START UNIVERSITY OF CALIFORNIA, BERKELEY MICROFILMED- 1989 UNIVERSITY OF CALIFORNIA LIBRARY PHOTOGRAPHIC SERVICE BERKELEY, CA 94720 MAY BE COVERED BY COPYRIGHT LAW TITLE 17 U.S. CODE REPRODUCTIONS AVAILABLE THROUGH UC BERKELEY GENERAL LIBRARY INTERLIBRARY LOAN OFFICE * aurnon Burke, William G. TITLE Japanese school questi on pLACE San Francisco pate 1907 VOLUME F370 Yer, cau Zo Gus Mm NEG 92277 FORMAT: BK LEVEL: r ISBN: GLADISH: 841944.35H LANG: eng CNTRY: cau L.CCN: MOD: 890629/0CL ME: Burke, William G. TI: Japanese school auestion [by] Wm. G. Burke, city attorney (incumbent) IM: San Francisco, Rincon Pub. Co. [1907] CO: 15 pp, 22 om Call: F870.J3B848 BANC V/C AN PII BROWSE forward to next entry. Key E to edit BIBLIOGRAPHIC data or H to edit HOLDINGS; then PRESS Fl: Enter Mat type to key a new record: For order detail key line #, press Fl: FILMED AND PROCESSED BY LIBRARY PHOTOGRAPHIC SERVICE UNIVERSITY OF CALIFORNIA BERKELEY CA 94720 | tpi JOB NO. 25 ut hi REDUCTION RATIO MICROCOPY RESOLUTION TEST CHART SOURCE 1 3 8 1 NATIONAL BUREAU OF STANDARDS -1963-A DOCUMENT J) 1)0.4 | ” ? LTCC LE EL LET I ry 1 [pet 1 [ T ' ' Tn | | ey J | pos * BANCROFT LIBRARY 101 SIAL wha en 643 Stevenson St. Cc 0. ima CITY ATTORNEY (Incumbent) Rincon Pub. chool Quest En Office of City Attorney, San Francisco, September, 1907 Dear Sir: I take the liberty to forward to you the printed argument prepared by me in the Japanese School segregation case, de- manding absolute segregation of Japanese from our children in the public schools. Still adhering to the views therein ex- pressed, and the principles therein main- tained, I am now, and at all times will be, unalterably opposed to ANY concession whatsoever that will permit children of Mongolian descent toreceive their school- ing in the classroom with our own chil- dren. The question involved concerns the moral, social and educational interests of every family as well as the morals of future generations. The teacher is but the substitute for the parent, and the class- room but an annex to the home. Every citizen has the welfare of his country at heart, and it is his inherent right to insist that the moral atmosphere of his home remain pure and undefiled, and that his children remain uncorrupted by contaminating influences which would be but the natural result of Oriental invasion. I have the honor to remain, Yours most respectfully, WM. G. BURKE. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA KEIKICHI AOKI, by Michitsugu Aoki, his guardian ad litem, Petitioner, vs. M. A. DEANE, Principal: of Redding Primary School, in the City and County of San Francisco, Respondent.—No. 4754. RESPONDENT'S BRIEF. The facts of this case, as shown by the petition and answer, are that the petitioner, a Japanese child of about ten years of age, was born in the Empire of Japan and is a subject thereof and a resident of the City and County of San Francisco for more than six months last past; that Michitsugu Aoki, his guardian ad litem, is his father, and that the said father was born in the Empire of Japan, is not a naturalized subject of the United States, but is still a subject of the Empire of Japan; that he is a resident of the City and County of San Francisco, and has been such resident for more than five years last past. That the said infant petitioner resides at No. 1821 Laguna street, in the City and County of San Francisco, and that the nearest public school tc the residence of said infant is the Redding Primary School, situated on Pine street, in said City and County. That the father and guardian ad litem ot said infant on or about the 17th day of January, 1907, took said affiant te said Redding Primary School and made application to the respondent, who was then the principal of said school, for the admission of petitioner as a pupil and asking that he be admitted as such to said school. That the respondent, as principal of said school, declined to receive said infant or entertain the application aforesaid, or to admit the said infant as such pupil, on the ground and for the reason that petitioner was a child of Mongolian descent, and that in accordance with the resolution of the Board of Education of the City and County of San Francisco, passed on the 11th day of October, 1906, the said child could not be received in that school, but should be sent to a public school provided by the Board of Education for Chinese, Japanese and Korean children, situated on the south side of Clay street between Powell and Mason streets, in the said City and County of San Francisco, known as and called the Oriental School. The resolution referred to reads as follows: “Resolved, That in accordance with Article 1, Section 1662, of the School Law of California, principals are hereby directed to send all Chinese, Japanese or Korean children to the Oriental Public School situated on the south side of Clay street between Powell and Mason streets, on and after Monday, October 15, 1906.” That prior to said resolution, the said Board of Education of the City and County of San Francisco had established a separate public school named and called the “Oriental School”. That there were in attendance at the several public schools in the City and County of San Francisco at the date of the adoption of said resolution 93 Japanese students, of whom 25 were born in the United States and 68 were born in Japan; that 39 of said Japanese students were between the ages of 16 and 21 years and the remainder were under the age of 16 years. That no separate public school had been established for children of any particular descent or nationality other than the said Oriental School, and that the children of all other parentage, with the excep- tion of Mongolian, Chinese, Japanese and Korean, are not compelled to attend separate schools. That said Oriental School is not inferior in any respect in its provision of teachers, or other competency, or its accommodations, para- phernalia and equipment, or of the character of instruction therein given, —D to schools of the same grade attended by bupils Aon Darebtase os ; that the sai rien the City and County of San Francisco; x a i f petitioner, and that the sa about 14 blocks from the residence o 2 in i i ix blocks from his said residence; Primary School is situated about six ; oes pt i i French, Italian and other Europ many children of English, German, ee a sr e are compelled to travel as great a dista ! or would be compelled to travel to attend the said Oriental School. That the United States entered into a treaty with the Empire of Japan, which was concluded on November 22, 1894, and said treaty is How in full force and effect; that said treaty provides in Article 1 as follows: “Article 1. The citizens or subjects of each of the two High Con- i , travel or reside in any i rties shall have full liberty to enter, : es territories of the other Contracting Party, iy shall enjoy ER NITE ory van aa They shall have free access to the courts lly with native : : . 1 be at liberty equally w defense of their rights; they shal tes and Tep- i41 i loy lawyers, advocates citizens or subjects to choose and employ h courts. aad i . their rights before such c¢ » resentatives to pursue and defend DS Latrotor ol jtatice. tney i r matters connected with the adminis / St i oT all the rights and privileges enjoyed by native citizens or tives relates to rights of JosUace ng travel) ta 2° De § kind; to the sion of goods and effects of any ; it f any sort i i the disposal of property o y estate, by will or otherwise, and th full uire, the 0 h they may lawfully acq , th and in any manner whatsoever whic jov in the terri fps ; ting Party shall enjoy in the citizens or subjects of each Contrac gl i ry i leges, liberties, and rights, : tories of the other the same DEVE in these respects than native ject to no higher imposts or charges in thes pe ; nat lee sso or citizens or lens * Ge Boy fa OO a iti j f the ntracting The citizens or subjects of each 0 ¥ pi wind itori 3 tire liberty of conscience, and, subj in the territories of the other entir ! : icht of private i lations, shall enjoy the right of p to the laws, ordinances, and regul: ’ the nizdt of hurying their ic exercise of their worship, and also he rig : [ ik pale TTT, according to their religious customs, in a aie and convenient places as may be established and maintaine ose. : ig gl not be compelled, under any pretext whatsoever, to pay an Haran or taxes other or higher than those that are, or may be, a by native citizens or subjects of the most favored nation. su De The citizens or subjects of either of the Contracting Parties residing in the territories of the other shall be exempt from all compulsory mili- or service whatsoever, whether in the army, navy, national guard, or militia ; from all contributions imposed in lieu of personal service; and from all forced loans or military exactions or contributions. %* * * * * ® A : i ; 'S hat the stipulations con- le 2. It is, however, understood t lai ! hin this and the preceding article (1) do not in any way affect the laws, ordinances and regulations with regard to trade, the immi- ration of laborers, police and public security which are in force or ein may hereafter be enacted in either of the two countries. itior i andate directing the respondent to he petitioner asks for a writ of man T in iat to said Redding Primary School as a pupil in the fourth rade thereof. : ARGUMENT. I The petition should be denied for the reasons: 23 (1) Det the rights and privileges sought by the petitioner ue ot granted directly or indirectly by the said treaty between the United States apan; and ; oi. aad bp If the said treaty be so construed as to grant the rights and privi leges sought it is unconstitutional and nugatory because—(a) it is in excess a} mn of the authority given to the President and Senate as a treaty making power; (b) it is repugnant to the fundamental principles of the Government; and (¢) it trespasses upon the reserve powers of the several States. 5 THE RIGHTS AND PRIVILEGES SOUGHT BY THE PETITIONER ARE NOT DIRECTLY OR INDIRECTLY GRANTED BY THE SAID TREATY BETWEEN THE UNITED STATES AND JAPAN. The right of any subject of Japan to obtain an education in the public schools of the several states of this Union is nowhere given, either by express language or by any reasonable construction of any word or sentence in any article of said treaty. The subject matter of education is not mentioned or dealt with throughout the whole of said treaty stipulations. It is simply a treaty of “commerce and navigation”. It is so" specifically designated, and without exception its several articles deal only with matters incidental to com- merce and navigation. It is claimed, however, that inasmuch® as Article 1 of the treaty provides: “That the citizens or subjects of each of the two Contracting Parties shall have full liberty to enter, travel or reside in any part of the territories of the other Contracting Party, and shall enjoy full and perfect protection for their persons and property * * * and in whatever relates to rights of residence and travel * * * the citizens or subjects of each Contracting Party shall enjoy in the territories of the other the same privileges, liberties and rights, and shall be subject to no higher imposts or charges in these respects than native citizens or subjects, or citizens, or subjects, of the most favored nation,” that the right here sought to attend our public schools is secured by virtue of the right to “reside” in any part of the territory of the United States. The word to “reside” could have no such meaning. From its very context it relates only to the general purposes and objects of the treaty—commerce and naviga- tion. The very broadest interpretation could carry its meaning no further than that the citizens and subjects of each of the contracting parties should enjoy the privileges and rights necessarily incidental to a residence such as . the right of protection to person and preperty, and such other rights as in the nature of our Government is accorded to any person who might have a domicile within our territory. If it is to be further extended, where are the limitations? If the right to reside carries the right to an education, why not to citizenship? If the right of a foreign subject to reside in this country carries with it the right to attend our public schools, and thus to hold intimate association with our own children, why is he not entitled to intermarry? If the right to reside is to be construed so as to give the rights and privileges here claimed by the petitioner, then it can be said that there are no restrictions or limitations whatsoever upon the word, and when used in a treaty conveys greater rights to foreign subjects than are enjoyed by the citizens of the United States, for a citizen of a sister state could not, being a mere resident of indefinite ‘duration, exercise the right of elective franchise within this state, nor could he attend our public schools, but in consequence of an express provision of the Federal Constitution guaranteeing to citizens of the United States the equal protection of its laws. It will be observed that the language of the treaty is that: “In whatever relates to the rights of residence and travel * * = the citizens or subjects of each Contracting Party shall enjoy in the territories of the other the same privileges, liberties and rights and shall be subject to no higher imposts or charges in these respects than native citizens or subjects, or citizens or subjects of the most favored nation.” Thus, by the very terms of the treaty itself, the privileges, immunities, liberties and rights relating to the right of residence are limited to the matter = —) — o stretch of - imagination, and ceriuinty by oy : be claimed that this treaty confers pis hi the public schools of this Beare oe Jas st by the concluding paragraph of Article © of imposts and charges. : reasonable construction, can 1 5 subjects of Japan @ right to ente seems to be guarded aga J i ve let trégey, where it 1s suid thot understood that the stipulations iy el 2 ts ne Article. (1) do not in any way aE anor and the Dleceainy tions with regard to trade, the ang may hereafter gpg security which are in force or W ers, po fo : ies.” be enacted in either of the two countr 11. N —g . NTRY AND op ETWEEN THIS COU ; AT Ca ily By SHOULD BE, 0 OO otonar, AND 3 TLEGES SOUGHT, "THORITY GIVEN RIGHTS AND PRIV { EXCESS OF THE AU ZCAUSE IT IS IN BE KING POWER, IT NUGATORY BECAUSE IT IS II EAS A TREATY MAY : ; T AND SENATE AS / ES OF OUR GOV TO THE PRESIDEN "UNDAMENTAL PRINCIPL 2 THE FUNDAMENTA ‘TE POWERS OF Is Ra i TRESPASSES UPON THE DE Ie Om En GUARANTEED BY ARTICLE X OF T THE S \ AYN. ON. the Senate Sor ty making power to be exercised by the Presid i i ae hpi established by Section 2, Article H, oe shall have power by 18 Fo ps tes i provides that he (the Presiden ke treaties provided United. States, dvice and consent of the Senate to a the power thus had Pi co iy Senators present omens ne ee nevertheless wo- » : » limited by e he 1it0i ‘ nalified or limi ¥ : its are Oe on, A like all other granted pew hen the a it has i become nugatory and of no force and e : vs disused the exceeded ’ Court of the United States has severa ined (1S Jitk. Th Bupa 0 making power and to some Saghes Qa 100 U. S. 483, extent o Fas f Hauenstein VS. nant, , : ras said in the case 0 hl he Swiss Con- EO ny as treaty between the United States and t while . : tis . Sdes akin federation: have no doubt that this treaty is within the Fosty making oe red by the Constitution, and it is ge the able argument Powe Gone forbear to pursue fie our fethen Sh; ‘LL the other, that ke : insisted on one side, an : . The only pofare us it es 19 efficacy must necessarily be compliers debtors, i fe a was one of Cousipacyon. 2h jd Eno idler Such point © $ ser as there are of all oth : iect.” instru y OU 5 p i ield, speaking In the case of DeGeofroy vs. Riggs, 133 U. S. 238, Mr. Justice Field, sp for the court, said: « = ’ . . . . . - y . t, or of its departments, : i action of the Government, or , that of Ran i Mada nature of the Sovornzient isle oy on eo an 0 tended that It e : : d not be con the character the States, It woul itution forbids, or a change In : aifliorize De of one of the States, or ors cession of any of ae i territory of the latter without its conse wd Sint codd; Pe le vs. Gerke, 5th Cal., p. 381, the Supreme Court o tics contains In ey Ihziase which grants the powers Jaks ire is’ unlimited, Br a It does not follow tha J t is to be no words of limitation. I rule that an instrument | i i to the genera : to all its parts. it must be subject il qd ai eaning and effect to e and give m Ro Fads the powers construed so as to reconcl important limitation upon : : , the most impo] ved rights i 3 a, would be ineffectual and the reser g 0 re —_— 6 — of the States would be subverted. This principle of ‘construction, as applied not only in reference to the Constitution of the United States, but particularly in the relation of all of the rest of it to the treaty making grant, was recognized both by Mr. Jefferson and John Adams, the two leaders of opposite schools of construction.” ; Mr. Butler, in his work on the treaty making power, says : “After perusing the foregoing chapters, the reader may think he is justified in presuming that the author does not consider that there are any limitations whatever on the treaty making power of the United States either as to the extent to, or subject matter over, which it may be exercised; such, however, is not the case. The fact that the United States is a constitutional government precludes the idea of any abso- lutely unlimited power existing. The Supreme Court has declared that it must be admitted, as to every power of society over its members, that it is not absolute and unlimited, and this rule applies to the exer- cise of the treaty making power as it does to every other power vested in the central government. The question is not whether the power is limited or unlimited, but at what point do the limitations begin.” - While it is true that it is declared by Article 2 of the Constitution of the United States that treaties are the supreme law of the land, the same is said about the Constitution and all the laws passed in pursuance thereof. This expression, “a treaty is the supreme law of the land”, has produced much confusion and is misleading. A treaty is of no greater force or dignity than an Act of Congress. They are both Supreme as to the States, and the laws thereof, when passed within the scope of constitutional authority. A treaty is but a form of legislation by an independent co-ordinate branch of the govern- ment, and when that agency exceeds its authority, its action is not binding. An Act of Congress dealing with the same subject matter is of equal potency and if of a subsequent date, abrogates the treaty if in conflict with it. It has 80 been held in numerous cases, j In the License Cases, 5 Howard 613, Mr. Justice Daniel said : “This provision of the Constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created necessarily imply. Every power delegated to the Federal Government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were, in intention or in fact, ceded to the General , in order to be binding, must Government. Laws of the United States be within the legitimate powers vested by the Constitution. Treaties, Scope of the same powers, for , save what is derived mediately or immediately, and regularly and legitimately, from the Constitution. 4 treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any cit izen of a State.” And in discussing the general power of making treaties, Mr. Jefferson said: “By the general power to make treaties, the intended to comprehend only those objects whic by treaty and cannot be otherwise regulated. except out of these the rights reserved to the President. and Senate cannot do by treaty what is interdicted from doing in any way.” In the Dispensary Case, 54 Federal Reporter, 969, the Court said: “It is urged in behalf of these complainants that they are Italian subjects, and are protected by the treaty stipulations Yetween Italy and the United States. The language of the treaty on this point is as follows : wart. 2, Constitution must have h are usually regulated It must have meant to States, for surely the the whole Government The citizens of each of the high contracting parties shall pa — ¢ — have liberty to travel in the States and territories of the other; to carry on trade, wholesale and retail; to hire and occupy houses and ware- houses ; to employ agents of their choice, and generally to do anything incident to or necessary for trade upon the same terms as the natives of the country, submitting themselves to the laws there established. «Art. 3. The citizens of each of the high contracting parties shall receive in the States and Territories of the other the most con- stant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.’ «Under these articles the complainants have the same rights as citizens of the United States. It would be absurd to say that they had greater rights. We have seen that the right to sell intoxicating liquors is not a right inherent in a citizen, and is not one of the privileges of American citizenship; that it is not within the protection of the fourteenth amendment; that it is within the police power. The police power is a right reserved by the States, and has not been delegated to the General Government. In its lawful exercise the States are absolutely sovereign. Such exercise cannot be affected by any treaty stipulations.” But neither a treaty nor Act of Congress, nor any other authority of the Federal Government is of any validity whatsoever if they deal with matters not committed to their charge, or are in excess of the powers committed to the General Government. As great as is the Government of the United States, it does not possess all the powers of government. It%s a Government formed by the States in their sovereign capacity and possesses only those powers delegated to it by the several States composing the Union, and all other powers not so delegated were and are reserved to the States. This is not a theory, but a well recognized principle of our Government, and such a declaration forms a part of the Constitution itself. : Article X of the Amendments of the Constitution provides that: “The powers not delegated to the United States by the Constitu- .tion, nor prohibited by it to the States, are reserved to the States re- spectively, or to the people.” Ever since the adoption of this amendment every State of the Union has been, and they still are, exercising the rights so reserved by them, and while doubts have arisen from time to time as to the extent and character of the rights delegated to the General Government, and to the extent and character of the rights reserved by the States, the principle announced has never been questioned by the strongest adherent of the doctrine of centraliza- tion. It forms an essential feature of our republican form of government. The Constitution itself enumerates the powers delegated to it by the States. In addition are certain powers denied to the States; so the powers enumerated and those incidental thereto, together with the powers denied to the States, comprise the whole scope of the powers delegated to the General Government. No attempt has ever been made to designate with precision the extent and character of the reserve powers of the States, and it must follow as a logical sequence as well as by positive constitutional declaration, that all the powers of government not delegated to the General Government remain with the States or with the People. There are certain powers the very nature of which place them in tha I'st of reserve powers, or powers reserved to the States,—matters of domestic concern, the internal affairs of the people of the respective States, matters concerning the safety, happiness, morals and general well-being of the people of the respective communities, marriage, divorce, arent, child, etc. There is also a great body of powers constantly exercised by the several — 8 States of the Union under the general appellation of “police powers”. No one would contend that these powers were ever delegated to the General Govern- ment, or that they were not reserved by the States. It was said in the case of Martin vs. Hunter, 1 Wheaton 304: “The Government, then, of the United States can i : » then, claim no powers yaa be Bol Framed to Je by the Constitution, and the powers mi ma If e such as are expressly given, or given by necessary In License Cases, 5 Howard 524, it is said: “It may then be assumed on authority which does not adi Sonn: that a State has a right to regulate its internal commerce ty Io provide for the health and government of its citizens by suitable lows That such regulations are considered by this Court to be police aws, will not be doubted. See also Prigg vs. Pennsylvania, 16 Peters 539; Lake View vs. Rose Hill Cemetery, 70 111. 101.” Matters of education fall readily and easily among the police Jowers of the State. In Barbier vs. Connel i Vitor ter onnelly, 113 U. 8. 27, the Supreme Court of the “Neither the amendment (14th amendment to th ituti ! e Constit ’ broad and comprehensive as it is, nor any other amendment, inion), a an iprsess with Se powers of the State, sometimes termed its power, to prescribe regulations, to promote t 101 education, and good order of the people.” B he hanes THE POWER, THEREFORE, TO REGULATE AND CONDUCT OUR PUBLIC SCHOOLS IS AMONG THE POLICE POWERS OF THE STATE RESERVED BY THEM. IT IS THE MOST SACRED OF THEM. IT CON- CERNS THE WELL-BEING, MORAL, SOCIAL, AND EDUCATIONAL, OF . EVERY FAMILY IN THE LAND. IT IS NEARER THE HEARTHSTONE OF EVERY HOUSEHOLD. THE TEACHER IS BUT A SUBSTITUTE FOR THE PARENT, AND THE SCHOOL-HOUSE IS BUT AN ANNEX TO HIS RESIDENCE. THE PARENT AND THE STATE HAVE A RIGHT TO BE SOLICITOUS ABOUT THE ENVIRONMENTS OF THE CHILD, AND THEY HAVE A RIGHT TO KNOW THAT NO CONTAMINATING INFLUENCES SURROUND IT AND THAT ITS EDUCATION SHALL BE GIVEN UNDER CONDITIONS AND REGULATIONS WHICH AFFORD THE BEST AD- VANTAGES AND THE BEST PROTECTION. Now, as to the case at issue: ‘The State of California has declared by section 1662 of the Political Code: “Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of ire, residing in the district, and the Board of School Trustees, or said oard of Education, have power to admit adults and children uot residing in the district whenever good reasons exist therefor. Trustees shall have the bower to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases, and also to establish separate schools for Indian children and for children of Mongolian or Chinese descent. When such separate schools are estab- lished, Indian, Chinese or Mongolian children m i j ’ , ‘ re ust ig Big not be admitted into ne This law is in keeping with the declared policy of the State as set forth in its Constitution. Section 1, Article XIX, provides: [114 AM : . i That the Legislature shall prescribe all necessary regulations for : e protection of the State and the counties, cities, and towns thereof rom the burdens and evils arising from the presence of aliens * * * Cl aTwI Songer or detrimental to the well-being or peace of the State, and to impose conditions upon which such per ; i ; erson ¢ 4 in the State. * * »» p § Ty Tenis dt EY vi ¢ Section 4 of ‘the same article of the Constitution provides that: os “The presence of foreigners, ineligible to become gitizeons of ihe United States, is declared to be dangerous to the well-being o State. Book ky, | : : es Under and by. virtue of these laws, the Board of Education o e Ci y and County of San Francisco did, on the 6th day of May, 1906, pass an a resolution as follows: ) : Sl 2 “Resolved, That the Board of Paneotion is QOtUTAImR A Hy : blishment of separate schoo s for in Se 2 oa hey for the purpose of relieving I RE ili i 1s. but also for the higher en Da ng ; iti here their youthful impressions t be placed in any position whe | ; np os A by association with pupils of the Mongolian race. And on the 11th day of October, 1906, the same Board passed and adopted i ollows: . 2 Boies That in accordance with Article 1, Qecizon oon 0 3 School Law of California, principals are i oli au Chinese or Korean children to the Oriental Puble Schoo! sue = the south side of Clay Sy heieen Powell and Maso ’ after Monday, October 15th, 1906. . Prior to the adoption of said pesolnacn the Sogdlied wing > be established. The petitioner, an infan 0 en y oe lal bon October 15th, 1906, attended a public school in the i y a Francisco, where children of other parentage than en nese PR En attended, but on January 17th, 1907, in wg A laws, he was denied admission into any of the pub ic » yaa County of San Francisco of the Grammar or Primary Bod Sem SS ru Oriental Public School, established for Chinese, Tahun > orem ane Being thus denied admission into any other SO a School, the petitioner now seeks to enforce such right o VE i a is* so entitled because of the stipulations contained 3 iveaty : ng between this Government and the Empire of fapsn 5 so » tion = he presented—is the establishment of a public sc oe j Y a California, supported and sustained by taxation o its me boy 5 ann ul of State or Federal concern? Shall our schools be Qited Sus ay the authorities of the State under State laws, or by e au z y Spt ronment under treaty stipulations? Is our public schoo Rys p a sustained by the taxation of our people for Ina Gelli, " or for the benefit of the children subjects of foreign countries ; : 3 i matter only of domestic concern and within the scope of the po gs Io ors of the State, we contend that the right and power to regulate an ri ot our public schools belong wholly to our State, and any attempt on fhe pant of the Federal Government, or on the treaty making power, to i” Riek with such regulation and conduct is not only in excess of the powers ot > we the General Government or the treaty making power, but is subversive well-being and safety of the people of the State of California. “ Ea This case is without precedent. Never before has any a ip? wen made to enforce a right of this character through treaty stipulations on ne of foreign subjects. Efforts have been repeatedly made on the pop, wf citizens of the United States to defeat legislation by the States i i separate schools for persons of the colored race. : Several of the a es ot the Union have enacted statutes, and: they are still now in full forbs 2 effect, establishing separate schools for negro children, and the a i to go establish such schools has been challenged on the ground that such oe lation was in conflict with the fourteenth amendment to the Dons the United States, guaranteeing to its citizens equal privileges, rights an immunities, and the equal protection of the laws. — JO — ‘One of the earliest of these cases is that of Roberts vs. City of Boston, 5th Cush. 198, in which Chief Justice Shaw said: . . “The great principle advanced by the learned and eloquent advocate for the plaintiff (Mr. Charles Sumner) is that by the Constitution and the laws of Massachusetts, all persons, without distinction, age or sex, birth or color, origin or condition, are equal before the law. * * =* but when. this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the as- sertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and to be subject to the same treatment, but only that the rights of all as they are settled and regulated by law are equally entitled to the paternal consideration and protection of the law for their maintenance and security.” It was held in this case that the establishment of separate schools for children of different ages, sexes and colors was legally and properly done. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia. (Sections 281, 283, 310 and 319, Revised Statutes, D. C.) The legislatures of many of the States have passed laws providing for the establishment of separate schools for negro children, and such have been generally sustained by the courts. State vs. McCann, 21 Ohio St. 210. Lehew vs. Brummel, Mo. 15 S. W. 765 Ward vs. Flood, 48 Cal. 36. Burtoneaw vs. Directors of City Schools, 3 Woods 177. Federal Cases, No. 1361. People vs. Gallagher, 93 N. Y. 438. Corey vs. Carter, 40 Ind. 337. Dawson vs. Lee, 83 Ky. 49. In the case of the People vs. Gallagher, 93 New York 438, it was said: “The school authorities have power, when in their opinion the in- terests of education will be promoted thereby, to establish schools for the exclusive use of colored children, and when such schools are estab- lished and provided with equal facilities for education, they may ex- clude colored children from the schools provided for the whites. The establishment of such separate schools for the exclusive use of the different races is not an abridgement of the privileges or immunities preserved by the 14th Amendment of the Federal Constitution, nor is such a separation a denial of the equal protection of the laws given to every citizen by said Amendment. It seems that the privileges and immunities which are protected by said Amendment are those only which belong to the state as a state of the United States. Those which are granted by a state to its citizens which depend solely upon state laws for their origin and support are not within the constitutional inhibition and may lawfully be denied to any class or race by the state at its will and discretion. It seems also that as the privilege of receiving an education at the expense of the state is created and conferred only by state laws, it may be granted or refused to any individual or class at the pleasure of the state.” Subsequently, in the case of People vs. School Board, 161 N. Y. Appellate Decisions 469, Court of Appeals, the case of People vs. Gallagher, supra, was confirmed, the Court saying: “If the Legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the Constitution to deprive it of the right so to provide. It was the facilities for and the advantages of an education that it was required to furnish all the children, and not that it should provide for them any particular class of associates while such education was being obtained. In this case there is no claim that the relator’s children (colored children) were excluded from the common schools of the borough, but the claim is that they were excluded from one or more particular schools which iv IY they desired to attend, and that they possessed the legal right to attend those schools, although they were given equal conditions and advantages in another and separate school. We find nothing in the Constitution which deprived the School Board of the proper management of the schools in its charge or from determining where different classes of pupils should be educated, always providing, however, that the con- ditions and facilities were equal for all. Nor is there anything in this provision of the Constitution which prevented the Legislature irom exercising its discretion as to the best method of educating the dif- ferent classes of children in the state whether it relates to separate classes as determined by nationality, color or ability, so long as it provides for all alike in the character and extent of the education which it furnished and the facilities for its acquirement.” In the case of Wong Him vs. Callahan, 119 Federal Reporter 381, the Political Code of California, section 1662, was considered, and it was there beld that the separate schools established by the trustees for the children of Mongolian descent was not in violation of the Fourteenth Amendment to the Constitution, it appearing that the schools so established offered the same advantages as the other schools. j In the case of Lehew vs. Brummel, decided March 9th, 1899, by the Supreme Court of the State of Missouri, speaking of the provision of the Fourteenth Amendment prohibiting the States from making or enforcing any law which shall abridge the privileges or immunities of a citizen of the United States, and that no State shall deny to any person within its juris- diction the equal protection of the laws, the Court says: “The common school system of this state is a creature of the state constitution and the laws passed pursuant to its command. The right of children to attend the public schools and of parents to send their children to them is not a privilege or immunity belonging to & citizen of the United States as such. It is a right created by the state and a right belonging to citizens of this state as such. It therefore follows that the clause in question is without application to the acts in hand. We then come to the simple question whether our Constitution and the statutes established and maintained at publie expense for the education of colored persons only denied to such persons equal protection of the laws. It is to be observed, in the first place, that these persons are not denied the advantages of the public schools. The right to attend such schools and receive instruction thereat is guaranteed to them. The framers of the Constitution and the people by their votes in adopting it, it is true, were of the opinion that it would be well to establish and maintain separate — schools for colored children. The wisdom of the provision is no longer a matter of speculation. Under it the colored children of the state have made a rapid stride in the way of education, to the great gratification of every right-minded man. * * * But it will be said the qualification now in question is one based on color, and so it is, but the color carries with it race peculiarities which furnish the reason for the exclusion. There are differences in races and between individuals of the same race not created by human laws, some of which can never be eradicated. These differences create different social relations recognized by all well organized governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage. * * * The fact that the two races are separated for the purpose of receiving instruction deprives neither of any rights. It is but a reasonable regulation of the exercise of the right, as said in the case just cited— (People vs. Gallagher, supra) — equality, and not identity of privileges and rights is what is guaranteed to the citizen. Our conclusion is, that the constitution and laws of this state providing for separate schools for colored children are not forbidden by or in conflict with the 14th Amendment of the Federal Constitution.” A The Supreme Court of the United Stat es, in the case of Ples . guson (Supreme Court Reports, Volume i6, page 1138), had Near oi gh Tuestion o = constitutionality of an Act of the General Assembly of the ouisiana, providing for separate railwa i and colored races, and in the discussion Ey Jor Ls white , and determination of th bad Savion to review almost all the cases from the several ra ation See ne ts and powers of the States to enact legislation establishing se a ools for the white and colored races, and whether or not such Ea was in conflict with the Fourteent The Court said: h Amendment of the Federal Constitution, “The object of the Amendment (14th A mendmen - SHY 0 Sue Le Zhsoms equality of the two A os whaouht ut in { 0 ings it could not have been i ish distinctions based upon color, or to i Blonde) 1» 2 lis ns ) . enforce social, a isti i from political, equality, or the commingling of the Sr aruhed los unsatisfactory to either. Laws permitting and even re A SE epatation 1 placa Were they are liable to be brought in iy ily imply e inferiority of either rac ana Lave been generally if not universally PET bg en o Jape oncy of the state legislature in the exercise of their police po . x § mos Sommien instance of this is connected with the OAL ee pL 5 Poa e schools for white and colored children which have b 0 be a valid exercise of the legislative power even by states Whoo the political rights of the col earnestly enforced.” olored race have been longest and most After a review of all the cases u j ; pon the subject, the the Sted Biaes held the Act of the State of Louisiana prams Copter will be remembered that Congress passed an A ' : Lo Ni ct call “Civi ous Bill” entitling all persons to the full and equal a ol ons, advantages and privileges of inns, public conveyances, theate a other places of public amusement, and specifically made the ‘Act a ‘to citizens of every race and color, regardless of any previous condition of servitude. This Act was declared unconstituti i that the Fourteenth Amendment was A ons ii —_ She Sram the legislation authorized to be adopted by Congress for enforeci ony ua direct legislation on matters respecting which the States id Ji Tras ot from making or enforcing certain laws or doing certain acts, b Ee Dicuisied tive legislation. In delivering the opinion of the Court in this " Was: correc. page 3), Mr. Justice Bradley said that the Fourteenth Ar re il “does not invest Congress with power to legislate upon subjects that are within the domain of state legislati ; referred 10.” egislation or state action of the king The Supreme Court further said in the case of Plessy vs. Ferguson supra: “We consider the underlying fallac intiff’ to consist in the assumption that the mas phd al races stamps the colored race with the badge of inferiority I Be 0 $0, it is not by reason of anything found in the Act, Li Be be because the colored race chooses to put that constructi us oi The argument necessarily assumes that if, as has been ih on 8 the case and is not unlikely to be so again, the colored : han, gues become a dominant ‘bower in the state legislature and law Spouly a law in precisely similar terms, it would thereby relegcat gis enact race to an inferior position. We imagine that the Whit Wiggin least would not acquiesce in this assumption. The ei ® Soce at assumes that social prejudice may be overcome by le Bment 2150 that equal rights cannot be secured to the negro except Fe ation ang commingling of the two races. We cannot accept this fanaa If the two races are to meet upon terms of equality it a opoytion, the result of natural affinities and mutual appreciation of IiSp bs fat merits and a voluntary consent of individuals.” each other's — 13 — - . The Court then quotes with approval what was said in the case of er, SU ra. ! . io People vs. big ? bur; gel be accomplished nor plonited by jo ie . : neral sentiment of the communi mal hii ee When the Government iherefate pay Scare CC ench of its citizens equal rights before the law DD the od to enc for improvement and progress, it has necoip ihe) Se ig was organized and performed all the functions or w v ’” social advantages for which it was endowed. ludes : le lo GE ton pi in inl is powerless to eradicate racial instincts or to ab y iffer d the attempt to do 80 . S o on hysical differ ence, an Lo . ion. OO i al the difficulties of the 2? est hued ” Tf the eivil and political rights of Stl veacn No sul, os, Guns be inferior ve other, civilly or polit toy Nin ios dam, ut es the Constitution of the United States cannot p 0 divs ’ ” . them upon the same plane. ‘nine. with. the doctrine so clearly enunciated in these A jth, ihe ; yg hi of the States, and ending with the anprovn) y atter of the ghost oo oan fully justifies our State legislation in the matte court o ¥ : > ‘or Orientals. ‘ : 8 chools for Orien ; ide i re ee that the rights asserted by CI # pri ublic schools without segregation into Seperate ox a re aitand 1 ne by them under the Constitution of the De a , ang HE the United States, and as citizens of the ys otis THE “ go NO SUCH RIGHTS ARE GUARANTEED TO TH oe Or [HE CONSTITUTION AS CITIZENS OF THE Ae ACCORDED THAT GREATE ATES, CAN IT BE SAID AN CAN ene OF A FOREIGN COUNTRY UNDER A A CHE BE ACCORDED TO CITIZENS OF THE UNITED STATE 2 x x JSTITUTION SHELTERING FOLDS OF THEIR OWN FLAG AND THE CONSTI OF THEIR OWN COUNTRY? I Is the treaty making power a government unto itse on Appi > 11 other rights and powers established by the Consti u : an ohrogate 3 to the Constitution itself and all other agencies acting HO 9 A wh ie the Constitution? Has the President, with two-t er > ll such plenary power that by toy ny bi 0% a Dl Const is 00 Yue rights of the girs uaate) iyo ry he es of the people are gone Sorenent as im wholly subservient to the autocratic and arbitrary power any self-willed Executive. i o he So far, I have not touched upon the three other points urged by t peptiens iti i Mongolian ; the petitioner is not a ; ; we ov a he x subjected to inconvenience and opis ip The on pelled to travel a great distance (fourteen blocks) to atten Sey) That the United States Government has furnished by SDDHOLTI pons and land grants a large sum of money to aid in Solraging de SEDonnos. Js riati i ls of this State, and that such approp ie hy ig understanding that the public schools Sz conte 3 under treaties which might be made between the Unite a the questions here involved will be determined from a f — A cms consideration of the more important points urged and heretofore more fully discussed in this brief, and it is not necessary at this time to say more respecting the first point than that the Japanese are of Mongolian descent within the meaning of the laws of our State. They certainly belong to the class designated “Mongolian” by ethnologists and historians in classifying the distinct families or races of the earth. Whether or not the petitioner has been subjected to any hardships or inconveniences by being compelled to travel a distance of fourteen blocks from his residence to attend the Oriental School is not important. Under any system, inequalities in that regard might and do arise. What was said in the case of Lehew vs. Brummel, supra, is pertinent. It was said in that case that: “It is true Brummel’s children (colored children) must go three and one-half miles to reach a colored school, while no white child in the district is required to go further than two miles. The distance which these children must go to reach a colored school is a matter of inconvenience to them, but it is an inconvenience which must arise in any school system. The law does not undertake to establish a school within a given distance of anyone, white or black. The inequality of distances to be traveled by the children of different families is but an incident of any classification and furnishes no substantial ground of complaint.” It appears also from the answer filed in this case, that many white children are subjected to the same character of hardship or inconvenience as complained of by the petitioner. It must be conceded that if such inéon- venience exists as complained of, it cannot be urged against the validity of any law or ordinance passed by the Board of Education charged with the duty of regulating, conducting and managing public schools of this City and County. It is true that the Federal Government has furnished a large amount of money and has made large grants of land for the use and benefit of our public schools. The exact amount of such appropriations cannot now be stated, but by comparison with the amount of money raised by general taxation of the property of the people of this State, the sum would be in- significant. It may be that the Government of the United States, by such appropriations, has contributed a few millions of dollars for this purpose since California became a member of the Union. But from such data as we “have at hand, it would appear that the people of the State of California have, by general taxation, contributed not less than $150,000,000 for the support of their public schools. In the grants of land made by the Federal Govern- ment, and in the appropriations of money for the use and benefit of our public schools, I have been unable to find any stipulations or conditions at- tached to those grants, and these is no authority for the statement that it was the intent of the General Government when making said appropriations that the General Government, either by Act of Congress or by treaty, reserved te itself the right to conduct and manage our public schools because of such appropriations. If such were true, then it would become a case of “Beware of the Greeks when they come bearing gifts.” It is respectfully submitted that the petition should be denied. UF Bourn City Attorney, Attorney for Respondent. we AB END OF TITLE END OF REEL. PLEASE REWIND.