430 



LAW, CONSTITUTIONAL. (POLICE POWER OF STATES.) 



preservation of good order and the public morals. 

 The Legislature cau not, by any contract, divest itself 

 of the power to provide for these objects. They be- 

 long emphatically to that class of objects which de- 

 mand the application of the maxim, salus poputi su- 

 prema lex; and they are to be attained and provided 

 for by such appropriate means as the legislative dis- 

 cretion may devise. That discretion can no more be 

 bargained away than the power itself. 



II. The San Francisco Laundry Ordinance. 

 In April, 1884, the Board of Supervisors of San 

 Francisco passed an ordinance reciting that the 

 indiscriminate establishment of public laundries 

 and wash-houses endangered the public health 

 and safety, prejudiced the welfare of the com- 

 munity, and depreciated the value of property 

 in their neighborhood. It then enacted that it 

 should be unlawful for any person to establish 

 or carry on such business within certain desig- 

 nated limits of the city, without first having 

 obtained prescribed certificates from the health 

 officer and the Board of Fire Wardens. Its 

 fourth section declares that " no person own- 

 ing or employed in a public laundry, or wash- 

 house, within the prescribed limits, shall wash or 

 iron clothes within the hours of ten in the even- 

 ing and six in the morning, or on any portion 

 of Sunday." The fifth provides that no person 

 engaged in the laundry business, within the 

 limits, shall permit any one suffering from an 

 infectious or contagious disease to lodge, 

 sleep, or remain on the premises. Violation 

 of the ordinance is made a misdemeanor 

 punishable by fine or imprisonment, or both. 

 Francis Barbier was convicted, under the 

 fourth section, of washing and ironing clothes 

 between ten o'clock at night and six in the 

 morning. He was sentenced to jail for five 

 days. He obtained from the Superior Court 

 a writ of habeas corpus, and on the hearing 

 claimed that the fourth section of the ordi- 

 nance was in violation of the fourteenth amend- 

 ment to the Federal Constitution, and also of 

 certain sections of the State Constitution. The 

 grounds on which this contention was based 

 were: that the section discriminates between 

 the class of laborers engaged in the laundry 

 business and those engaged in other kinds of 

 business; that it discriminates between labor- 

 ers beyond the designated limits and those 

 within them ; that it deprives the petitioner of 

 the right to labor, and, as a necessary conse- 

 quence, of the right to acquire property ; that 

 it is not within the power of the Board of 

 Supervisors of the City and County of San 

 Francisco; and that it is unreasonable in its 

 requirements. The Superior Court overruled 

 these objections and dismissed the writ. 



The case was appealed to the United States 

 Supreme Court. In an opinion delivered Jan. 

 5, 1885, that tribunal held that it had no au- 

 thority to pass upon the questions raised un- 

 der the State Constitution, that its jurisdiction 

 was limited to a consideration of the Federal 

 question, whether the fourth section of the ordi- 

 nance wasin conflict with the fourteenth amend- 

 ment. It decided that on this point the ordi- 



nance was constitutional. The reasons for this 

 conclusion are thus set forth in the opinion of 

 the Court, prepared by Justice Field : 



The fourth section, so far as it is involved in the 

 case before the police judge, was simply a prohibition 

 to carry on the washing ana ironing of clothes in pub- 

 lic laundries and wash-houses, within certain pre- 

 scribed limits of the city and county, from ten o'clock 

 at night until six o'clock in the morning of the follow- 

 ing day. The prohibition against labor on Sunday is 

 not involved. The provision is purely a police regu- 

 lation within the competency of any municipality 

 nsessed of the ordinary powers belonging to such 

 ies. And it would be an extraordinary usurpation 

 of the authority of a municipality, if a Federal tribu- 

 nal should undertake to supervise such regulations. 

 It may be a necessary measure of precaution in a city 

 composed largely of wooden buildings like San Fran- 

 cisco that occupations in which fires are constantly 

 required, should cease after certain hours at night 

 until the following morning ; and of the necessity of 

 such regulations the municipal bodies are the exclu- 

 sive judges ; at least any correction of their action in 

 such matters can come only from State legislation or 

 State tribunals. 



The same municipal authority which directs the 

 cessation of labor must necessarily prescribe the 

 limits within which it shall be enforced, as it does 

 the limits in a city within which wooden buildings 

 can not be constructed. There is no invidious dis- 

 crimination against any one within the prescribed 

 limits by such regulations. There is none in the 

 regulation under consideration. The specification of 

 the limits within which the business can not be car- 

 ried on without the certificates of the health officer 

 and Board of Fire Wardens is merely a designation of 

 the portion of the city in which the precautionary 

 measures against fire and to secure proper drainage 

 must be taken for the public health and safety. It is 

 not legislation discriminating against any one. All 

 persons engaged in the same business within it are 

 treated alike, are subject to the same restrictions, and 

 are entitled to the same privileges under similar con- 

 ditions. 



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 pro- 

 tection 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 enti- 

 tled to pursue their happiness and acquire and enjoy 

 property; that they should have like access to tbe 

 courts of the country for the protection of their per- 

 sons and property, the prevention and redres-s of 

 wrongs, and the enforcement of contracts ; that no 

 impediment should be interposed to the pursuits of 

 any one except as applied to the same pursuits by 

 others under like circumstances ; that no greater 

 burdens should be laid upon one than are laid upon 

 others in the same calling and condition, and that in 

 the administration of criminal justice no different 

 or higher punishment should be imposed upon one 

 than such as is prescribed to all for like offenses. 

 But neither the amendment broad and comprehen- 

 sive as it is nor any other amendment, was designed 

 to interfere with the power of the State, sometimes 

 termed its police power, to prescribe regulations to 

 promote the health, peace, mora^ education, and 

 good order of the people, and to legislate so as to in- 

 crease the industries of the State, develop its resources, 

 and add to its wealth and prosperity. From the very 

 necessities of society, legislation of a special charac- 

 ter, having these objects in view, must often be had 

 in certain districts, such as for draining marshes and 

 irrigating arid plains. Special burdens are often 



