120 



CALIFORNIA. 



that over 18,000 acres of valley-land on the 

 Tuba land that was once the finest bottom- 

 land in the State have been utterly destroyed 

 and buried beneath the mining debris, so that 

 now this vast area has been transformed into 

 a desert of sand and slickings, alternating with 

 impenetrable jungles of willow swamp. Prob- 

 ably as much if not more of equally good land 

 has been similarly destroyed on Bear River. 

 Although these lands have been exposed to 

 sunshine and rain for years, they produce not 

 a blade of grass nothing but willows and 

 kindred semi-aquatic plants, that derive their 

 nourishment chiefly from the stratum of water 

 percolating underneath the surface, and not 

 from the soil itself. From the beginning of 

 hydraulic mining to the present time over 

 150,000,000 cubic yards of solid material have 

 passed the foot-hills, and have been deposited 

 on the bottom-lands of the Yuba and into the 

 waters of the Feather and Sacramento Rivers, 

 the Bays of Suisun and San Pablo, and finally 

 into the Bay of San Francisco. Such a mass 

 deposited on a farm of 160 acres would cover 

 it to a depth of 581 feet ; or, if spread evenly, 

 one foot in depth, would cover 93,000 acres, 

 or 145 square miles of land, and absolutely de- 

 stroy it for agricultural or any other purpose. 

 The bed of the Yuba at Marysville is now 

 filled up to the level of the streets of that 

 city, where prior to the era of hydraulic min- 

 ing there was a well-defined channel of clear 

 water from 20 to 25 feet in depth. The Feath- 

 er and Sacramento Rivers have shoaled in a 

 lesser degree, but still sufficiently to almost 

 destroy their usefulness as a highway of com- 

 merce. The suit is between farmers and min- 

 ers, and in the lower court an injunction was 

 obtained against the latter. In the Supreme 

 Court the merits of the case were passed over, 

 and it was decided that there was a misjoining 

 of the defendants. Thus far only has it ad- 

 vanced. 



An ordinance of the city and county of San 

 Francisco provided that every male person im- 

 prisoned in the county jail, under the judg- 

 ment of any court, should have " the hair of 

 his head cut or clipped to a uniform length of 

 one inch from the scalp thereof." The case of 

 Ho Ah How vs. Matthew Nunan, involving the 

 validity of the ordinance, was decided by Jus- 

 tice Field in the U. S. Circuit Court. The 

 complaint was filed to recover $10,000 dam- 

 ages, and came before the Court on the plain- 

 tiff's demurrer to the defendant's plea of justi- 

 fication. Justice Field said : 



It appears that in April, 1876, the Legislature of 

 California passed an act " concerning lodging-houses 

 and sleeping - apartments within the limits of incor- 

 porated cities," declaring, among other things, that 

 any person found sleeping or lodging in a room or an 

 apartment containing less than 500 cubic feet of space 

 in the clear for each person occupying it, shall be 

 deemed guilty of a misdemeanor, and on conviction 

 thereof be punished by a fine of not less than ten dol- 

 lars nor more than fifty dollars, or imprisonment in 

 the county , jail, or by both such fine and imprisonment. 

 (Laws, sessions of 1875-'76.) Under this act the plain- 



tiff in April, 1873, was convicted and sentenced to pay 

 a fine of ten dollars, or in default of such payment to 

 be imprisoned five days in the county jail. Failing to 

 pay the fine, he was imprisoned. The defendant, as 

 sheriff of the city and county, had charge of the jail, 

 and during the imprisonment of the plaintiff cut off 

 his queue as alleged. The complaint avers that it is 

 the custom of Chinamen to shave the hair from tho 

 front of the head, and to wear the remainder of it 

 braided into a queue ; that the deprivation of the queue 

 is regarded by them as a mark of disgrace ? and is at- 

 tended, according to their religious faith, with misfor- 

 tune and suffering after death ; that the defendant 

 knew of this custom and religious faith of the Chi- 

 nese, and knew also that the plaintiff venerated the 

 custom and held the faith, yet, hi disregard of liis 

 rightSj inflicted the injury complained of; and that the 

 plaintiff has in consequence of it suffered great men- 

 tal anguish, been disgraced in the eyes of his friends 

 and relatives, and ostracized from association with his 

 countrymen ; and that hence he has been damaged to 

 the amount of $10,000. 



Two defenses to the action are set up by the de- 

 fendant ; the second one being a justification of his 

 conduct under an ordinance of the city and county of 

 San Francisco. It is upon the sufficiency of the latter 

 defense that the case is before us. The ordinance 

 referred to was passed on the 14th of June, 187 G, and 

 it declared that every male person imprisoned in the 

 county jail, under the judgment of any court having 

 jurisdiction hi criminal cases in the city and county, 

 shall immediately upon his arrival at the jail have tho 

 hair of his head " cut or clipped to a uniform length 

 of one inch from the scalp thereof," and it is made tho 

 duty of the sheriff to have this provision enforced. 

 Under this ordinance the defendant cut off the queue 

 of the plaintiff. 



The validity of this ordinance is denied by the plain- 

 tiff on two grounds : 1. That it exceeds the authority 

 of the Board of Supervisors, the body hi which the 

 legislative power of the city and county is vested; 

 and, 2. That it ia special legislation imposing a de- 

 grading and cruel punishment upon a class of persons 

 who are entitled, alike with all other persons within 

 the jurisdiction of the United States, to the equal pro- 

 tection of the laws. We are of the opinion that both 

 these positions are well taken. . . . 



The cutting off the hair of every male person with- 

 in an inch or his scalp, on his arrival at the jail, was 

 not intended and can not be maintained as a measure 

 of discipline or as a sanitary regulation. The act has 

 no tendency to promote either discipline or health. 

 The close cutting of the hair which is practiced upon 

 felons at the State Penitentiary, like clothing them 

 in striped pants, is to distinguish them from others, 

 and thus facilitate their capture in case of escape. 

 They are measures of precaution. Nothing of the 

 kind is practiced or would be tolerated with respect to 

 persons confined in a county jail for simple misde- 

 meanors, most of which are not of a very grave char- 

 acter. Tho plaintiff in this case, who had the option 

 of paying a fine of ten dollars, or of imprisonment 

 for five d;;ys, required no such clipping of his hair for 

 the purpose of discipline or detention. It was done 

 designedly to add torture to his confinement. 



But even if the proceeding could be regarded as a 

 measure of discipline or as a sanitary regulation, the 

 conclusion would not help the defendant, ror the Board 

 of Supervisors had no authority to prescribe the disci- 

 pline to which persons convicted under the laws of 

 the State should be subjected, or to determine what 

 special sanitary regulations should be enforced with 

 respect to their persons. That is a matter which the 

 Legislature had not seen fit to intrust to the wisdom 

 and judgment of that body. A discipline to which 

 disgrace is attached, and which is not enforced as a 

 means of security against the escape of the prisoner, 

 but merely to give torture to his confinement or to ag- 

 gravate its severity, can only be regarded as a punish- 

 ment additional to that imposed by the sentence. If 

 inflicted in consequence or the sentence, it is punish- 



