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feres with vested rights of riparian owners, or affects prescriptive or granted rights to draw lower the waters of the pond. See Attorney-General v. Revere Copper Co., 152 Mass. 444; R. S., c. 119, § 12; St. 1867, c. 275. In this instance the proposed act undoubtedly contains a clause which provides compensation for damage occasioned by anything which may be done under its provisions, which would apply if private rights in land or water rights were affected by the establishment of the so-called "low
I desire to point out, however, that if, as I am advised, the Hamilton Woolen Company claims to have prescriptive or other rights to draw the water of Lake Attitash below the low-water mark now to be designated, the Commonwealth would undoubtedly be required to engage in extensive litigation for the determination of such claim, which, if established, might require the towns of Amesbury and Merrimac to reimburse to the Commona very considerable sum as damages for the interference therewith. In view of the fact that the existing rights of the Hamilton Woolen Company, or of any other persons who may claim the right to use the waters of Lake Attitash, might be determined by an information brought by the Attorney-General, and any unwarranted use thereof be terminated (AttorneyGeneral v. Jamaica Pond Aqueduct, supra; Attorney-General v. Revere Copper Co., supra), it should be carefully considered c. 539, or the act now proposed, which provide compensation for whether or not it is expedient to pass statutes like St. 1909, damages, without ascertaining to what extent the Commonwealth or the several towns interested therein may be called upon to reimburse persons or corporations for damages to property sustained by anything done under the authority of their
To the House
1910 April 11.
CONSTITUTIONAL LAW CONSTITUTION OF THE UNITED
A bill providing that "it shall be unlawful for any woman under twenty-one years of age to enter a Chinese restaurant or hotel or to be served with food or drink therein," and that "it shall be unlawful for the proprietor of any such hotel or restaurant to admit any woman under twenty-one years of age thereto or to serve her with food or drink therein," and further providing that "violations of this act shall be punished by fine or imprisonment, at the discretion of the court," is in effect a discrimination against the Chinese by reason of their nationality, and therefore, if enacted, would be in violation of the Fourteenth Amendment to the Constitution of the United States, and therefore unconstitutional and void. 1
I have to acknowledge the receipt of a communication in which you state that the committee on bills in the third reading desires my opinion upon the constitutionality of House Bill 1372, entitled, "An Act relative to the admission of women under twenty-one to certain restaurants." This act provides, in section 1, that:
It shall be unlawful for any woman under twenty-one years of age to enter a Chinese restaurant or hotel, or to be served with food or drink therein; and it shall be unlawful for the proprietor of any such hotel or restaurant to admit any woman under twenty-one years of age thereto, or to serve her with food or drink therein.
Section 2 is as follows:
Violation of this act shall be punished by fine or imprisonment, at the discretion of the court.
The proposed act does not define what constitutes "a Chinese restaurant or hotel," but I assume that by the words quoted it was intended to designate a restaurant or hotel maintained by Chinese, in which food is prepared and served in the Chinese manner, and that it does not extend to or include restaurants or hotels kept by others than Chinese.
1 See Opinion of the Justices, 207 Mass. 601.
If the proposed act is to be sustained, it must be as an exercise of the police power, which includes all matters "which affect the lives, limbs, health, comfort and welfare of all in their persons and their property" (Commonwealth v. Bearse, 132 Mass. 542); and of these matters the Legislature must, in the first instance, be the judge. As was said by Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 52, at page 102:
Having once come to the conclusion that a case exists, in which it is competent for the Legislature to make a law on the subject, it is for them, under a high sense of duty to the public and to individuals, with a sacred regard to the rights of property and all other private rights, to make such reasonable regulations as they may judge necessary to protect public and private rights, and to impose no larger restraints upon the use and enjoyment of private property than are in their judgment strictly necessary to preserve and protect the rights of others.
The exercise of this power is, however, subject to certain limitations. The purpose for which it is invoked must fall within those above enumerated, and the means and manner of its application must be reasonable, and must affect equally all persons and property under the same circumstances and conditions. The Legislature may not, under the guise of the police power, enact statutes which operate for or against any particular persons within the same general class and under the same circumstances. Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703. Legislation which discriminates against any person in respect of his freedom of action or enjoyment of property is in violation of that part of the Fourteenth Amendment of the Constitution of the United States which provides:
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 protection afforded by this provision extends to all persons within the Commonwealth, and may be enforced by ap
propriate legislation of Congress. As was stated in Yick Wo v. Hopkins, 118 U. S. 356, at page 369:
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by § 1977 of the Revised Statutes, that "all persons 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 persons 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."
If the proposed act results in an unfair or unreasonable limitation upon the rights and privileges of Chinese within the Commonwealth to hold property and to do business therein, or unjustly discriminates against them as a class, it is in contravention of the amendment above quoted, and is, therefore, void.
To justify the bill now before me, it would be necessary to show that restaurants or hotels kept by Chinese may, as a class, be distinguished from all other restaurants or hotels, with respect to the danger to women under the age specified who may resort to them for food or entertainment. It is not enough that in individual cases restaurants or hotels kept by Chinese, by reason of the manner in which they were maintained, have been found to be dangerous to the morals of such women, and therefore, to the public; for without doubt as much may be said of some hotels or restaurants kept by others than Chinese. The statutes already require innholders and common victualers to secure a license before transacting business, and in individual cases this license may be withheld if the public good does not require its issuance. R. L., c. 102, §§ 1, 2. In order to justify a restriction applicable alone to restaurants or hotels kept by Chinese, it must appear that such restaurants or hotels, as a class, by reason of being maintained by Chinese, are more dangerous to the morals of the public than all other restaurants or hotels. If such is not the fact, the proposed act in operation
and effect discriminates against the Chinese as such, and is unconstitutional. There are no facts before me from which such a distinction may properly be drawn; and I am constrained to the opinion that the proposed bill, in effect, discriminates against the Chinese by reason of their nationality, and therefore, if passed, would be unconstitutional and void.
FIREMEN'S RELIEF FUND - INJURIES SUFFERED IN THE PER-
R. L., c. 32, § 73, as amended by St. 1903, c. 253, creating a firemen's relief fund, to be used "for the relief of firemen who may be injured in the performance of their duty at a fire or in going to or returning from the same," does not authorize the use of such fund for the relief of firemen who may be injured while taking part in drill, or while exercising the horses of the department by order of the superior officers.
You have asked my opinion as to whether section 73 of chapter 32 of the Revised Laws, as amended by chapter 253 of the Acts of 1903, may properly be interpreted to authorize payments from the firemen's relief fund for the relief of firemen who are injured, not in the performance of their duty at a fire or in going to or returning from the same, but in the performance of their duty at a fire drill, which has been instituted for the purpose of increasing the efficiency of the fire department, or in exercising the horses of the department, or in doing similar things by order of the superior officers of the department.
The statute provides as follows:
Such fund shall be used for the relief of firemen, whether members of said association or not, who may be injured in the performance of their duty at a fire or in going to or returning from the same, and for the relief of the widows and children of firemen killed in the performance of such duty, in the manner and to the amount determined by a board of five persons,
In my opinion, the statute may not be so interpreted. Its language is clear, and the scope of its provisions is definitely limited by that language.