Thursday, February 27, 2020


Article Index

I. Re-visiting the Story

Yick Wo's own story in the case reports and histories is so sparse that it is difficult to remember the man himself, much less his co-appellant Wo Lee. But remember we should as long as we are going to valorize civil disobedients like Rosa Parks as keepers of our social conscience. Yick Wo came from China to the United States in 1861; by 1864 he had set himself up in the laundry business at 349 Third Street in San Francisco, right behind the current Moscone Convention Center. He had successfully maintained a licensed laundry in San Francisco for at least twenty-two years by 1885, when, after he was imprisoned for ignoring a San Francisco supervisors' ordinance, his habeas corpus petition reached the California Supreme Court.

Professor David Bernstein and other historians suggest that the Chinese launderers took up a necessary place in the Western social order: they would do women's work for nonwealthy White men as a price of earning a living and establishing a foothold in America. Men significantly outnumbered women for the first few decades after the pueblo of Yerba Buena was renamed San Francisco in 1847; women were only about 16 percent of the population in 1853. Immigration restrictions on the entry of Asian women, fueled in part by concerns that they would increase the number of prostitutes in the city, exacerbated this gender discrepancy. As a result, it was difficult to furnish [the bachelors of California] with clean linen when [they] desire[d] because there [weren't] enough washerwomen or wives around to do Those Native and Spanish American women who were in business began to charge such high prices that some workers sent their clothing to Hong Kong to be laundered and returned months later. However, [t]he Chinese and the free [N]egroes, of whom there was now [in 1851] a goodly sprinkling . . . . performed washing and women's business, and such menial offices as American White males would scorn to do for any

As immigrants, Yick Wo and his countrymen found themselves in a familiar place in American history: even though they were often performing work not desired by Whites, they remained the social targets of high economic and social anxiety in a tight California labor market. The San Francisco labor market stood at the vortex of four streams of hungry workers: disillusioned miners coming to the city at the end of the Gold Rush, skilled Chinese immigrants finishing work on the Transcontinental Railroad in 1869, White workers seeking refuge from an economic depression in the East, and immigrants sailing into San Francisco Bay. Historians tell us that White Americans were happy to employ the Chinese for distasteful or low-paying economic development work such as swamp clearing, mercury mining, and railroad building. White citizens were even willing to mine for gold alongside Chinese immigrants so long as they believed that there was sufficient supply for all. However, once it became clear that the unlimited wealth in the mining beds was just a myth, Whites began their efforts to exclude the Chinese from mining work, using laws (e.g., mining taxes), strikes, and unlawful violence to drive them out. As the economic downturn in the West pushed White Americans into the cities to try their hand at new occupations, they ran into stiff competition for jobs from skilled Chinese workers in textile, shoemaking, and cigar-making industries. As a result, they began to shift part of the blame for their unemployment from the capitalist class to the Chinese immigrants who took those jobs.

As in many other economic downturns in the United States, both false rumors and angry, ugly diatribes began to circulate about the Chinese. Perhaps most critically, White American workers came to believe the false tale that the Chinese were coolie labor or indentured servants whose near-slave working conditions were responsible for dragging down wages for all. White employers competing with Chinese entrepreneurs were only too happy to contribute to those rumors. A Knights of Labor Pioneer Laundry Workers Assembly flyer emanating from Washington D.C. typifies the way in which labor leaders exacerbated public fears:

MEN FROM CHINA come here to do LAUNDRY WORK . . . . The supply of these men is inexhaustible. Every one doing this work takes BREAD from the mouths of OUR WOMEN . . . . Will you oblige the AMERICAN LAUNDRIES to CUT THE WAGES OF THEIR PEOPLE by giving your patronage to the CHINAMEN? * * * If this undesirable element THE CHINESE EMIGRANTS are not stopped coming here . . . the end will be that our industries will be absorbed UNLESS we live down to their animal life.

Unemployed White workers' resentment of Chinese laborers and the capitalist class reached a fever pitch in the last quarter of the nineteenth century. By 1877, unemployed San Francisco workers were holding nightly demonstrations around City Hall, often targeted at Chinese immigrants. Because the Chinese immigrants had found a strong foothold in the industry (owning 240 of the 320 known laundries at the time Yick Wo was arrested for violating the laundry licensing ordinance), Chinese laundries were a visible target of these riots. On July 23, 1877, a White mob, fired up by orators at the so-called Sand Lot, marched off to destroy fifteen to twenty-plus Chinese laundries and stone the Chinese Methodist Mission. Mob violence against the Pacific Mail Steamship Line for playing a key role in transporting Chinese immigrant workers was headed off by a Pickle-Handle brigade of 4,000 to 5,000 men organized by the Committee of Safety, though riots continued to flare for three more days. Subsequently, Dennis Kearney, who became the chief leader of these protesters, marched hundreds of laborers to the Nob Hill residential district where most of the capitalists lived. By 1880, crowds of unemployed workers would amass near San Francisco city hall on a daily basis and march to factories and workshops, demanding that Chinese workers be fired and asserting their rights to available jobs and necessary occupations. By 1885-86, race rioting and threats of racial retaliation broke out in Wyoming, Washington, and Oregon as well as other parts of California. Mobs routed Chinese immigrants out of their homes, burned their dwellings, forced them onto departing boats, and murdered them without sanction. On October 24, 1871, a thousand Los Angeles residents took ropes, knives, and pistols to Chinatown, where they pulled the frightened Chinese from hiding places and hanged nineteen by the neck. The mob then looted Chinese stores and proudly paraded through the streets, displaying what they had stolen. Of the 150 men indicted for this assault, only six were convicted, and those six were quickly released from their sentences.

These riots sparked even more anti-Chinese politics at every level in California. Dennis Kearney threatened to mobilize followers to use force if White laborers' demands were not met, and he led with the battle cry, The Chinese must go! Kearney's 1878 Workingmen's Party of California platform declared its intent to wrest the government from the rich and restore it to the people and to rid the country of cheap Chinese labor by any The Workingmen advocated barring Chinese workers from public works and mercantile professions and prohibiting them from becoming citizens. The party successfully inserted provisions into the 1879 California Constitution that prohibited corporations or the government from employing Chinese workers and denied Chinese immigrants property protections. They also delegated the removal of Chinese immigrants from their homes and businesses to cities and clarified that no Chinese-born citizen could become an elector in California.

With few exceptions, California's governing class did not resist these nativist movements but instead poured fuel on the flames. From Governor John Bigler, who in 1852 spoke to the legislature on the evils of Asian immigration, to San Francisco's John Miller, who chaired the Committee on the Chinese in the California constitutional convention, government officials lined up against the Chinese. Indeed, in 1879, the ballots of all parties fielding candidates indicated that they were against Chinese immigration, and the popular vote against Chinese immigration in San Francisco was 40,030 to 229. More ominously in terms of checks and balances, the chief justice of the California Supreme Court and five of the six associate justices elected that year were candidates of Kearney's Workingmen's Party, and some remained on that court as late as 1892. That may explain the uneven record on cases filed in the California Supreme Court, including the Yick Wo decision handed down in December 1885, which found against Yick Wo.

Responding to the angry protests over the Chinese presence in the laundry industry, the mayor and the San Francisco board of supervisors passed more than a dozen ordinances restricting laundries. These ordinances included maximum-hours regulations aimed at preventing Chinese laundry owners from working different shifts in shared buildings and zoning laws that attempted to push the Chinese laundries away from their customer base in White residential neighborhoods to sparsely populated or toxic industrial areas of the city. They also included ordinances intended to harass the Chinese: ordinances prevented the delivery of laundry with horse-led carriages, rooftop drying racks, and mouth tubes used to squirt starch on laundry--all practices primarily utilized by Chinese laundries.

Of more serious concern to their businesses, the supervisors passed structural ordinances like the one in Yick Wo, which attempted to drive Chinese launderers out of business altogether, or at least out of town. In 1880, the board of supervisors unanimously passed Order 1569, which prohibited anyone from maintaining a laundry within San Francisco County without the consent of the board of supervisors unless the laundry was constructed of brick or stone. Violation of this order was a misdemeanor, punishable by a $1000 fine and/or up to six months in the county jail. As the United States Supreme Court recited, this ordinance vested the entire discretion for approving laundries constructed with wood on the supervisors, who subsequently denied all Chinese applications for licenses and granted all but one of the White owners' applications.

In light of recurrent violence and scapegoating, Yick Wo's decision to challenge the supervisors' regulation by continuing to operate his laundry without a license should surely be enshrined in the annals of civil disobedience along with the 1960s lunch counter sit-ins. Yet, Yick Wo's stand was part of a broader response by Chinese immigrants and their prominent White lawyers who challenged the several forms of discrimination that governed their lives. That broad-based attack was a forebear of the coordinated and planned attacks on racial segregation in the South that the nation witnessed in the 1950s and 60s.

Among other forms of oppression, the Chinese were the targets of discriminatory taxes, which they consistently fought in the courts and legislature as best they could. For example, a miner's tax had to be paid by any foreigner (miner or not) who lived in a mining district, targeting the Chinese in effect if not by name. Similarly, commutation taxes required ship owners to post a $500 bond (or a payment of $5 to $50 per passenger) on each Chinese immigrant coming into the country, and more for mentally ill or disabled passengers. The 1862 Chinese police tax, designed to discourage Chinese immigration, forced all Chinese laborers to pay $2.50 per month.

Government policy and law also segregated the Chinese from White society both figuratively and literally. For example, an 1863 statute prevented Chinese persons from testifying in court against White persons. There were also attempts to contain Chinese persons within Chinatown or segregate them into certain other areas of San Francisco, and Chinese children were turned away from public schools.

After the Chinese Exclusion Acts were passed on the heels of overblown rumors of massive immigration fraud, legal Chinese immigrants fought battles with federal authorities to re-enter the country after they had left. Even native-born Chinese Americans who came back into the country met challenge after challenge to their citizenship. As an example of their aggressive fight for citizenship or legal residence, 2,657 habeas petitions were filed in California federal courts after the Exclusion Acts, from 1891 to 1905, all protesting detention of immigrants or citizens in California ports, compared to 273 such petitions filed by European entrants on the East Coast. With the help of the Chinese Six companies and the Tung Hing Tong trade association, many hired prominent American lawyers and underwrote test cases that challenged discriminatory legislation as it was passed. Indeed, the Supreme Court heard seventeen cases involving Chinese immigrants from 1881-96. Moreover, Chinese people sent delegations to the state legislature to plead their cases, and even hired a lobbyist by 1860 to fight discriminatory laws.

Yick Wo and his fellow defendants were not alone in this struggle against the laundry ordinances. Nor was Yick Wo the first to take a stand, though his has been described as the perfect test case given his many years in the business and a clean bill of health from sanitary and other inspectors. Quong Woo was convicted for violating a June 10, 1882 laundry ordinance which prohibited the establishment of laundries without neighbors' consent. Quong Woo had been a licensed laundryman for eight years at the time of his arrest and alleged in his habeas petition that he did not believe he could secure the approval of twelve citizen-taxpayers on his block, presumably because of racial prejudice.

After the ordinance affecting Quong Woo was invalidated and then re-instituted without the citizen permission provision, Woo Yeck, Tom Tong, and Hung Hang challenged the ordinance, apparently for similar issues. In Wo Lee, Judges Sawyer and Field invalidated this ordinance as resting on the arbitrary will of the supervisors and noted that much of the prohibited 150 square miles was pasture lands, sand banks, and unoccupied islands, where a wooden laundry could cause no harm. Even in the cases where Chinese laundrymen won, it was not without comment, however ironically meant, on their outsider status.

Yick Wo was one of many Chinese laundrymen who had petitioned the board of supervisors for permission to operate in wooden buildings after Orders 1559 and 1569 were sustained by California courts. Despite his certificate from the health officer and board of fire wardens that his building was fire safe and properly drained, Yick Wo was denied permission to operate. On August 22, 1885, he was arrested for operating his laundry without a permit, convicted in the police court, and imprisoned. Two days later, his lawyers filed a petition for a writ of habeas corpus in the California Supreme Court, which upheld the ordinance on December 29. Yick Wo's lawyers then turned to Judge Lorenzo Sawyer in the federal Circuit Court. However, Judge Sawyer concluded that the federal court could not hear a case first commenced in state court. Wo Lee, also convicted and imprisoned though he had operated for twenty-five years in the same location, chose another avenue: he filed a habeas corpus petition directly in the federal court, only to be rebuffed by Sawyer on jurisdictional grounds. By January 29, 1886, Yick Wo and Wo Lee had both appealed to the U.S. Supreme Court.

In the California Supreme Court's decision in Yick Wo, the question of equal protection was only a note. Arguing that many individuals have to give up individual rights that cause serious mischief to others so everyone can enjoy the general benefits flowing from government, the California court sustained the ordinance as a familiar fire regulation in a city where the danger from fire is ever present and A terrible fire had occurred in a Chinese laundry in February 1880, prompting the supervisors to call for brick or stone laundries and the fire marshal to claim that the Chinese were as a race careless in the use of However, most witnesses before the supervisors admitted that fires in Chinatown were no more prevalent than in other parts of the city. One insurance witness even admitted that the reason his company stopped insuring businesses in Chinatown was the company's fear of White arsonists starting fires there.

The California court conceded that all such legislation is subject to abuse by officials without the capacity and integrity essential to a proper administration of the trust reposed in them, but the court seemed reluctant to invalidate any law because of the lack of these virtues. Rather, the court disposed of Yick Wo's equal protection claims by citing U.S. Supreme Court laundry cases that held that previous laundry ordinances were uniformly applicable to all laundries, and therefore not unconstitutional. In contrast, the federal court also focused on the potential confiscation of Chinese property and livelihood in violation of due process. To the extent that the federal Circuit Court focused on class legislation, it directly targeted the economic implications of such legislation:

[t]he necessary tendency, if not the specific purpose, of this ordinance . . . is to drive out of business all the numerous small laundries, especially those owned by the Chinese, and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital.

In contrast to the California Supreme Court's opinion, Federal Circuit Judge Sawyer's opinion (despite ultimately declining to exercise jurisdiction) minced no words in attacking the ordinance. Citing Quong Woo and a similar discretionary Baltimore ordinance on steam engine businesses, Sawyer in Wo Lee acknowledged that the ordinance permitted the supervisors to engage in racial discrimination, noting the notorious public and municipal history of the Indeed, Judge Sawyer found that the aim of the law, administered as a prohibition against the Chinese, must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the course of an active and aggressive branch of public opinion and of public notorious Sawyer introduced the argument that the ordinance violated the Fourteenth Amendment, a ground later accepted by the U.S. Supreme Court. U.S. Justice Stanley Matthews' opinion in Yick Wo picked up both due process property and equality themes, distinguishing the San Francisco laundry ordinance from other discretionary laws. He noted that the law conferred naked and arbitrary power without any guidance to ensure the rule of law would be obeyed. Though he verged toward invalidation under the due process clause because of the law's infringement on a right to occupation, Matthews ultimately rested the Court's decision on the discriminatory nature of the ordinance; as he stated, there was no other explanation for the ordinance but hostility to the race and nationality to which the petitioners With that, Justice Mathews intoned the principle that Yick Wo has become famous for:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Despite the fact that Yick Wo has gone down in the annals of American jurisprudence as an important civil rights case, it was greeted by the popular press of the time with acrimony. The San Francisco Evening Bulletin published a scathing editorial, noting that equal protection was fine in theory . . . but it could only be based on an equality of habits, acquirements, and tendencies. The problem with the Chinese was that they had habits and tendencies that made their laundries And, in a parallel to modern-day assaults against Supreme Court activism, the Evening Bulletin attacked the Supreme Court's judicial Bourbonism, suggesting that the Court was unwilling to concede the facts about the Chinese. Indeed, in a claim reminiscent of Justice Scalia's and Thomas's complaints against Supreme Court platonic guardians, the newspaper noted ironically, [t]he Delphic oracle at Washington intimates that we can do nothing to bridge the chasm which separates [the Chinese] from the modern races of men. We can do nothing to elevate or reform them, for that would be discrimination, contrary to the Fourteenth The newspaper concluded that the only solution was to exclude the Chinese, a view that was even then being implemented by the federal government, as evinced by the Chinese Exclusion Act of 1882.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law


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