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corporation, partnership, or individua" who employs more than five workers at any one time "regardless of kind or class of work, or sex of workers” shall employ “not less than eighty per cent qualified electors or native-born citizens of the United States or some subdivision thereof." It thus covers the entire field of industry with the exception of enterprises that are relatively very small. Its application in the present case is to employment in a restaurant the business of which requires nine employés. The purpose of an act must be found in its natural operation and effect (Henderson v. Mayor, 92 U. S. 259, 268; Bailey v. Alabama, 219 U. S. 219, 244), and the purpose of this act is not only plainly shown by its provisions, but it is frankly revealed in its title. It is there de
, scribed as “An act to protect the citizens of the United States in their employment against non-citizens of the United States, in Arizona.” As the appellants rightly say, there has been no subterfuge. It is an act aimed at the employment of aliens, as such, in the businesses described. Literally, its terms might be taken to include with aliens those naturalized citizens who by reason of change of residence might not be at the time qualified electors in any subdivision of the United States, but we are dealing with the main purpose of the statute, definitely stated, in the execution of which the complainant is to be forced out of his employment as a cook in a restaurant, simply because he is an alien.
It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the amendment to secure. Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 762; Barbier v. Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiana, 165 U. S. 578, 589, 590; Coppage v. Kansas, 236 U. S. 1, 14. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that “the employment of aliens unless restrained was a peril to the public welfare." The discrimination against aliens
in the wide range of employments to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration to admit or exclude aliens-is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as choose to offer hospitality.
It is insisted that the act should be supported because it is not “a total deprivation of the right of the alien to labor”; that is, the restriction is limited to those businesses in which more than five workers are employed, and to the ratio fixed. It is emphasized that the employer in any line of business who employs more than five workers may employ aliens to the extent of twenty per cent of his employés. But the fallacy of this argument at once appears. If the State is at liberty to treat the employment of aliens as in itself a peril requiring restraint regardless of kind of work, it cannot be denied that the authority exists to make its measures to that end effective. Otis v. Parker, 187 U. S. 606; Silz v. Hesterburg, 211 U. S. 31; Purity Extract Co. v. Lynch, 226 U. S. 192. If the restriction to twenty per cent now imposed is maintainable the State undoubtedly has the power if it sees fit to make the percentage less. We have nothing before us to justify the limitation to twenty per cent save the judgment expressed in the enactment, and if that is sufficient, it is difficult to see why the apprehension and conviction thus evidenced would not be sufficient were the restriction extended so as to permit only ten per cent of the employés to be aliens or even a less percentage, or were it made applicable to all businesses in which more than three workers were employed instead of applying to those employing more than five. We have frequently said that the legislature may recognize degrees of evil and adapt its legislation accordingly (St. Louis Consol. Coal Co. v. Illinois, 185 U. S. 203, 207; McLean v. Arkansas, 211 U. S. 539, 551; Miller v. Wilson, 236 U. S. 373, 384); but underlying the classification is the authority to deal with that at which the legislation is aimed. The restriction now sought to be sustained is such as to suggest no limit to the State's power of excluding aliens from employment if the principle underlying the prohibition of the act is conceded. No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment, for as we have said it relates to every sort. The discrimination is against aliens as such in competition with citizens in the described range of enterprises and in our opinion it clearly falls under the condemnation of the fundamental law.
The question of rights under treaties was not expressly presented by the bill, and, although mentioned in the argument, does not require attention in view of the invalidity of the act under the Fourteenth Amendment.
HEIM V. MCCALL
Supreme Court of the United States
Decided November 29, 1915
Section 14 of the Labor Law of the State of New York provides that
In the construction of public works by the State or a municipality, or by persons contracting with the State or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the State of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void.
The requirements of this section were incorporated into the contracts let by the Public Service Commission for the First District of the State of New York for the construction of additional subway lines in the City of New York. In the course of construction the contractors employed a large number of laborers and mechanics who were Italian subjects. Complaint was made to the Public Service Commission of the violation
1 Laws 1909, Ch. 36, Consol. Laws, Ch. 31. This section was amended by Act of March 11, 1915, Ch. 51, Laws of New York, 1915, so as to read that in the construction work referred to "preference shall be given to citizens over aliens," and that "aliens may be employed when citizens are not available."
of the law and the alien labor provision in the contracts and the Commission refused to approve monthly payments due to the contractors and threatened to declare the contracts void. A bill in equity was then filed to restrain the Public Service Commission from taking such action. The bill alleged, among other things, that the law was unconstitutional for the reason that its enforcement would deprive employers and employés of liberty and property without due process of law and deny to both the equal protection of the laws, and because it was in violation of the treaty of 1871 between the United States and Italy which, it was contended, put aliens within the State of New York upon an equality with citizens of the State with respect to the right to labor upon public works. The case reached the Court of Appeals of New York, which ordered the bill dismissed, and an appeal was taken to the Supreme Court of the United States. Adopting the findings of the New York Court of Appeals on the points of local law decided by it, the Supreme Court of the United States, by Mr. Justice McKenna, delivered the following opinion on the constitutional and treaty questions involved:
The contentions of plaintiffs in error under the Constitution of the United States and the arguments advanced to support them were at one time formidable in discussion and decision. We can now answer them by authority. They were considered in Atkin v. Kansas, 191 U. S. 207, 222, 223. It was there declared, and it was the principle of decision, that "it belongs to the State, as guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities." And it was said, “No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.'
This was the principle declared and applied by the Court of Appeals in the decision of the present case. Does the instance of the case justify the application of the principle? In Atkin v. Kansas the law attacked and sustained prescribed the hours (8) which should constitute a day's work for those employed by or on behalf of the State, or by or on behalf of any of its subdivisions. The Fourteenth Amendment was asserted against the law; indeed, there is not a contention made in this case that was not made in that.
In all particulars except one the case was the prototype of this. There the hours of labor were prescribed; here the kind of laborers to be employed. The one is as much of the
essence of the right regulated as the other, that is, the same elements are in both cases.
The contentions of plaintiffs in error, therefore, which are based on the Fourteenth Amendment cannot be sustained.
Are plaintiffs in error any better off under the treaty provision which they invoke in their bill? The treaty with Italy is the one especially applicable, for the aliens employed are subjects of the King of Italy. By that treaty (1871) it is provided, Articles II and III, 17 Stat. 845, 846:
The citizens of each of the high contracting parties shall 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 warehouses, 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.
The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant 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.
There were slight modifications of these provisions in the treaty of 1913, as follows:
That the citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant security and protection for their persons and property and for their rights.
Construing the provision of 1871 the Court of Appeals decided that it “does not limit the power of the State, as a proprietor, to control the construction of its own works and the distribution of its own moneys." The conclusion is inevitable, we think, from the principles we have announced. We need not follow counsel in dissertation upon the treatymaking power or the obligations of treaties when made. The present case is concerned with construction, not power; and we have precedents to guide construction. The treaty with Italy was considered in Patsone v. Pennsylvania, 232 U. S. 138, 145, and a convention with Switzerland (as in the present case) which was supposed to become a part of it. It was held that a law of Pennsylvania making it unlawful for unnaturalized foreign-born residents to kill game and to that end making the possession of shotguns and rifles unlawful, did not violate the treaty. Adopting the declaration of the court below, it was said "that the equality of rights that the treaty assures is equality only in respect of protection and security for persons and property.” And the ruling was given point by a citation of the power of the State over its wild game which might be