Yee Gee v. City and County of San Francisco, 228.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation235 F. 757
Docket Number228.
Decision Date20 July 1916

235 F. 757


No. 228.

United States District Court, N.D. California.

July 20, 1916

[235 F. 758]

Godwin B. Swift, of San Francisco, Cal., for plaintiff.

Percy V. Long, City Atty., and Maurice T. Dooling, Jr., Asst. City Atty., both of San Francisco, Cal., for defendants.

VAN FLEET, District Judge.

This is a bill by plaintiff, a native-born citizen of the United States, of the Chinese or Mongolian race, now and for many years owning and conducting a public laundry in the city of San Francisco, to restrain the enforcement of an ordinance (No. 3300 N.S.) of its board of supervisors, approved June 27, 1915, regulating laundries therein, and particularly of certain provisions thereof, on the ground that the same violates the Fourteenth Amendment of the Constitution, and that its enforcement will deny to plaintiff the equal protection of the law, and deprive him of his property and property rights without due process.

The general assignment of invalidity, involving the operation of the ordinance as a whole, is that it is unreasonably and arbitrarily discriminatory; it being alleged that it was passed and adopted for the sole purpose of interfering with and injuring the laundry business as carried on by persons of the plaintiff's race, of which a large number are alleged to be engaged in the business in said city, and in effect to drive them out of the business. The special features assailed are: [235 F. 759] (1) Certain provisions which it is claimed commit to the board of supervisors the arbitrary discretion to grant or refuse licenses to carry on the laundry business, and make it unlawful to engage therein without first securing a special permit from said board, which provisions it is claimed are in excess of the power of said board; and

(2) A provision limiting and restricting the hours of the day within which such business may be carried on and laundry work performed, in a manner and to an extent which, it is asserted, render such restriction wholly unreasonable and void as an exercise of the police power or otherwise.

The defendants have interposed a motion to dismiss the bill for want of equity, and the questions accordingly arise on the face of the pleadings.

1. The first ground urged in support of the motion to dismiss is that plaintiff is seeking to enjoin the enforcement of a penal ordinance; and that such relief is not within the province of equity. This is based upon the fact that the ordinance makes any violation of its provisions a misdemeanor, to be punished 'by a fine of not more than $500, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment,' and provides no other mode for its enforcement.

It is quite true that ordinarily a court of equity will not interfere to restrain a criminal prosecution instituted or threatened against one violating the provisions of an unconstitutional statute or ordinance (Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 23 Sup.Ct. 498, 47 L.Ed. 778); the remedy being at law, either by a defense in the criminal courts, where the question of the validity of the act may be as effectually availed of as in a court of equity (Fitts v. McGhee, 172 U.S. 516, 19 Sup.Ct. 269, 43 L.Ed. 535), or by proceedings on habeas corpus. But this is not universally true. If the enforcement or threatened enforcement of the act involves or will involve a direct invasion of property rights, equity will interfere to restrain the perpetration of the wrong, notwithstanding the enforcement is through a criminal prosecution. Dobbins v. Los Angeles, 195 U.S. 223, 25 Sup.Ct. 18, 49 L.Ed. 169, and cases there cited.

The present case, I think, falls within this exception. The right to labor or earn one's livelihood in any legitimate field of industry or business is a right of property, and any unlawful or unreasonable interference with or abridgment of such right is an invasion thereof, and a restriction of the liberty of the citizen as guaranteed by the Constitution. Lochner v. New York, 198 U.S. 45, 25 Sup.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133. That the industry here involved is in its essential nature a perfectly harmless, legitimate, and even necessary one, as viewed in its relation to our domestic and social economy, no question is or can be made. In re Hong Wah (D.C.) 82 F. 623; In re Quong Woo (C.C.) 13 F. 231; In re Tie Loy (C.C.) 26 F. 611; Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup.Ct. 1064, 30 L.Ed. 220. If, therefore, the ordinance as a whole, or in either of the particular features attacked, be in contravention of plaintiff's rights [235 F. 760] under the Constitution, its enforcement as to him in such obnoxious respect would in legal contemplation constitute an unauthorized invasion of his property.

In this aspect the case is to be distinguished from that of Moss v. McCarthy (C.C.) 191 F. 202, decided in this court, relied upon by defendants. The ordinance there attacked was not directed against a legitimate business, but the maintenance of 'bucket shops,' something regarded as offensive to the public morals and welfare, and in the maintenance of which, therefore, no right of property could legitimately inhere, and it was held that the threatened raiding of plaintiff's place of business by the police, and the arrest and prosecution of the plaintiff and his associates, would not constitute an injury to his property rights within the exception above noted; the court saying:

'The threatened invasion or injury to property rights must be an injury which will naturally and necessarily follow the threatened enforcement of the obnoxious ordinance; not a loss, damage, or detriment flowing merely incidentally or consequentially therefrom, through the arrest and prosecution of the party threatened, however irksome or expensive such action may prove.'

See Wiseman v. Tanner (D.C.) 221 F. 694.

2. The first two assignments against the ordinance may be briefly disposed of. The defendants' objection to the sufficiency of the averments of the bill to disclose invalidity by reason of the alleged purpose of the supervisors in passing it to discriminate against plaintiff's race is well taken. The mere allegation of an improper motive of a legislative body in adopting a measure is not, standing alone, sufficient to disclose invalidity. So long as the act is fair upon its face, and capable of even-handed and impartial application to all who come within its terms, the mere motive actuating its enactment cannot be inquired into as a ground for avoiding it. Soon Hing v. Crowley, 113 U.S. 703, 5 Sup.Ct. 730, 28 L.Ed. 1145; Fletcher v. Peck, 6 Cranch, 87, 131, 3 L.Ed. 162; United States v. Des Moines, etc., Co., 142 U.S. 510, 545, 12 Sup.Ct. 308, 35 L.Ed. 1099; Doyle v. Insurance Co., 94 U.S. 535, 24 L.Ed. 148; Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264. It is not alleged that the ordinance has received any partial or discriminating enforcement, and there is therefore nothing which, if proved, would bring the case within the doctrine of Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup.Ct. 1064, 30 L.Ed. 220.

3. As to the provisions asserted to have the effect to vest arbitrary power in the supervisors to grant or reject permits to engage in the business, their validity need not be inquired into, since plaintiff does not show himself injured thereby. It is not alleged that he has ever applied for or been denied a permit under this ordinance, and he is not, therefore, in a position to attack it on this ground, assuming it to be subject to the vice alleged. Gundling v. Chicago, 177 U.S. 183, 186, 20 Sup.Ct. 633, 44 L.Ed. 725; Kissinger v. Hay, 52 Tex.Civ.App. 295, 113 S.W. 1005; Johnson Exp. Co. v. Chicago, 136 Ill.App. 368, 375. [235 F. 761]

4. This leaves for consideration but the second special point of attack against the ordinance-- that involving the provision prescribing the hours of the day in which the work of a laundry may not be carried on. That provision is this:

'Sec. 9. No person or persons owning or employed in the public laundries or public wash houses provided for in section 1 of this ordinance shall wash, mangle, starch, iron, or do any other work on clothes between the hours of 6:00 o'clock p.m. and 7:00 o'clock a.m., nor upon any portion of that day known as Sunday.'

Section 1 embraces within its terms all public laundries or wash houses 'within the limits of the city and county of San Francisco. ' It will thus be seen that the terms of section 9 apply to all laundries maintained in the entire territory embraced within the city limits, without regard to differing conditions existing in different sections or districts thereof, the density of population or character of buildings, or the situation or relation of the laundry to other structures or premises, as calculated to cause danger of fires, or other objectionable considerations.

It is claimed that this sweeping and all-inclusive nature of the restriction, with its limitation on the number of hours prescribed for carrying on the business, having regard to its intrinsic nature, renders the provision subject to the objection that it constitutes an undue and unreasonable restraint upon plaintiff's right to pursue his occupation, and as such is in violation of his rights under the Constitution. The defendants contend, on the other hand, that it is a perfectly reasonable and proper police regulation, and one within the power of the board of supervisors to enact; and in support of this contention they place their reliance upon the cases of Barbier v. Connolly, 113 U.S. 29, 5 Sup.Ct. 357, 28 L.Ed. 923, Soon Hing v. Crowley, 113 U.S. 707, 5 Sup.Ct. 730, 28 L.Ed. 1145, and In re Wong Wing, 167 Cal. 109, 138 P. 695, 51 L.R.A. (N.S.) 361.

The first two cases involved provisions couched in precisely similar terms in two different laundry ordinances of the city and...

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