petent for the courts to decide what its purpose is, by considering its natural and reasonable effect, no matter in what language the statute may be phrased. It is not possible, by any form in which it may be attempted, to nullify those provisions of the federal Constitution, the object of which is to secure and preserve the liberty of the citizen. same end by addressing its prohibition to corporations. "In Cummings v. State of Missouri, Mr. Justice Field, speaking for the court, observes: 'Now, as the state, had she attempted the course supposed, would have failed, it must follow that any other mode of procuring the same result must equally fail. The provisions of the federal constitution intended to secure the liberty of the citizen cannot be evaded by the form in which the power of the state is exerted. If this were not so, if that which cannot be accomplished by means looking directly to the end ean be accomplished by indirect means the inhibition may be evaded at pleasure. No kind of oppression can be named, against which the framers of the constitution intended to guard, which may not be effected.' 4 Wall. 320, 18 L. ed. 356. "The application of these pregnant words to the case at bar is obvious. Few will have the hardihood to deny the purpose and effect of the article of the constitution which has been cited. It is in open and seemingly contemptuous violation of the provisions of the treaty which give to the Chinese the right to reside here with all the privileges, immunities and exemptions of the most favored nation. It is in fact but one, and the latest, of a series of enactments designed to accomplish the same end. The attempt to impose a special lieense tax upon Chinese for the privilege of mining, the attempt to sub If it would be a violation of ject them to peculiar and exceptional punishments commonly known as the Queue Ordinance, have been frustrated by the judgments of this court. The attempt to extort a bond from ship-owners, as a condition of being permitted to land those whom a commissioner of immigration might choose to consider as coming within certain enumerated classes, has received the emphatic and indignant condemnation of the supreme court. Chy Lung v. Freeman, 92 U. S. 275, 23 L. ed. 550. But the question which now concerns us is: Does the law under consideration impair or destroy the treaty rights of Chinese residents? For it may be a part of a system obviously designed to effect that purpose, and yet not of itself be productive of that result. Its practical operation and effect must, therefore, be adverted to. "The advantages of combining capital, and restricting individual liability, by the formation of corporations, have, from the organization of this state, been recognized by its laws. That method, now universal throughout the civilized world, in the prosecution of great enterprises, has in this state received an unprecedented development. Its laws permit the formation of corporations for any purpose for which individuals may lawfully associate, and the corporations already formed cover almost every field of human activity. The number of certificates on file in the clerk's office of this county alone was stated the federal Constitution absolutely to forbid Chinese to labor to obtain a living, the state cannot procure the same result by prohibiting corporations from employing them, as that would be to accomplish indirectly what it cannot do directly. § 200. Property includes right to labor.-Property includes everything which has an exchangeable value, and consequently, in a legal sense, labor is property. Next in importance to the at the hearing to be 8,397. The number in the entire state is of course far greater. They represent a very large proportion of the capital and industry of the state. The employment of Chinese, directly or indirectly, in any capacity by any of these corporations is prohibited by the law. No enumeration would, I think, be attempted of the privileges, immunities, and exemptions of the most favored nation, or even of man in civilized society, which would exclude the right to labor for a living. It is as inviolable as the right of property, for property is the offspring of labor. It is as sacred as the right to life, for life is taken if the means whereby we live be taken. Had the labor of the Irish or Germans been similarly prescribed, the legislation would have encountered a storm of just indignation. The right of persous of those or other nationalities to support themselves by their labor stands on no other or higher ground than that of the Chinese. The latter have even the additional advantage afforded by the express and solemn pledge of the nation. "That the unrestricted immigration of the Chinese to this country is a great and growing evil, that it presses with much severity on the laboring classes, and that, if allowed to continue in numbers bearing any considerable proportion to that of the teeming population of the Chinese Empire, it will be a menace to our peace and even to our civilization, is an opinion entertained by most thoughtful persons. The demand, therefore, that the treaty shall be rescinded or modified is reasonable and legitimate. But while that treaty exists, the Chinese have the same rights of immigration and residence as are possessed by any other foreigners. Those rights it is the duty of the courts to maintain, and of the government to enforce. "The declaration that 'the Chinese must go, peaceably or forcibly' is an insolent contempt of national obligations and an audacious defiance of national authority. Before it can be carried into effect by force the authority of the United States must first be not only defied, but resisted and overcome. The attempt to effect this object by violence will be crushed by the power of the government. The attempt to attain the same object indirectly by legislation will be met with equal firmness by the courts; no matter whether it assumes the guise of an exercise of the police power, or of the power to regulate corporations, or of any other power reserved by the state; and no matter whether it takes the form of a constitutional provision, legislative enactment, or municipal ordinance." right to life and liberty is the right to make labor available and exchangeable for other things of value. The treaty with China guarantees to the subjects of that country certain privileges and immunities, which they are entitled to enjoy to the same extent as the subjects of the most favored nation. They include all those rights which are fundamental and of right belong to the citizens of all free governments. Among these is the right to labor and the right to follow any lawful employment in a lawful manner." 12 § 201. Employment of aliens on public works.—While a state has the general power to say to whom it or its contractors will give employment, still the state, as the state, is a member of the Union, and subordinate in the exercise of its general power to treaties made pursuant to the Constitution; it cannot exercise such power where it will conflict with a treaty. The state of Oregon enacted a law providing that: "It shall be unlawful to employ any Chinese laborers on any street, or part of street, of any city or incorporated town of this state, or on any public works or public improvement of any character, except as a punishment for crime, and all contracts which any person or corporation may have for the improvement of any such street, or part of street, or public works or improvement of any character, shall be null and void from and after the date of the employment of any Chinese laborers thereon by the contractor." 13 A bill in equity was filed to obtain an injunction to enjoin the city of Portland from enforcing the act, and while a demurrer was sustained upon other grounds, the court held that the act of the legislature was void, because in conflict with the treaty which secured to the Chinese residents of the United States the same right to be employed and labor for a living as the subjects of any other nation.14 Judge Deady referred to the treaty between China and the United States and said: "This treaty, until In re Tiburcio Parrott, 6 Saw. 349, 1 Fed. 48. 13 Sess. Laws 1872, p. 9. 14 Baker v. Portland, 5 Saw. 566, 2 Fed. Cas. No. 777. In the course of the opinion it was said by Judge Deady: "As was said by Mr. Justice Field in the 'Queue Ordinance Case' lately decided in the circuit court for the district of California (Ho Ah Kow v. Nunan, Case No. 6546, 5 Saw. 552), to the national government 'belong exclusively the treaty-making power and the power to regulate it is abrogated or modified by the political department of the government, is the supreme law of the land, and the courts are bound to enforce it fully and fairly. An honorable man keeps .... commerce with foreign nations, which includes intercourse as well as traffic. . . . . That government alone can determine what aliens shall be permitted to land within the United States and upon what conditions they shall be permitted to land.' "It will be observed that the treaty recognizes the right of the Chinese to change their home and allegiance and to visit this country and become permanent residents thereof, and as such residents it guarantees to them all the privileges and immunities that may be enjoyed here by the citizens or subjects of any nation. Therefore, if the state can restrain and limit the Chinese in their labor and pursuits within its limits, it may do the same by the subjects of Great Britain, France, or Germany. "True, this act does not undertake to exclude the Chinese from all kinds and fields of employment. But if the state, notwithstanding the treaty, may prevent the Chinese or the subjects of Great Britain from working upon street improvements and public works, it is not apparent why it may not prevent them from engaging in any kind of employment or working at any kind of labor. "Nor can it be said with any show of reason or fairness that the treaty does not contemplate that the Chinese shall have the right to labor while in the United States. It impliedly recognizes their right to make this country their home, and expressly permits them to become permanent residents here; and this necessarily implies the right to live and to labor for a living. It is difficult to con ceive a grosser case of keeping the word of promise to the ear and breaking it to the hope than to invite Chinese to become permanent residents of this country upon a direct pledge that they shall enjoy all the privileges here of the most favored nation, and then to deliberately prevent them from earning a living, and thus make the proffered right of residence a mere mockery and deceit. In Chapman v. Toy Long (Case No. 2610, 4 Saw. 28), this court in considering these provisions of this treaty, said: "The right to reside in the country, with the same privileges as the subjects of Great Britain or France, implies the right to follow any lawful calling or pursuit which is open to the subjects of these powers.' "Whether it is best that the Chinese or other people should be allowed to come to this country without limit and engage in its industrial pursuits without restraint is a serious question, but one which belongs solely to the national government. Upon it there has always been a difference of opinion, and probably will be for years to come. "But so far as this court and the case before it is concerned, the treaty furnishes the law, and with that treaty no state or municipal corporation thereof can interfere. Admit the wedge of state interference ever so little, and there is nothing to prevent its being driven home and destroying the treaty and overriding the treaty-making power altogether." Baker et al. v. Portland, 2 Fed. Cas. No. 777, 5 Saw. 566. his word under all circumstances, and an honorable nation abides by its treaty obligations, even to its own disadvantage. The state cannot legislate so as to interfere with the operation of this treaty or limit or deny the privileges or immunities guaranteed by it to the Chinese residents in this country." The provision of the New York statute making it a crime for a contractor with a municipal corporation for the construction of public works to employ an alien as laborer on such works is void not only because it is an unlawful interference with the personal liberty of the citizen, and a denial of due process of law, but also of treaties providing that foreign citizens residing in the United States shall enjoy the same rights and privileges in respect to their persons and property as are secured to American citizens.15 § 202. Right to administration.-A consul of a foreign country is entitled to administer upon the estate of subjects of his country dying intestate, and the clause in a treaty giving him "the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased" will have the effect of superseding a state law giving the right of administration to a local officer. The power conferred upon the consul by the words above quoted is not limited by the succeeding words "conformably with the laws of the country for the benefit of the creditors and legal heirs." These words relate merely to the procedure of administration and not to the right to administer. The fact that a treaty cannot be reconciled with a state law is no reason why a state court should not enforce it.16 In the treaty with Italy, the right to administer was not specially mentioned, but the treaty contained a clause to the effect that the respective consuls shall enjoy in both countries "all the rights, prerogatives, immunities and privileges which are now or may hereafter be granted to the officers of the same grade of the most favored nation." But the ninth article of the treaty with People v. Warren, 13 Misc. Rep. 615, 34 N. Y. Supp. 942. Among the rights of personal liberty is that of making contracts, of laboring for others, and of employing others to labor. Such right is secured by the constitution, and is inalienable. Greenhood's Pub. Pol., rule CCCIII; In re Baker, 29 How. Pr. 485. 16 Matter of Lobrasciano, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040. |