Gambar halaman

and definite terms in article 1, section 8, seventeen terferes with it, or impairs the freedom and indespecifio grants of power to Congress, relating to as pendence of its exercise, must be contrary to the many different subjects, and then in the same section intent of the Constitution itself. A grant of power to provides that Congress shall have power" to make all make treaties, given in general terms, is not to dislaws which shall be necessary and proper for carrying place or control the taxing power of Congress, given in into execution the foregoing powers, and all other specific and definite terms. If the President makes & powers vested by this Constitation in the government treaty relating to this subject, then it is and must be of the United States, or in any department or officer the constitutional province of Congress, upon its own thereof." These specific grants of power to Congress responsibility, and in the exercise of its own judgare as much a part of the Constitution as is the grant ment, to decide whether the treaty shall in this reof the treaty power to the President and the Senate. spect go into effect or not; and until it has affirma

It is conceded on all hands that the legislative power tively decided this question, the treaty is simply a of appropriating money, belonging to the United contract made by the President and the Senate, and States, is exclusively vested in Congress. Article 1, dependent for its execution upon the will of Conin section 9, declares that “no money shall be drawn gress. from the treasury but in consequence of appropriations The same method of reasoning may be applied with made by law." This places all the funds of the gov

reference to the other express and specific powers of ernment under the supreme and exclusive custody and Congress — as the power to borrow money, to regulate control of Congress. Not a dollar can be drawn from commerce, to coin money, to fix the standard of the treasury for any purpose, except by its legal appro- weights and measures, to declare war, to raise and priation. If then the President, with the approval of support armies, and to provide and maintain a navy. the Senate, makes a treaty which stipulates for the These are definite powers. It is the will of the Conpayment of money by the United States, he enters stitution, given in express language, that Congress into a contract which he cannot execute, and which should exercise these powers upon the subjects to cannot be executed at all without the legislative con- which they relate. The fact that the President has sent of Congress, including that of the House of Rep- negotiated a treaty with a foreign government in relaresentatives, The presumption is that the Senate, tion to any or all of these subjects does not change having approved the treaty, will give its consent. these substantive and express powers as vested in What shall the House of Representatives, as a neces- Congress. They are as real after as before the treaty. sary and independent participant in appropriating It is for the two houses of Congress to decide in what money, do in the promises ? What has it a right to do manner they shall be exercised. If the President has in the exercise of the power bestowed upon it, jointly stipulated for a given manner of exercising any one or with the Senate, by the Constitution? If we adopt more of these powers, then he has made a pledge the theory that it is absolutely bound by the action of which only Congress can fulfill; and whether it shall the treaty power, and that it may not and must not do so is a question for its discretion in the exercise of its deliberate upon the propriety or impropriety of mak- own powers. The President, upon any other supposiing the appropriation, then its function ceases to be tion, might through treaty making absorb nearly the legislative, and becomes simply ministerial.

whole power of Congress, and thus reduce to a rullity The existence of the treaty may be a very weighty specific and express grants of legislative power. reason why the House of Representatives should give The power to declare war and to raise and supits assent to the needed appropriation of money. But port armies is given to Congress, with the qualificaif it has no right to dissent, to deliberate and judge, tion that no appropriation of money for the sup and in the end act upon its own judgment, then the port of armies shall be for a longer term than action of the treaty power displaces it from the posi- two years. Now, can the President, by a treaty of tion assigned to it by the Constitution. Its character alliance and succor with one of two belligerent naas a distinct and independent participant in legislation tions, virtually declare war upon the other, and in would in this case be destroyed. It would have no will fulfillment of the treaty raise and support armies? of its own on the subject, and would have no right to Cau he through a treaty exercise the war power or make have such a will, and would be bound hand and foot it the duty of Congress to exercise this power without by the treaty power. It is not to be supposed that the deliberation or judgment as to the expediency of the Constitution, in the general grant of this power, in- measure? It is enough to ask this question, tended such a result; and if not, then no treaty that So also Congress is authorized to mako all laws which pledges the United States to pay money can be regarded

necessary and proper" to carry into execuas one of “perfect" obligation in this particular, until tion its own express powers, or any other powers deleit has the assent of Congress to this feature.

gated by the Constitution to the government of the The taxing power is given to Congress in the pro- United States, or to any department or officer thereof. vision that it shall have power “to lay and collect This enables Congress to legislate for the execution of Laxes, duties, excises and imposts,” with the qualifica- treaties, and implies its right to judge in every case tion that “all bills for raising revenue shall originate whether and to what extent the power shall be exerin the House of Representatives.' Such bills have cised. This is what legislation means. A legislative uniformly been construed to mean bills for the imposi- power that has no discretion and can exercise no judgtion of taxes. If the President makes a treaty involv- ment in regard to the subject on which it acts, but ing the subject of taxation and the raising of revenue must obey the edict of another power, without any thereby, then the contract, as to its subject-matter, positive and separate will of its own except as the mere relates to that which by the express language of the instrument of that power, is not in reality a legislative Constitution has been specifically assigned to Congress, power at all. And yet this would be the position of and in the first step of the process, to the House of Congress with reference to treaties, provided its legisRepresentatives. That it was not the purpose of the lative will were absolutely subject to that of the treaty Constitution to delegate the taxing function to the power. treaty power, and thus enable it to change the revenue That Congress has power to annul and abolish a laws of the United States, independently of the will of treaty, and thus destroy its character as a law, and, if Congress, is evident from the fact that this function so, that it has the right to judge of the time when, the is in express and specific terms assigned to Congress, and circumstances in which, and the reasons for which this is not in such terms assigned to the treaty power. Any power shall be exercised, admits of no doubt. Such a construction of the treaty power which supersedes this power inheres in every independent nation; and, under specifio grant of legislative power to Congress, or in- the Constitution of the United States it belongs to Con

may be "

gress, and not to the President and the Senate, except “has the right to give or withhold its sanction to those when making another treaty. Congress, exercising parts of a treaty that require legislative enactment to this power in 1798, abolished all existing treaties give it force, as, for example, when it provides for an between the United States and France. 1 U. S. Stat. alteration in the criminal or municipal law, or proposes at Large, 578. If then Congress has the power to to change existing tariffs or commercial regulations." abolish treaties and render them inoperative as laws, He adds that “if a treaty requires legislative action in and may exercise this power at any time, being itself the order to carry it out it should be subjected to the fulljudge of the time and the reasons, how does it appear est discussion in Parliament, and especially in the that a treaty just concluded and relating to subjects House of Commons." The day has passed in Great within its constitutional domain, or which cannot be Britain when the Crown can say to Parliament: "Ask executed without legislative action, supersedes all dis- no questions, but pass the law, and take the royal will cretion on its part in the enactment of laws with for the reason.” If Parliament can assent to a treaty reference to such treaty? Why has not Congress as it can dissent from it; and the latter is as poteutial as much discretion in givig or withholding its legislative the former. Thus the commercial articles of the assent as it has in deliberating and judging whether it treaty of Utrecht 'with France never went into operwill or will not abolish a treaty altogether? If it can ation, because Parliament refused to supply the necrepeal a treaty then it certainly can refuse its assent to essary legislation. This refusal was equivalent to their one when that assent is necessary to its execution. nullification.

The conclusions derivable from the preceding argu- Treaties of the United States are made “under the ment are the following:

authority of the United States.” This authority is 1. That the treaty power, though granted in general given to the President, in comection with the Senate. terms, and in these terms with no express restrictions And yet, if in the exercise of this authority he shall upon its scope, is, nevertheless, limited and qualified see fit to make treaties on subjects which the Constiby the Constitution.

tution has in express terms committed to Congress, or 2. That this power cannot supersede, invade, displace which cannot be executed without its legislative acor absorb the functions expressly assigned by the tion, then Congress is the department of the governConstitution to Congress, or make an absolute law for ment that acts “under the authority of the United its action in their performance.

States" in supplying the requisite legislation, and in 3. That where treaties are self-operating in the sense such cases it has the right to exercise this authority of needing no legislation for their execution, and are just as freely as does the President when he makes a constitutional in their character, they are a part of treaty. Both – the one in making treaties and the "the supreme law of the land,” without any action of other in passing laws — act under one and the same Congress.

Constitution in the exercise of different powers 4. That where a treaty acts upon subjects that have derived from the samo source. beeen expressly and specifically committed to Con- It necessarily follows, either that the President must gress, or where it needs legislation in order to carry it wholly forbear to make treaties on subjects placed into effect, the treaty, considered as creating an inter- within the constitutional domain of Congress, or that national obligation, or as becoming a law of the land, all treaties in reference to such subjects, and in referis inchoate and incomplete, until Congress shall have ence to the legislation necessary to give them effect, supplied the requisite legislation in regard to it, and must have the assent and cooperation of Congress bethat in respect to this legislation it is the right and fore they become completed transactions or laws of duty of Congress to judge with as much freedom and the land. In no other way can tho two classes of powindependence as it applies to any subject upon which ers, both granted by tho Constitution, and hence restit legislates.

ing on equal authority, be made to harmonize with 5. That the President, in making treaties which re- each other. The President has no more right to prelate to matters within the legislative province of Con- scribe an authoritative rule for the legislative action gress or which require the legislation of Con- of Congress than has Congress to prescribe such a rule gress, for their execution, is bound by a due regard to for him in making a treaty. In each a portion of the the Constitution, to provide expressly iu the treaties sovereignty of the people is constitutionally vested, themselves that they shall not take effect until the and no action of either can change this fact in respect necessary legislation has been supplied, and that when to the other. he omits to make such a provision the Constitution implies its presence in the powers of Congress, and INVESTMENT OF FUNDS BROUGHT INTO thus qualifies the treaty.

COURT. 6. That the refusal of Congress in the exercise of its constitutional powers to furnish the legislation NEW YORK COURT OF APPEALS, JUNE 15, 1880. necessary to execute the stipulations of a treaty in regard to matters coming within the scope of these

CHESTERMAN V. EYLAND. powers, does not involve a violation of international

In an action of partition in New York city, funds belongfaith, since such stipulations are not binding until they ing to infant parties were paid to tho city chamberlain have received the legislative assent, without which the and no order directing the investment thereof made. treaty itself is not to be considered a completed con- The funds wero deposited in the Fulton Bank to the traet " under the authority of the United States."

Chamberlain's credit, and several months thereafter The legal omnipotence of treaties in the form in

were invested, with other sums held by him, in a mortwhich Blackstone held the doctrine is not compatible

gage for $10,000, upon real estate, which at the time was

ample security for such sum. At the time there were with the distribution of powers made by the Constitu

taxes in arrears on the mortgaged property, which were tion of the United States, and does not accord with subsequently paid by the mortgagor. Two years afterthe modern practice of Great Britain in making treat- ward a municipal assessment of $8,000 was made on the ies. While the treaty power is vested in the British property, which had falleu away greatly in value, and Crown, it is nevertheless the general practice of the the mortgagor abandoned paying the interest. ThereCrown to provide in cases, where Parliament must act

after the mortgage was foreclosed by the chamberlain in order to the execution of treaties, that they shall

and he bid in the property for the benefit of those for

whom he took the mortgage, including the infants. become completed contracts only upon the condition

Held, that the investment made by the chamberlain was of such action.

not in violation of his duty, and he or his successor was Mr. Todd, in his Treatise upon Parliamentary Gov- not liable to the infants for any loss which resulted ernment in England, vol. 1, p. 610, says that Parliament therefrom.



CTION of partition. Motion for an order requiring thorized by law and in violation of their duty. To

the chamberlain of the city of New York to pay establish this it is strenuously argued that in the abover moneys deposited with him. The opinion suffi- sence of an explicit order of the court to invest the ciently states the facts.

fund in boud and mortgage they had no right to do so, Edward F. Brown, for appellant.

and should have depositod the money in the authorized

trust companies. In case of partition it is provided C. H. Woodruff, for respondent.

(2 R. S. 327, 6$ 64, 68, 70) that where any of the known FINCH, J. In this action, which was brought for the parties are infants the court may, in its discretion, partition of real estate, a salo was had pursuant to the

direot the share of such infants to be paid over to the judgment rendered, and the share of the proceeds general guardian or be invested in permanent securibelonging to Mary C. Thompson and others, amount- ties, at interest, in the name and for the benefit of such ing in tho aggregate to $13,475.23, was brought into infant; that when the security is directed to be taken court by reason of their infancy and paid over to otherwise than in the name of a kuown owner, it shall George W. Lane, as chamberlain of the city of New be taken in the name of the clerk, and his successors York, in trust for the infants. No order of the court in office; and that the investments when made shall directing its investment appears to have been made in be in the public stocks of the State or the United the action. The money was paid to the chamberlain States, or in bond and mortgage upon unincumbered on December 15, 1873, and was immediately deposited real estate of at least double the amount of the loan in by him to the credit of his account in the Fulton Bank. value. Such investment being once made the security It apparently remained thero on deposit until the 19th is not to be discharged, transferred or impaired withof March, 1874, when it was invested in a manner evi- out the order of the urt, entered in its minutes. dently common in the chamberlaiu's office, but which These provisions evidently contemplate a case where is criticised by the parties interested in the fund. The the court, by an order in the action, directs an investchamberlain held a mortgage made by one Edward ment. They perhaps assume that such direction will Jones in 1867, which covered certain vacant lots in the be given but do not purport to furnish a rule to control city of New York, and having been originally given

the action of the officer in the absence of a special for $15,000 had been reduced to $10,000 and a portion of direction by the court. This difficulty was met and the lots released. On the 19th of March, 1874, the remedied by rule 180 of the Court of Chancery, that chamberlain was ordered to pay over certain moneys,

where no direction for the investment of funds paid in the suit of Robins against Robins, to the persons

into court is contained in the decree, and the money is entitled, and desiring to keep this Jones mortgage and not applied for within six months thereafter, it shall certain others in which the moneys had been invested, be the duty of the register, assistant register or clerk, be used the moneys deposited in this case to make the with whom the same is deposited, and without any payments required, crediting the suit now before us special order for that purpose, to cause it to be invested with an equivalent interest in the Jones mortgage, and in public stocks or other permanent securities, and a practically transferring to himself, in trust for the in- similar duty was imposed as to accumulation of infants in this case, an interest in such mortgage to the come. Thus both cases were provided for. Where amount of $4,101.25. The balance of the fund was special direction in the suit itself was given, that order thereupon deposited in the trust company, where it

furnished the guide. Where such direction was remained until the following May, when it was invested omitted, the chancery rules required the officer to inin a similar manner and by the same process in certain vest according to its terms. That rule has survived other mortgages held by the chamberlain. At the time the changes of recent legislation and is still operative. of this investment in the Jones mortgage, taxes upon When the Court of Chaucery was abolished and its the mortgaged property to the amount of something jurisdiction and duties imposed upon the Supreme orer $700 were in arrears, but the fact was unknown to Court, the Judiciary Act of 1847, which directed the the chamberlain, and when afterward discovered, the change (Laws of 1847, ch. 280, § 71) and rested the amount necessary to pay them was called for and they securities brought into the Court of Chancery in were paid in full. There is no reason to doubt the the clerk of the Court of Appeals, was careful to presufficiency of the Jones mortgage as a security for the serve the rules of the older tribunal respecting the desum unpaid upon it at the time of this transaction. posit and investment of such funds, subject only to The interest was promptly paid, the obligor in the the rules and regulations that might thereafter be prebond was responsible, and in February, 1875, this mort- scribed by the Supreme Court. The act of 1848 (ch. gage, with others, was delivered over by Mr. Lane, at 277) worked no other change than to substitute the the close of his term of office, to J. Nelson Tappan, the county treasurers, and in the city of New York, the present city chamberlain. While it remained in his chamberlain, in the place of the clerk of the Court of hands a severe depreciation in value of real estate Appeals, as custodians of this class of trust funds. ensued, and in 1876 an assessment of more than $8,000 It is claimed, however, that the rules of the Supreme was imposed upon the property, with the usual ruinous Court have abrogated rule 180, and prescribed for the effect to the parties interested. The mortgagor aban- county treasurers a different duty (Rule 83 of 1849; doned the payment of interest, and the present cham- Rule 79 of 1852; Rule 81 of 1858; Rule 82 of 1871; Rule berlain, acting on his own impression of duty, fore- 82 of 1874). Through all the changes of the rule referclosed the mortgages, bid the property in for $8,000, red to it steadily did but one thing. It prescribed the and now holds it at the risk and for the benefit of those place of deposit of moneys that were to be deposited, whose funds went into the investment. The taxes and it did no more than that. It did not forbid investremain unpaid, and the result is substantially a total ments in stocks and bonds and mortgages, either loss of a fund which the court took from the infants directly or by implication. Its entire operation is for the purpose of its safety and preservation.

plainly limited to uninvested funds while they remain Mary C. Timpson, becoming of age, called for her uninvested. We conclude, therefore, that rule 180 is money, and being unable to obtain it, moved at Special yet in force, and furnishes the standard by which to Term for an order requiring the late and the present test the action of the chamberlain, modified only by chamberlain to pay it over to her. That motion was the rule of the Supreme Court as to the place of denied; the denial affirmed at the General Term and deposit. an appeal taken to this court.

The chamberlain deposited the moneys resulting The right to compel Lane or Tappan to pay this from the sale in this action in the Fultou Bank, and money is founded upon allegations that their treat- kept them there for a brief period. This deposit was a ment of the fund committed to their care was unau- violation of rule 82. But no injury resulted. The

violation was harmless. The fund was in no manner the infants is great. Their property has been taken lost or diminished by that act. Soon after, a portion from them by the law in order to protect it from harm, of the fund was invested in the Jones mortgage, and and the protection has ended in a total loss. There is the balance deposited with the trust company, where much of shame and disgrace in a system which leaves it remained till the after investments were made. such a result possible, but the remedy is not with us.

The manner in which they were made by massing in We cannot redress one wrong by committing another. one mortgage the moneys of differeut beneficiaries is The conclusion we have reached on the merits rencomplained of by the appellant. The sole objections ders it unnecessary to consider whether the motion pointed out seem to be that by this process there was a made in this case or an action against the late chamtransfer of securities in violation of the statutory rule berlain was the proper remedy. in partition, and an investment in a mortgage subject The order should be affirmed. to prior incumbrances, which is equally forbidden. There was no transfer of the mortgage. It remained

STATE LAWS REGULATING REMOVAL OF all the time vested in the chamberlain. He did not transfer it at all; he only changed one of the beneficia

DEAD BODIES VALID-CHINESE ries for whom it was beld. Nor, in making this

RELIGIOUS CUSTOMS. change, did he subject the moneys invested to any prior lien or incumbrance, because the interests of the UNITED STATES CIRCUIT COURT, DISTRICT OF CALotber beneficiaries were vested in them earlier. What

IFORNIA, MAY 24, 1880. ever the date of their interest, all stood on an equality, no one having any preference over the other, the mort

IN RE WONG YUNG QUY. gage being held for all. We cannot see any legal ob- A statute of California provides that a permit from local jection to the practice adopted in the chamberlain's authorities shall be required for the disinterment and office of aggregating in one mortgage the funds of removal of a dead body, for which permit $10 fee shall several beneficiaries. The court which has supervision be paid. The statute does not apply to removals from of these funds has been cognizant of the custom and ono cemetery to another in the same county. In a prohas never forbidden it. It aids to a prompt invest

ceeding against a Chinese subject who disinterred and ment of funds and has much of convenience to recom

removed the body of another Chinese subject for the

purpose of transportation to China, without procuring a mend it. No rule of law forbids it, and we are not prepared to say it should be discontinued.

permit, held, that the statute is not in contravention of

the provision of the Federal Constitution that “ConIt was further objected that when these funds were gress shall have power to regulate commerce with forinvested in the Jones mortgage there were taxes in eign nations” (art. 1, 82, subd. 3), or of the one that no arrears constituting an incumbrance upon the mort. Stato shall, without the consent of Congress, lay any gaged property. That was true; but as soon as their

duty upon exports (art. 1, 82, subd. 2), or of that which existence was ascertained, the amount necessary for

prohibits any State from denying to "any person within their payment was called for and they were discharged

its jurisdiction the equal protection of the laws” (14th

Amendment). Held, also, that it is not in violation of in full. We discover, therefore, nothing in the con

the provision of the treaty between the United States duct of Mr. Lane to justify the order which was sought and China that “Chinese subjects in the United States against him. He invested these funds, and had a right shall enjoy entire liberty of conscience, and shall be to do so. The securities chosen at the time were ample, exempt from all disability or persecution on account of and to all reasonable judgment, prudent and safe their religious faith or worship," even though the religinvestments. The fund, thus intact and represented

ious sentiments of the Chinese may require that they by good securities, was at the close of his term of office

shall remove the bodies of their deceased friends to handed over to his successors.

That ended the respon

China for burial. sibility of Lane, and we see no reason to continue or

ABEAS CORPUS to inquire into the legality of prolong it. His successor, Mr. Tappan, continued to proceedings in a court of the State of California, receive the interest upon these investments until the resulting in the imprisonment of the petitioner. The two misfortunes happened from which has come all opinion states the facts. the mischief. Real estate largely depreciated in value, George E. Bates and J. M. Rothchild, for petitioner. and the property covered by the Jones mortgage, while falling in price, was fatally weighted by the added load

Crittenden Thornton, for respondent. of a city assessment amounting to some $8,000. The SAWYER, C. J. On April 1, 1878, the Legislature of mortgagor became discouraged and defaulted in his California passed an act entitled “An act to protect interest. The chamberlain thereu pon foreclosed the public health from infection, caused by exhumation mortgage, bid in the property, and holds what the and removal of the remains of deceased persons," secdepreciation in value and the rapacity of municipal tions 1, 2, 3, 4, and 6 of which are as follows: assessments has left of the investment for the benefit "Sec. 1. It shall be unlawful to disinter or exhume of the infants. It is objected that he ought not to from a grave, vault, or other burial place, the body or have foreclosed this mortgage without the order of the remains of any deceased person, unless the person or court, and that in doing so he discharged the mortgage persons so doing shall first obtain from the board of in violation of the statute. We do not deem this fore- health, health officer, mayor, or other head of the closure a discharge within the prohibition of the stat- municipal government of the city, towu, or city and ute. Practically the security remains the same and county where the same are deposited, a permit for said still vested in the chamberlain, and changed only in purpase. Nor shall such bodies or remains disinterred, form, and while it would have been wiser to have asked exhumed, or taken from any grave, vault, or other direction of the court, we cannot say that the fore- place of burial or deposit, be removed or transported closure was improper or illegal. The right to hold the in or through the streets or highways of any city, town, mortgage involved both the right and duty of collect- or city and county, unless tho person or persons reing all sums due upou it, and that in turn the right and moving or transporting such body or remains shall duty of using the ordinary modes of collection. In- first obtain from the board of health or health officer deed, if he had not foreclosed, but allowed the debts (if such board or officer there be), and from the mayor to accumulate without an effort to collect, it is not or other head of the municipal government of the city impossible that a just complaint might have drawn or town, or city and county, a permit in writing so to with it the consequences of negligence.

remove or transport such body or remains in and We conclude, therefore, that no remedy for the loss through such streets and highways." exists against either Lane or Tappan. The wrong to “Sec. 2. Permits to disinter or exhume the bodies or


remains of deceased persons, as in the last section, may out a permit, and was arrested in the act, tried and be granted, provided the person applying therefor shall convicted for the offense created by said statute in the produce a certificate from the coroner, the physician court having jurisdiction, and sentenced to pay a fine who attended such deceased person, or other physician of fifty dollars, or in default of such payment, to imin good standing cognizant of the facts, which certifi- prisonment in the city and county jail for a period of cate sball state the cause of death or disease of which twenty-five days. Failing to pay the fine, and being the person died, and also the age and sex of such de- imprisoned in pursuance of the judgment, he obtained ceased; and provided further, that the body or remains a writ of habeas corpus, and he now asks to be disof deceased shall be inciosed in a metallic case or cof- charged on the ground that the provision of said act, fin, sealed in such manner as to prevent, as far as prac- requiring the payment of said fee for a permit, violates ticable, any noxious or offensive odor or effluvia escap- the treaty with China, known as the Burlingame ing therefrom, and that such case or coffin contains Treaty, and the Constitution of the United States, and the body or remains of but one person, except where is therefore void. All the other provisious of the act infant children of the same parent or parents, or having been complied with, the only question is as to parent and children are contained in such case or the power of the Legislature to require the petitioner coffin. And the permit shall contain the above con- to take out a permit at a cost of ten dollars as a conditions and the words, Permit to remove and trans- dition of disinterment and removal of the remains of port the body of

age - sex - -;' and his relative from their place of burial. the name, age and sex shall be written therein. The The first point made is that the act, in the requireofficer, municipal government of the city or town, or ment in question, violates subdivision 3, section 8, art. city and county, granting such permit, shall require to I, of the National Constitution, which provides that be paid for each permit the sum of $10, to be kept as a “Congress shall have power to regulate commerce separate fund by the treasurer, and which shall be with foreign nations." We are unable to perceive any used in defraying expenses of and in respect to such violation of this provision of the Constitution, under permits, and for the inspection of the metallic cases, the broadest construction claimed by petitioner for coffins, and inclosing boxes herein required; and an ac- the term “commerce,' even if it includes the transcount of such moneys shall be embraced in the ac- portation of the remains of aliens to their own country counts and statements of the treasurer having the cus- for final sepulture. There is no reference to aliens or tody thereof."

to any extra-territorial act of any kind anywhere in “Sec. 3. Any person or persons who shall disinter, the statute, except in the last clause of section 3, which exhume, or remove, or cause to be disinterred, ex- is a wholly independent and different provision from humed, or removed from a grave, vault, or other re- that under consideration, creating an additional of. ceptacle or burial place, the body or remains of a de- fense, and might be wholly omitted without affecting ceased person, without a permit therefor, shall be guilty the remainder of the act. It is not necessary now to of a misdemeanor, and be punished by a fine not less consider the question of the validity of that provision. than fifty nor more than $500, or by imprisonment in The act deals with matters wholly within the State the county jail for not less than thirty days nor more within its territory — with the remains of parties who than six months, or by both such fine and imprison- have lived and died within its jurisdiction, and which ment. Nor shall it be lawful to receive such body, have been buried and which still remain buried in its bones, or remains on any vehicle, car, barge, boat, soil; and professedly and apparently for sanitary purship, steamship, steamboat, or vessel, for transporta- poses. The statute kuows nothing of the objects or tion in or from this State, unless the permit to trans- motives of the exhumation, except as provided in secport the same is first received and is retained in tion 6 that the act shall not apply to removals from evidence by the owner, driver, agent, superintendent, one place of interment to another in the same county. or master of the vehicle, car, or vessel.”

This exception is doubtless made for those common “Sec. 4. Any person or persons who shall move or cases wherein no vault or burial place has been protransport, or cause to be moved or transported, on or vided for the deceased during life, and the remains are through the streets or highways of any city or town temporarily deposited in a public receiving vault, or or city and county of this State, the body or remains the vault or grounds of some friend, till the surviving of a deceased person which shall have been disiuterred friends can provide for a place of final sepulture. These or exhumed, without a permit as described in section removals are ordinarily from one place of burial to 3 of this act, shall be guilty of a misdemeanor, and be another in the same or an adjacent cemetery, where punishable as provided in section 3 of this act."

there are several cemeteries lying near each other, as “Sec. 6. Nothing in this act shall be taken to apply in San Francisco, and therefore not so fully within the to the removal of the remains of deceased persons reason upon which the act is founded. The statute from one place of interment to another cemetery or deals with the local inter-territorial fact of burial and place of interment within the same county; provided, exhumation, without regard, in other respects than that no permit shall be issued for the disinterment or that stated, to motive or intention, race or nation, removal of any body, unless such body has been buried citizenship or alienage, future domestic or foreign sepfor two years." Stat. 1877-8, 1050.

ulture. The matter of the bui ial and exhumation of The petitioner, Wong Yung Quy, is, and Wong Wai the dead, with a view to sanitary objects, has in all Toon was, in bis life-time, a subject of the Emperor of times and among all civilized nations been regarded as China, of the Mongolian race, residing in the United a proper subject of local regulation. It is founded States. Wong Wai Toon died in January, 1876, and upon the law of self-protection. The fact that in many was buried in Laurel Hill Cemetery, a public cemetery or even most instances the object of disinterment is to of the city and county of San Francisco. In October, send the remains abroad, cannot affect the question. 1879, petitiouer, a relative of the deceased, having The local sanitary considerations must be the same, complied with all the provisions of said act, except the whatever the purpose of exhumation and transportapayment of ten dollars required by said act to be paid tion through the streets of a city. The fact that the for an exhumation and removal permit, demanded Chinese exhume and transport to their own country from the proper authorities permission to remove the the remains of all or nearly all of their dead (amountremains of said Wong Wai Toon from said cemetery, ing to more than ninety per cent of all such removals), and ship them to China. Refusal having been made while other aliens and citizens comparatively but rarely on the ground of the non-payment of said fee of ten perform these acts, only shows that this generality of dollars required to be paid by said act, the petitioner | practice requires more rigid regulations and more proceeded to disinter and remove said remains with- careful scrutiny, in order to guard against infectious

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