proposition as embodying a sound principle of constitutional law.' In Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220, Mr. Justice Matthews, in giving the unanimous opinion of the court, used this language: 'These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any difference of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by section 1977 of the Revised Statutes [U. S. Comp. St. 1901, p. 1259] that 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” The case had reference to regulations whose enforcement affected peculiarly subjects of the emperor of China, and the opinion refers to the treaty of November 17, 1880, between this government and China, found in 22 U.S. Sts. 827.

Mr Justice Field, in Barbier v. Connolly 113 U.S. 27, 31, 5 S.Ct. 357, 359, 28 L.Ed. 923, gives us this language in the opinion of the court: 'The fourteenth amendment, in declaring that no state 'shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of...