their support, and on that head, in view of what has already been said, but little remains to be added. By the title given to the ordinance, the Board of Trustees have declared that their object, in passing it, was to prevent immorality. To accomplish that object was, as we have seen, not only strictly within their power as a local Legislature for the City of Sacramento, but it was also within their duty. The only other question is one of fact, whether the presence of females, at the places and at the time named in the ordinance, is of a vicious and immoral tendency. That question of fact, as already suggested, it was the duty of the Board of Trustees to examine and determine. I must presume that they performed this duty, or rather, I must accept the passage of the ordinance as their verdict, that the presence of females, in the places and at the time mentioned in the ordinance, is of a vicious tendency, and hurtful to that sound public morality which, by common consent, is indispensable to the general well-being of society. While it is undoubtedly within the power of the Judiciary to annul or overrule the judgments of legislative bodies, if they are repugnant to the Constitution, yet the Judiciary is not allowed to do so except in very plain cases. Upon a mere question of fact, like the present, the judg ment of the law-maker is quite as likely to be accurate and just as that of the law-expounder, and I, at least, do not consider myself privileged to review the finding of a body of men, who are, at least, as well qualified as myself— and, doubtless, much better-to pronounce judgment upon a question of this character. But, were it otherwise, and were I vested with the power to determine the whole question as to the necessity and reasonableness of this ordinance, as a means for the promotion of public morality, I should not hesitate to add my voice to that of the Board of Trustees and affirm their judgment as sound, and their action as not only just and reasonable, but as eminently wise and salutary. In my judgment, the ordinance is not repugnant to the first section of the first article of the Constitution of this State. Second-In support of the second and third points made on behalf of the petitioners, it is argued that the ordinance is a general law, and that, in order to be consistent with 'the eleventh section of the first article of the Constitution of this State, and the first section of the Fourteenth Amendment to the Constitution of the United States, it must operate upon all persons or citizens alike, which, as counsel argue, it does not do, because its operation is confined to one class of citizens or persons, namely, females. The best commentary upon the construction and meaning of the eleventh section of the first article of the Constitution of this State, which declares that "every law of a general nature shall have a uniform operation," with which I have ever met, is found in the context of the instrument from which it was borrowed, namely, the sixth section of the first article of the Constitution of Iowa, which reads as follows: "All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Here the precise language of our Constitution is used, but it is accompanied by other language, as part of the same sentence and expressive of the same idea, which serves to disperse the cloud which, by reason of the "glittering generality" of the language employed, hangs about the meaning of our Constitution. The meaning of the Constitution of Iowa, and, therefore, the meaning of ours, is obvious from the latter clause of the former Constitution. Its meaning, as has been repeatedly declared by the highest judicial tribunal in the State, is not that general laws must act alike upon all subjects of legislation, or upon all citizens and persons, but that they shall operate uniformly, or in the same manner upon all persons who stand in the same category, that is to say, upon all persons who stand in the same relation to the law, in respect to the privileges and immunities conferred by it, or the acts which it prohibits. (Smith v. Judge Twelfth Judicial District, 17 Cal. 554; French v. Teschemacher, 24 Id. 544; Ourland v. Hildreth, 26 Id. 256; Brooks v. Hyde, 37 Cal. 366.) It was not intended by this provision to prevent legislation which is local in its operation or special in its effect. It was not intended to overturn the laws of nature, or disturb the relations of cause and effect, or obliterate distinctions, where, from the very nature and necessity of things, distinctions must exist. It was not intended that all differences founded upon class or sex should be ignored. This must be so from the very nature of things, and from the universal custom and practice of law-makers. A few references to existing laws, whose constitutionality has never been questioned, and without which society would be, in many respects, subject to the mercy of evil-doers, is deemed sufficient to illustrate the fallacy, not to say the absurdity, of the construction for which counsel argue. The common law and the laws of this State in relation to the competency of witnesses, have always, and still do, distinguish between persons, by providing that some shall be allowed to testify and others not. Under the common law and the laws of this State, some persons are allowed to make contracts, while the capacity to do so is denied to others and the same person is allowed to make certain contracts, and denied the capacity to make certain other contracts; and, especially, from the commencement of English jurisprudence down to the present time, have greater disabilities in respect to the acquisition and enjoyment of property, and the power to make contracts and transact business been imposed upon females than upon males. And so, on the other hand, have greater burdens always been cast upon males than upon females, as, for example, military and jury duties. If we enter the field of criminal law, the distinction is still maintained. Certain persons are declared to be incapable of crime, while the contrary is true of the great majority. Criminal laws are found, and they have always existed, which act upon males and not upon females, and others upon females and not males, as laws against rape, the crime against nature, and laws against prostitution and abortion. To give to this provision of our State Constitution, or to the Fourteenth Amendment of the Federal Constitution, in view of such legislation, the construction for which counsel contend, would be to erase three fourths of the statutes of this State, to overturn the foundations of the common law itself and to discard as useless, the main pillars of the social compact. The whole matter may be summed up in the single proposition that all prohibitory laws are supposed to be founded upon reason, and are designed to promote and protect right action, and prevent wrong doing. In ascertaining what is right and providing for its protection, and what is wrong and providing for its prevention, lies the whole duty of the Legislature. Wherever wrong is found, they are allowed and required to provide an adequate remedy, and they may confine the operation of the remedy where the wrong exists, and its application to the persons by whom the wrong or evil is wrought; and in that, as in every other instance, they are to look to the nature of the case, and the adequacy of the remedy. If the wrong is of that character which permits of its being done only by certain classes of persons, or by one sex and not by the other, neither reason nor the Constitution of this State nor of the United States, requires that the remedy should be broader than the evil, or be made to act upon persons other than those whose conduct produces the mischief; or stands in the way of the Legislature's directing the remedy, by special designation, against the class or sex to which, if so be, the wrong or evil is exclusively due. A contrary doctrine would lead us to the absurd consequence of declaring that offenses which, in view of their nature, cannot be common to both sexes, cannot, for that reason, be prohibited by law. My conclusion is, that this ordinance is not repugnant to the eleventh section of the first article of the Constitution of this State, nor to the first section of the Fourteenth Amendment of the Constitution of the United States; and I am authorized to add that I have submitted my conclusions to the judgment of two of my associates-Chief Justice SAWYER and Justice SPRAGUE-and that they have met with their approval. The petitioners are, therefore, remanded to the custody from whence they came. INDEX. ACTIONS. 1. ACTION FOR LOSS ARISING FROM A BREACH OF TRUST.— In case the execu- tion or a valid conveyance cannot be decreed, the beneficiaries of the 2 MEASURE OF DAMAGES.— In such case the value of the property at the time 4 SUITS CONDUCT AND MANAGEMENT OF. When a sult is instituted in 6. ACTION FOR USE AND OCCUPATION UPON AN UNDERTAKING ON APPEAL-In an Bee ADMINISTRATOR, 1, 2; CONTRACTS, 3, 4, 5; PARTNERSHIP, 1; PLEADING, 14. ACTION AGAINST SHERIFF. --- 1. ACTION AGAINST SHERIFF No DEMAND.- No demand is necessary before ACT TO LIMIT THE HOURS OF LABOR. 1. THE ACT TO LIMIT THE HOURS OF LABOR CONSTRUCTION OF.-Con- [713] |