of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisin of race, hope that some way may be devised to prevent their further immigration. We feel the force and importance of these considerations; but the remedy for the apprehended evil is to be sought from the general government, where, except in certain special cases, all power over the subject lies. To that government belong exclusively the treaty-making power and the power to regulate commerce with foreign nations, which includes intercourse as well as traffic, and, with the exceptions presently mentioned, the power to prescribe the conditions of immigration or importation of persons. The state in these particulars, with those exceptions, is powerless, and nothing is gained by the attempted assertion of a control which can never be admitted. The state may exclude from its limits paupers and convicts of other countries, persons incurably diseased, and others likely to become a burden upon its resources. It may perhaps also exclude persons whose presence would be dangerous to its established institutions. But there its power ends. Whatever is done by way of exclusion beyond this must come from the general government. 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 remain; whether they shall be restricted in business transactions to such as appertain to foreign commerce, as is practically the case with our people in China, or whether they shall be allowed to engage in all pursuits equally with citizens. For restrictions necessary or desirable in these matters, the appeal must be made to the general government; and it is not believed that the appeal will ultimately be disregarded. Be that as it may, nothing can be accomplished in that direction by hostile and spiteful legislation on the part of the state, or its municipal bodies, like the ordinance in question-legislation which is unworthy of a brave and manly people. Against such legislation it will always 30

be the duty of the judiciary to declare and enforce the paramount law of the nation." 1

§ 344. State statutes upheld; Chinese Laundry Cases.— It must not be presumed, however, that the Federal Courts have always interfered to prevent State action in regard to matters which are wholly under their control, and that they have used the treaty-making power as an excuse for interfering in their internal affairs; in 1885 the same learned Justice of the Supreme Court who had declared the San Francisco queue ordinance invalid, sustained a municipal ordinance of San Francisco imposing certain regulations and restrictions upon laundries, and which was as undoubtedly aimed directly at the Chinese as the queue ordinance had been; the Supreme Court held, however, that the regulation of laundries was a matter which came within the right of the municipality, and that treaty stipulations as to rights to live and labor should not be used to prevent the proper enforcement of municipal regulations.1

§ 343.

15 Sawyer p. 563-564. § 344.

business within certain hours, that it permits other and different kinds of business to be done within those hours.

66

1 Soon Hing vs. Crowley, 113 U. S. 703, U. S. Sup. Ct. 1885, FIELD, J. Municipal restrictions imposed In this case the San Francisco upon one class of persons engaged municipal ordinance in regard to in a particular business, which are laundries was under consideration | not imposed upon others engaged and the question of whether or not in the same business and under it was aimed expressly at the Chi-like conditions impair the equal nese was involved. right which all can claim in the en

The points decided are stated in forcement of the laws. the syllabus as follows:

"The decision in Barbier vs. Connolly, U. S. Sup. Ct. 1885, FIELD, J., 113 U. S. 27,-that a municipal ordinance prohibiting from washing and ironing in public laundries and wash-houses within defined territorial limits, from ten o'clock at night, to six in the morning, is a police regulation within the competency of a municipality possessed of ordinary powers-affirmed.

"It is no objection to a municipal ordinance prohibiting one kind of

"When the general security and welfare require that a particular kind of work should be done at certain times or hours, and an ordinance is made to that effect, a person engaged in performing that sort of work has no inherent right to pursue his occupation during the prohibited time.

"This court cannot inquire into the motives of legislators in enacting laws, except as they may be disclosed on the face of the acts, or be inferable from their operation,

345. Numerous other decisions involving Chinese treaties and statutes.-There have been numerous decisions arising out of both State and Federal legislation in regard to the immigration of Chinese into this country, and the regulation of their conduct after their arrival; it is impossible to analyze them all in this chapter, but a list of Chinese legislation cases will be found in the notes. It will well repay any one studying in detail questions regarding the extent to which the Federal treaty power can regulate State laws and municipal ordinances to carefully examine all of those opinions, as they are the carefully prepared utterances of some of our ablest jurists.

$346. Great practical advantages of Federal Judiciary as a forum for settling disputes as to treaty rights.-Regardless of the legal results of those opinions, they bring prominently forward the great value to this country of the Federal Judiciary as the balance wheel that so regulates Federal and

considered with reference to the condition of the country and existing legislation."

enactment, which in any respect tends to sustain this allegation. And the rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the leg

The Chinamen complained that this ordinance was expressly aimed at them, but in regard to that the court said at the close of the opin-islators in passing them, except as ion, pp. 710-711:

“The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the city and county of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation, and residence there, and not for any sanitary, police, or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its

they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which fol lows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.

State powers that although it may, at times, be necessary to assert one in order to curb the other, it can be done through the medium of courts presided over by impartial. judges who can determine whether there has been an improper exercise of power on one side, or an attempt on the other to overthrow proper legal restraint; in no instance has the advantage of the Federal Judiciary been exhibited to a greater degree than in the settlement and adjustment of the questions arising out of the Chinese immigration and the legislative action of the States most affected thereby, as well as of the Congressional action of the United States, in regard thereto.

§ 347. Treaties with Indians; Chief Justice Marshall's opinion as to their sanctity; Indian treaties and State laws. Treaties with Indians, while they differ in some respects from treaties with foreign nations, have been held by Chief Justice Marshall to be entitled to the same consideration in regard to their construction, and to the same limitations in regard to legislative action as treaties with foreign powers. Decisions affecting treaties with Indians are, therefore, in many respects, of equal weight in regard to these points as those affecting treaties with foreign nations.1

The treaty between the United States and the Bannock Indians gave the Indians certain rights to hunt on unoc cupied lands which afterwards became a part of the State of Wyoming. Game laws having been enacted in Wyoming, Race Horse, a Bannock Indian, was arrested for violating them. Judge Riner, in the United States Circuit Court held that, as the provisions of the State statute were inconsistent with the treaty, the statute could not be enforced against the Indians, as the treaty under the Constitution was paramount. Here was a direct conflict between the State and Federal officers in regard to a subject-matter entirely under the control of the laws of the State. The cases And in the present case, even if tioned; and of this the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class men

pretence."
$ 347.

there is no

1 See the Cherokee Indian cases referred to at length under §§ 408, et seq., of chap. XIV, post.

2 In re Race Horse, U. S. Cir. Ct.

already referred to, as well as others, were referred to in Judge Riner's opinion. The right of the State to pass the laws was maintained, and it was conceded that "the State has the unquestioned right to pass laws placing restrictions and limitations upon the time and manner of taking wild game and fish. The wisdom of such legislation is

.

apparent, but that these powers are subject to the right of the General Government to exercise the powers conferred upon it by the Constitution is perfectly clear."

This case was subsequently reversed by the Supreme Court on the ground that certain provisions in the statute admitting Wyoming as a State had abrogated the treaty so far as they were in conflict therewith because it was a later expression of Congress and superseded all prior statutes and treaties. Reference will be made to that element of the decision in a subsequent chapter, but the point that a State law which violated the rights under treaties with Indians were void so long as the treaties remained in force was not affected by the reversal of the decision on the grounds taken by the Supreme Court. Indian treaties will be the subject of an entire chapter and only a casual reference is made at this point to the general effect of State laws and treaties.1

$348. Decisions of State courts as to State laws and treaties. The decisions referred to so far have been made Wyoming, 1894, RINER, J., 70 Fed. | nal value, violates no provision of Rep. 598. the Constitution of the United States.

8 Ward vs. Race Horse, U. S. Sup. Ct. 1896, WHITE, J., 163 U. S. 504. See p. 514 and see dissenting opinion, BROWN, J.

4 Some of the cases involving the relative effect of State laws and Indian treaties are here cited; others will be found under appropriate sections of chapter XIV, post.

Taylor vs. Brown, U. S. Sup. Ct. 1893, 147 U. S. 640, FULLER, CH. J. Bell's Gap Railroad Co. vs. Pennsylvania, 134 U. S. 232, affirmed as to the point that a provision in a State law for the assessment of a State tax upon the face value of bonds, instead of upon their nomi

The New York Indians vs. United States, Ct. Claims, 1895, 30 Ct. Claims, 413.

The New York Indians, U. S. Sup. Ct. 1866, 5 Wallace, 761, NELSON, J.

The statute of a State authorizing the sale of lands for taxes laid by a State is void if it in any way conflicts with an Indian treaty, and any sale under such tax is void so far as it affects the rights of the Indians to occupy the lands. Also the right of Indians to sell their lands discussed.

Stevens vs. Thatcher, Sup. Ct. Me. 1897, 91 Maine, 70, EMERY, J.