It was a contest between two prominent Sacramento attorneys as to whether Chinese immigrants would be expelled from the city limits in 1886. On one side was Grove L. Johnson, chairman of the local Sacramento Anti-Chinese association. Constitutional law was represented by Amos Catlin. The issue was if the Sacramento City Board of Trustees could pass an ordinance making it a crime to live in Sacramento while being Chinese.
Anti-Chinese clubs, societies, and associations were popping up all over California in the early 1880s. The core of the resentment toward the Chinese immigrants was that they provided cheap labor relative to employing white men. Layered on top of the economic issue was a xenophobia focused of the dress, customs, and religion of Chinese immigrants. As gold mining withered away, many Chinese relocated from the country into urban settings such as Sacramento.
The final complaint against the Chinese revolved around crime and drug use that was increasing in Chinese quarters within Sacramento. Conveniently ignored was the fact that it was white men who enabled some of the petty crime by patronizing Chinese houses of prostitution, gambling, or opium dens. Further, the crime associated the public drunkenness from the numerous saloons in Sacramento was tolerated because it was white men getting drunk, robbing, burglarizing, and assaulting city residents.
Many attempts had been made to harass the Chinese in the hope they would just leave Sacramento and California. There were targeted taxes on Chinese miners and Chinese residing in Sacramento. Those taxes were overturned in the courts. There were movements to boycott any employer who hired Chinese labor and many merchants proudly advertised that they employed no Chinese. Of course, there was the verbal and physical harassment and assaults upon the Chinese people. But still, the Chinese stayed in Sacramento and other communities in California working in the agricultural fields, mining, and providing domestic services.
Grove Johnson Drafts Chinese Eviction Ordinance
In December of 1885 numerous Anti-Chinese advocates concluded that a statewide convention was necessary to address the Chinese question. The big Anti-Chinese convention was to be held in March 1886 and each California county was to send delegates.[1] Grove Johnson, picking up on the work that C. F. McGlashan was undertaking in Truckee to remove the Chinese, wanted to set an example for the rest of the state. In association with several other Sacramento men, Johnson proposed the City of Sacramento pass an ordinance making it crime for Chinese to reside within city limits. The Sacramento Board of Trustees approached another prominent attorney, Amos Catlin, for his opinion on the ordinance that Johnson had drafted.
Johnson and Catlin were two very different attorneys. Johnson could be bombastic, sarcastic, and very theatrical in the courtroom. He also had no problems walking ethical tightropes when necessary to win a case or cause. Johnson was caught creating fictitious voters up in Folsom in 1867 in an attempt to sway future election results. Catlin, on the other hand, was quiet, humble, modest and had a near religious view of the law. He had forged his reputation based on tackling complex legal issues and thoroughly researching them before making a case.
While Johnson and Catlin would often find themselves as opposing counsels in the courtroom, they also worked together. Both men represented Count Giulio Valensin in divorce proceedings brought by Alice Valensin in the summer of 1885. Alice was suing for divorce, custody of their son Pio, and a large share of their Arno Ranch in south Sacramento County.[2] Johnson and Catlin prevailed when Judge McFarland denied Alice’s application for divorce on the grounds that her disagreements with Giulio did not amount to severe cruelty.
Both Johnson and Catlin viewed the Chinese in Sacramento as an evil presence.[3] However, Johnson was more militant about the removal of the Chinese since the federal government would not amend the Burlingame Treaty with China or completely halt Chinese immigration. Johnson then drafted the Chinese eviction notice he was hoping the Board of Trustees would enact.
Proposed Sacramento Chinese Eviction Ordinance
To the Honorable Board of Trustees of the City of Sacramento: The undersigned, a committee appointed by the Anti-Chinese Association of Sacramento for that purpose, have prepared and herewith present for your consideration an ordinance for the removal without the limits of the city of Sacramento of the Chinese, and respectfully request its adoption by you.
Grove L. Johnson, Chairman, W. R. Cluness, G. G. Tyrrell, R. M. Clarken, L. S. Tayler
Whereas, The presence of Chinese within the limits of the city of Sacramento is dangerous to the morals and prosperity of the city of Sacramento; and whereas the presence of Chinese within the city brings with it and casts upon the taxpayers of Sacramento all the burdens and evils necessarily attendant upon the presence in a community of vagrants, paupers, mendicants, criminals and invalids afflicted with contagious and infectious diseases; and whereas, the youth of both sexes in the city of Sacramento are, by reason of the presence of Chinese in the city, exposed to daily and hourly contamination from them, and many have already been ruined in body, mind and soul by participation at the ceaseless urging of the Chinese, in the horrible, indecent, wicked and bestial practices of the Chinese and by their corrupt teachings; and whereas, the Chinese in Sacramento have, in violation and defiance of the law, planted and maintained opium “joints” or dens, in our city, and the terrible results of the sin of opium-smoking, practiced therein, are now seen in the pallid wasted faces and forms, the demoralized and degraded minds and the hopeless wrecks of what were once bright and promising young men and women of our own race, was well as in the Chinese themselves, and the fearful habit of opium-smoking is on the increase to such an extent as to be alarming in the highest degree; and whereas, it will be for the well being and peace of all the people to have the Chinese removed without the limits of the city of Sacramento, and such removal will be beneficial to the morality and material prosperity of the city, and whereas, the removal of the Chinese will cleanse Sacramento of a plague spot and a pestilence-breeding locality, where the laws of decency, health and good government are alike disregarded and violated, and from which visitors, travelers and immigrants seeking homes derive bad impressions of Sacramento; and whereas, the Chinese are aliens, ineligible to become citizens of the United States, and their presence in our midst is in violation of the wishes and views of the whole people of California, as expressed in our State Constitution: and whereas the Constitution of the State of California, Article XIX., gives us the power to order their removal from the city, and is mandatory in its directions to the Legislature and ourselves; and whereas the Act of the Legislature of the State of California, Chapter XXIX., of the Statutes of 1880, gives us, in express terms, the power, and in like express terms makes it our duty, to pass and enforce all Acts, ordinances and resolutions necessary to cause the removal without the limits of the city of Sacramento of any Chinese now within, or hereafter to come within such limits, now, therefore.
The Board of Trustees of the city of Sacramento ordains as follows:
Section 1. It is hereby made the duty of each and every Chinese within the limits of the city of Sacramento, and they are hereby, each and every one, directed to remove without the limits of the city of Sacramento on or before the 1st day of March, 1886.
Section 2. From and after the 1st day of March, 1886, it shall be unlawful for any Chinese to reside or remain within the limits of the city of Sacramento.
Section 3. A violation of the provisions of this ordinance shall be a misdemeanor, and shall be punished by a fine of not less than $50 nor more than $500, or by the imprisonment in the County Jail for not less than fifty days or more than six months, or by both such fine and imprisonment.
Section 4. The ordinance shall take effect and be in force from and after its passage.[4]
Amos Catlin’s Constitutional Answer
To be fair, most white men, and especially elected politicians, spewed great amounts of racist rhetoric toward the Chinese. When the Board of Trustees was given a hammer to hit the Chinese in the form of the proposed eviction notice, they suddenly feigned ignorance on how to use the tool. Their racist bluster did not match their political gumption. The board stepped back and called on Amos Catlin for his opinion. Amos obliged the request with a formal opinion on the ordinance.
To the Honorable Board of the Trustees of the City of Sacramento: ln response to your request for my opinion as to the constitutional validity and binding force of the anti-Chinese ordinance proposed on the 11th instant, for your consideration by a committee of an Anti-Chinese association, I have to say:
That said ordinance is a self-manifest and palpable violation of the Federal Constitution, in that it is aimed to exclude from the city of Sacramento all persons of a certain nationality; that is to say, all Chinese, without regard to age, sex, occupation, or other condition. To some minds this does not perhaps appear so apparent. But to the same minds, if an ordinance were framed, with a whereas even more verbose and extended than this in recitation of supposed evils, followed by a section making it a misdemeanor, punishable by fine and imprisonment for any Italian, Mexican, or Portuguese to reside in or remain within the limits of the city after a specific time, it would at once become perfectly clear that the Federal Constitution (State Constitution and laws to the contrary notwithstanding) does not tolerate, but forbids such class legislation.
It would need no reference to decisions of Courts. The common intelligence and sense of the American mind, trained and habituated not to know any distinction between the rights of property and personal liberty of the native born, and the resident alien, would respond at once by an appeal to the Constitution of the United States, to which, and to the treaties made by the United States with foreign powers, all the people of the State of whatever race, or of whatever birth, as well the native as the alien born, must look, and may I add, may look with perfect confidence for protection, against State or municipal invasion of their rights. l would advise your Honorable Board to call upon those who advocate the proposed ordinance, to furnish authority for the proposition, that under the Constitution of the United States or by virtue of any treaty between the General Government and China, that Chinese may lawfully be excluded from Sacramento. You may exclude “all vagrants, paupers, mendicants, criminals and invalids afflicted with contagious and infectious diseases,” but your ordinance for that purpose must aim at all of such persons, not those of the Chinese race exclusively. A law making vagrancy a misdemeanor is valid; but a law making vagrancy by Chinese a misdemeanor would be invalid. So, in my opinion, the proposed ordinance, by reason of its application to Chinese exclusively, would fall dead beneath the weight of the fourteenth amendment of the Federal Constitution. This part of the Constitution contains the following golden words:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.”
The following is from the treaty with China: “Article 5. The United States, and the Emperor of China, cordially recognize the inherent and inalienable right of man to change his home and allegiance, and, also, the mutual advantages of the free migration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as permanent residents.”
“Article 6.- Citizens of the United States visiting or residing in China, shall enjoy the same privilege, immunities or exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation, and reciprocally, Chinese visiting or residing In the United States shall enjoy the same privileges, immunities and exemptions in respect to travel or n residence as may there be enjoyed by the citizens or subjects of the most favored nation.”
By the above it will be seen that Chinese are guaranteed the same rights that [of] other aliens. The promoters of the proposed ordinance must imagine that the State of California may at will abrogate this treaty.
The question was very thoroughly considered by the United States Circuit Court (In re. Parrott, 6 Saw., 349), where it was held that “any provision of the Constitution or laws of California in conflict with the treaty with China is void.” and where the whole of Article XIX. of the State Constitution was swept out of the category of law.
In that case one of the Judges said: “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 not only be defied, but resisted and overcome. The attempt to [a]ffect 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 a municipal ordinance.”
Article VI. of the Constitution of the United States says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and the Judges in every State shall be bound thereby, anything In the Constitution or laws of any State to the contrary notwithstanding.” Legislative and executive officers of States and municipalities are as much bound as judicial officers by the Federal Constitution, and by their oaths are bound to support it.
Section 1977 of the United States Revised Statutes, passed to give effect to the fourteenth amendment, provides that “all persons (not all citizens) within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.”
It is not possible for anyone to be so blind, however much he may affect a mental obliquity, as not to see that, under the paramount law of the land, municipal legislation requiring Chinamen to abandon their leasehold estates in this city, and remove their goods and chattels outside the city limits, would be inoperative, null and void.
In the case of Baker vs. City of Portland (5 Sawy., 566), the United States Circuit Judge said: “The right to reside in a foreign country implies the right to labor there for a living.”
In the same case, after rehearsing the provisions of the Chinese treaty, the Court said: “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.”
These principles have recently been recognized by the Supreme Court of California, in what is known as the laundry case in San Francisco, where it was held that: “A municipal regulation which applies alike to all persons engaged in a given pursuit without distinction as to nationality, residence, age, sex or condition, is not, when otherwise regular and valid, subject to the criticism of being in violation of treaty obligations existing between the United states and China.”
The Constitution of the United States will surely leap over any wall of exclusion which municipal folly may undertake to erect against the people protected by this treaty. An eminent commentator upon the Constitution says: It must always be borne in mind that the Constitutional laws and treaties of the United States are as much a part of the law of every state as its own local laws and Constitution.”
From the above considerations and authorities, and many others that might be adduced, it must be apparent that the proposed ordinance cannot be sustained as a police regulation. In the Parrott case, the Act of the Legislature of 1880, making it an offense for a corporation to employ Chinese, was defended upon that ground, it being claimed that the object of the law was to prevent “vagrancy, pauperism, mendicity, and crime.” But the Court said: “There are other objections to an unlimited immigration of that people, founded on distinctions of race, and differences in the character of their civilization, religion and other habits, to my mind of a far more weighty character. But these, unfortunately for those seeking to evade treaty stipulations and constitutional guarantees, can by no plausible misnomer, be ranged under the police powers of the State.” And in referring to the futility of such legislation, the Court said: “To persist on the part of the State in legislation in direct violation of these treaty stipulations, and in endeavoring to enforce such void legislation is to waste efforts in a barren field, which, if expended in the proper direction, might produce valuable fruit.” In what are known as the “Slaughter-house Cases,” reported in 83 U.S. Rep., which did not involve any question of treaty obligations, it was claimed that an Act of the Louisiana Legislature requiring all cattle yards to be kept, and all animals to be slaughtered at on place within certain limits, including the city of New Orleans, and subjecting all butchers to the payment of certain fees for the use of the accommodations furnished by a chartered company at the designated place, was an infringement of the Fourteenth Amendment. But the United States Supreme Court, by a majority decision (a strong minority dissenting), held that the Act was a police regulation for the health and comfort of the people (the statute locating the cattle yards and slaughter pens where health and comfort required): that it did not prohibit butchers from following their occupations in the city of New Orleans, nor make any discriminations affecting their business, nor interfere with their business, otherwise than to subject it to wholesome sanitary regulations. The Court said: “The butcher, then, is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and pay a reasonable compensation for the use of the accommodations furnished him at that place.”
These cases illustrate the wide gulf of difference that exists between those acts of hostility against private rights which are prohibited by the Constitution, and those which may be lawfully employed to regulate the enjoyment of those rights. If the pretense be made (it can be nothing above a pretense) that the expulsion and exclusion of Chinese from Sacramento is merely an exercise of those powers of police regulation which it is conceded belong to the States, the answer, if it does not already sufficiently appear, may be found in the quick frustration of the several attempts heretofore made in this State to evade treaty obligations and constitutional guarantees. The law imposing a special license tax upon Chinese miners, the Cue ordinance, the Act requiring bonds from ship-owners as a condition for being allowed to land certain enumerated classes of passengers (Vide 98, U.S. Rep., 275), all sought cover under the pretense, but were promptly stripped of their thin disguises and consigned by the Federal Courts to deep and early graves.
Relief from the Chinese evil can be had only through the agency of the General Government. The remedies, so far as legislation is concerned, are exclusively within the domain of Federal power. Any attempted usurpation of its jurisdiction by State, county or municipal interference, especially that kind of interference which proposed to inflict personal injury and wrong upon Chinese residents, will retard, not advance, the efforts that are being made in Congress to obtain such relief. A. P. Catlin.[5]
Catlin gave the Board of Trustees cover and grounds to reject the ordinance and save political face. The person who seemed to take the rejection of the Chinese eviction notice the hardest was Grove Johnson. He addressed the Anti-Chinese Association meeting rebutting Catlin’s legal arguments.[6] Regardless of the rousing cheers to Johnson’s Anti-Chinese tirades, there was no escaping the fact that Catlin’s opinion that the ordinance violated the U. S. Constitution and the Burlingame Treaty was widely accepted as a sound legal assessment.
Johnson could only resort to his typical sarcastic courtroom comments when referring to his friend’s legal gravitas in Sacramento.
Now, Mr. Catlin has written an opinion; the Sacramento editor has pronounced the ordinance unconstitutional and I suppose that settles it. Now, Mr. Catlin is an able lawyer and an excellent citizen, but I do not see why – simply because he is asked to write an opinion, and presumably for a fee – he should be set up as a standard and unimpeachable authority on constitutional law. You have all doubtless read patent medicine advertisements that say that none is genuine without so and so is blown in the bottle, and I suppose that hereafter all constitutional law will be labeled: This is constitutional law, W. A. Anderson, City Attorney, Correct: Sacramento Editor. Approved A. P. Catlin.[7]
Had Sacramento passed the ordinance ejecting Chinese out of Sacramento, it would have been challenged in the courts. Based on Catlin’s record arguing before the California Supreme Court, federal Circuit Courts, and the U. S. Supreme Court, as he surmised, the ordinance would have gone to and early and deep grave.
In retrospect, Catlin helped Sacramento avoid an even darker stain of Chinese racism and discrimination by counseling against the ejection law. After being elected as a Sacramento Superior Court Judge in 1890 and serving one term on the bench, Amos Catlin died in 1900. Johnson would be elected to Congress in 1894, serving one term. He continued to be active in law, politics, and was the father of Hiram Johnson, 23rd Governor of California.
[1] Sacramento Daily Union, Volume 54, Number 126, 18 January 1886
[2] Sacramento Daily Union, Volume 53, Number 93, 10 June 1885
[3] Sacramento Daily Union, Volume 3, Number 155, 27 August 1877
[4] Sacramento Daily Union, Volume 54, Number 122, 12 January 1886
[5] Sacramento Daily Union, Volume 54, Number 126, 18 January 1886
[6] Sacramento Daily Union, Volume 54, Number 128, 19 January 1886
[7] Sacramento Bee, January 19, 1886