In re Wo Lee

• Decision Date: 26 January 1886
• Citation: 26 F. 471
• Court: United States Circuit Court, District of California
• Parties: In re WO LEE.

26 F. 471

In re WO LEE.

United States Circuit Court, D. California.

January 26, 1886

Hall McAllister, D. L. Smoot, and A. L. Van Schaick, for petitioner.

Alfred Clark, contra.

SAWYER J.

In the Laundry Ordinance Case, 7 Sawy. 531, S.C. 13 F. 229, Mr Justice FIELD and myself held an ordinance to be void, under the fourteenth amendment of the national constitution, on the ground that, as a condition of obtaining a license, the party desiring to carry on that business must obtain the consent of the board of supervisors, which could only be granted upon the recommendations of not less than 12 citizens and tax-payers in the block in which the laundry was to be carried on; and we also held that a party arrested for violation of that ordinance was entitled to be discharged on writ of habeas corpus by the circuit court of the United States under the provisions of section 753 of the Revised Statutes of the United States. In the course of the decision in that case, Mr. Justice FIELD observed that in neither case can licenses 'be required as a means of prohibiting any avocations of life which are not injurious to public morals nor offensive to the senses, nor dangerous to the public health and safety; nor can conditions be annexed to their issue which would tend to such prohibition. The exaction, for any such purpose, of a license to pursue a vocation of this nature, or making its issue dependent upon conditions having such a tendency would be an abuse of authority. Such is evidently the tendency and purpose of the condition required in the ordinance in question in this case, and we have no doubt of its invalidity.' 7 Sawy. 531, and 13 F. 229. And such must necessarily be the tendency of any ordinance that requires the consent, which may be arbitrarily given or withheld, at the discretion of the board of supervisors, or of any other body or persons, as a condition precedent to the exercise of a lawful and necessary calling.

After that decision, the ordinance was amended by omitting the requirement of the assent of 12 citizens and tax-payers in the block; but it still prohibited carrying on a laundry business, after complying with numerous onerous conditions, without, in addition, 'having first obtained a license or permit therefor, duly granted by resolution of the board of supervisors. ' It prescribed no specific conditions, the performance of which should entitle the party party to a license or permit; but the license or permit, after performance of all the other prescribed conditions, still depended upon the will or pleasure of the board of supervisors. It simply struck out the consent of the 12 tax-payers in the block, and left it to rest upon the consent of the board alone, thereby limiting the number of parties to the consent, without abandoning the principle. For this reason, in Tom Tong's Case, the circuit judge thought the objection still remained unobviated. On this point we think he is also sustained by authority. Mayor of Baltimore v. Radecke, 49 Md. 217; 33 Amer.Rep. 243-245. In that case, in commenting upon the ordinance then under consideration, the court says:

'It commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam-engine, in the prosecution of any business in the city of Baltimore, to cease to do so, and, by providing compulsory fines for every day's disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his action. It lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented. It is clear that giving and enforcing these notices may and quite likely will bring ruin to the business of those against whom they are directed, while others, from whom they are withheld, may be actually benefited by what is thus done to their neighbors, and when we remember that this action or non-action may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.'

And it can make no difference that the arbitrary discretion is reserved to a board, instead of a single individual. Indeed, where the power is reserved to a board, there is a divided responsibility, and each member is less sensitive to its pressure upon his individual conscience. Each gives countenance and support to the others, who act with him. Thus they mutually sustain each other, and break the force of the weight of responsibility.

The district judge of this district, however, not being satisfied, we certified a division of opinion to the supreme court, thereby submitting the question for its decision as to the constitutionality of the ordinance as so amended, and the points of difference appear in Ex parte Tom Tong, 108 U.S 557; S.C. 2 S.Ct. 871; see especially points 3 to 6, inclusive. Unfortunately,-- the party being confined for an offense against the laws,-- we supposed the certificate to be governed by the provisions of the statute relating to criminal cases, but the supreme court held the practice in civil cases to be applicable, and declined to take jurisdiction because a final judgment had not been rendered before the writ of error was sued out. Thus our misapprehension of the practice prevented a decision of the important, vigorously litigated, and vital questions presented. Had that case been decided, probably there would not have been any occasion for this case, as the principle involved would have been authoritatively settled, but we are ourselves unable to distinguish this case from either of the preceding. If the court was right in those cases, then it seems to us that the ordinance now in question must be void upon similar grounds. Section 1 provides that 'it shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco, without having first obtained the consent of the board of supervisors, except the same be located in a building constructed of either brick or stone. ' Thus, in a territory some 10 miles wide by 15 or more miles long, much of it still occupied as mere farming and pasturage lands, and much of it unoccupied sand banks, in many places without a building within a quarter or half a mile of each other, including the isolated and almost wholly unoccupied Goat island, the right to carry on this, when properly guarded, harmless and necessary occupation in a wooden building is not made to depend upon any prescribed conditions, giving a right to anybody complying with them, but upon the consent or arbitrary will of the board of supervisors. In three-fourths of the territory covered by the ordinance there is no more need of prohibiting or regulating...