Two Asian Laundry Cases

by David E. Bernstein

Associate Professor

George Mason University School of Law

In Yick Wo v. Hopkins,^[1] the Supreme Court held that a facially-neutral laundry licensing regulation was an unconstitutional violation of the equal protection clause of the Fourteenth Amendment because the regulation was only enforced against Chinese laundrymen.  Even casual students of American constitutional history are likely to be aware that Yick Wo arose out of one of many legal challenges launched by Chinese laundrymen against San Francisco ordinances that were intended to drive the Chinese out of the laundry business. 

Very few people, on the other hand, know that Yick Wo did not end government harassment of Asian-owned laundries, nor did it end litigation over discriminatory laundry laws before the United States Supreme Court.  Montana continued its decades-long legislative campaign against Chinese laundries, culminating in the 1912 Supreme Court case of Quong Wing v. Kirkendall.^[2]  Over a decade after Yick Wo was decided, meanwhile, San Francisco authorities began to discriminate against the growing number of Japanese-owned laundries, leading to the 1902 Supreme Court case of Tsukamoto v. Lackman.^[3]

This article discusses Quong Wing and Tsukamoto in their respective historical contexts.  The history of these cases demonstrates the persistence of Asian immigrants in fighting for their constitutional rights, through both lawsuits and civil disobedience.  It also demonstrates that even after Yick Wo, Asian immigrant entrepreneurs who went into the laundry business were by no means assured that courts would protect their right to earn a living from hostile local governments.

Quong Wing v. Kirkendall

In the 1860s, migrants, including Chinese, began to settle Montana.  By 1870, 1,943 Chinese resided in Montana, ten percent of the territory’s population.^[4]  Several dozen of the Montana Chinese opened laundries.  Running a laundry appealed to impoverished Chinese immigrants because it did not require much knowledge of English or a large capital investment—a shack with a stove and a sufficient water supply usually sufficed.^[5]   Also, owning a business was a status symbol in the American Chinese community and in the immigrant’s home village, to which the laundry owner generally planned to return.^[6]  Finally, the laundry business was attractive because the Chinese hoped it would not raise the competitive ire of whites; few white women and even fewer men wanted to work as launderers, a profession considered arduous and unpleasant.

Unfortunately for the Chinese laundrymen, despite the usefulness of their profession, and the fact that they had few white competitors, anti-Chinese forces refused to leave them in peace.  As in other Western locales, Chinese laundrymen in Montana quickly became a target of rabble-rousers, demagogues, hooligans, and racists.  Anti-Chinese activists charged that the Chinese crowded out widows and other single women from working as launderers, forcing them to turn to prostitution.^[7]  A Helena newspaper complained that “[i]t is hard enough now for a white woman to make a living in the few branches of honest livelihood open to them. . . Chinamen actually wrest the wash-tub from them and invade those provinces of labor belonging to them.”^[8] 

This propaganda was based on mostly fictitious premises, serving as a pretext for preexisting anti-Chinese sentiment.  The women of frontier Helena, like the men, were overwhelmingly unattached and interested in making a fast buck, not always through legitimate means.  Because of the shortage of women on the frontier, and white men’s refusal to do “women’s work,” laundering was sufficiently lucrative for a few women that they took in laundry before the Chinese arrived, only to be displaced by Chinese working for more reasonable rates.^[9]   However, the picture drawn by Sinophobes of many virtuous young women and poor widows being forced out of the laundry trade in Helena in 1866 “just does not fit.”^[10]

Nevertheless, on January 27, 1866, a Helena committee placed a notice in the local newspaper complaining about “Mongolian Hordes” driving white women out of the laundry business.^[11]  The committee called on the community to boycott all Chinese launderers.^[12]  The newspaper in which the advertisement editorialized that the committee had its support “against the almond-eyed citizens of the John [a diminutive form of the pejorative, ‘John Chinaman’] persuasion.”^[13]

Several Chinese laundrymen responded with a plea of their own:

GOOD CHINAMEN

This is to certify that we, the undersigned, are good Chinamen and have lived in California and other parts of the United States, and that we have at all times been willing to abide by all the laws of the United States, and the States and Territories in which we have lived.  And are now willing to deport ourselves as good law abiding citizens of Montana Territory, and ask but that protection that the liberal and good government of this country permits us to enjoy.  We pay all our taxes and assessments, and only ask that the good people of Montana may let us earn an honest living by the sweat of our brow.^[14]

Apparently, the proposed boycott never got off the ground,^[15] assumedly because the Chinese performed an extremely useful service in frontier, mostly bachelor Helena.  As for Helena women, the vast majority of them were grateful that the Chinese relieved them of the need to do laundry.^[16]  The few married women were most likely especially thankful.  As Shover points out, “[l]aundry—attended by weekly lifting, carrying, scrubbing, bleaching, starching, hanging, dampening and pressing with five and ten pound irons heated year round on blazing stoves—was the most despised job in women’s sphere.”^[17]

Anti-Chinese forces in Montana soon turned to the legislature for assistance in ridding the state of Chinese laundrymen.  Beginning in 1869, Montana passed a series of licensing acts that imposed a quarterly tax of $15.00 on all men engaged in the laundry business.^[18]  The tax averaged fully 25 percent of the gross earnings of a Chinese laundryman.^[19]  Although the Chinese were not specifically mentioned in the law, “[t]he intent of the law was obviously discriminatory.”^[20]  In 1874, Montana increased the license fee to $20 per quarter.^[21]  This law eventually ceased to be enforced, perhaps because of an adverse legal ruling, and the laundries were no longer subject to a license fee.^[22]

Populist agitation against Chinese laundrymen in Montana continued over the next few decades.  Whites organized boycotts of the Chinese in Butte, Montana in the mid-1880s and early 1890s.^[23]  A Chinese man who attempted to open a laundry in Great Falls, Montana, in 1893, was arrested, jailed, smuggled out of town at night and threatened with death if he dared to return.  The Great Falls Tribune that “as long as the stars and stripes float over Great Falls no pig-tailed saffron will be allowed to call this city home.”^[24]

By the 1890s, many Chinese in Montana who had been working in the mines were forced out by a combination of violence and hostile legislation.^[25]  Some Chinese left Montana, but others moved to urban areas and opened businesses.  Chinese men quickly became a dominant presence in the laundry business in many Montana cities.  In Butte in 1890, for example, Chinese men owned at least four laundries.  By 1895 this grew to 18, against eleven white-owned laundries.^[26]  The growing number of Chinese laundries led to the following attack in a union-sponsored magazine:

Our laundries do not receive the support they are entitled to.  One hundred and twenty five Chinamen come in direct competition with them.  The filthy, nasty habits of the Chinese, especially when sprinkling clothes, should be alone sufficient to prevent John Chinamen from being given the work that belongs to our men and women.^[27]

The success of Chinese laundries led to calls for new restrictive legislation.  In 1894, Butte passed a law requiring all men in the laundry industry to pay a $5 per quarter license fee.^[28]  A Montana statute promulgated in 1895 required every male engaged in the hand laundry business to pay a license fee of ten dollars per quarter; if the owner had one or more employees, the license fee rose to twenty-five dollars.^[29]  The law exempted steam laundries, which were all owned and operated by whites,^[30] along with female-operated hand laundries, which were also all white-owned.^[31]  In fact, the law applied exclusively, or nearly so, to Chinese laundrymen.

Sam Toi, a laundryman who had one “helper,” challenged the law, and emerged victorious at the district court level.  The state then appealed to the Montana Supreme Court.^[32]  Yick Wo seemed to require that the law be declared unconstitutional, as it only applied to the Chinese.  The court, however, reversed, finding that the fact that the law in practice applied only to Chinese laundrymen was “purely fortuitous.”^[33]  After all, said the court, on its face the law “applies to all male laundrymen, of every condition and nationality.”^[34]  The discriminatory intent of the law, meanwhile, was irrelevant under Soon Hing v. Crowley,^[35] a laundry case decided by the Supreme Court a year before Yick Wo.

Despite the adverse Toi decision, the Chinese continued to fight the tax law.  The following year, the Montana Supreme Court once again upheld the statute in State v. Camp Sing.^[36]  After a rather confused discussion, the court concluded that “the unconstitutionality of the law in question is not so apparent as to justify this court in declaring the license law void.”^[37]

While the Montana Supreme Court proved unsympathetic to the Chinese laundrymen, they emerged victorious in federal district court.^[38]  Yot Sang, a Chinese laundryman in Helena, Montana, with one employee, was arrested for failing to pay the $25 license fee.^[39]   He then filed a petition for a writ of habeas corpus with the district court.^[40]

Although the court cited Yick Wo in passing, it did not find that the statute was racially discriminatory.  Rather, the court held that the law was unconstitutional because it was “class” or “partial” legislation that gave similarly situated people, in this case steam and hand laundry owners, different legal rights. The court asked rhetorically: “Is it not apparent that a law which requires of one man conducting a laundry  business, employing one or more persons, a license of $25, and of another man conducting such a business a license of $10, is subjecting the one to a burden not imposed upon the other?”^[41]

The court declared that the law’s discrimination between hand and steam laundries could not be sustained “[u]nless there is something so different in the conducting of a laundry by steam to that of the carrying on that business by any other means.”^[42]   The court noted that the state did not claim that “the mode of carrying on a laundry by means other than steam is more dangerous to health than a steam laundry, or that it is more conducive to the spread of fire.”^[43]  The court also explained that the state did not contend “that the conducting of a laundry by means other than steam involves a greater outlay of capital, or that a greater amount of business is conducted by hand than by steam.”^[44]  Indeed, added the court, “[t]o a man of ordinary observation the reverse would seem to be the fact.”^[45]  The court held that the law was unconstitutional, and ordered that Yot Sang be released.^[46]  The United States Supreme Court reversed this decision on procedural grounds, but the state, recognizing that its law had been declared unconstitutional in federal court, ceased to enforce it.

With the license law unenforceable after Yot Sang, anti-Chinese forces, led by local labor unions, launched boycotts of Chinese laundries in various cities over the next decade.^[47]   In late 1896, the proprietors of three leading steam laundries in Butte, along with local labor unions, launched a boycott of Chinese businesses.^[48]  In their literature, the boycott organizers emphasized the Chinese’s purported cultural and racial inferiority, as well as their alleged displacement of female workers.^[49]  The boycotters argued that because of the Chinese unemployed white girls could only find jobs as prostitutes, and that “they were drifting towards the hop joints.”^[50]  The labor press added that Chinese laundries were “pest houses” and that Chinese laundrymen were “leperous [sic] and mouth-spraying.”^[51] 

When the boycotts failed,^[52] the Chinese’s foes again turned to legislation.  In 1908, Montana passed a new licensing law targeting Chinese laundrymen.  The statute required all persons engaged in the laundry business must pay a tax of $10 per quarter.^[53]  Like the earlier statute, this statute exempted steam laundries, and hand laundries employing women in which fewer than two women were employed.  Once again, then, the statute applied exclusively to Chinese laundrymen.

On October 7, 1908, Thomas Kirkendall, the Treasurer of Lewis and Clark County, demanded that laundryman Quong Wing pay the $10 quarterly fee.  Quong Wing paid under protest, and then filed a complaint in Montana District Court to recover the $10.^[54]   For reasons apparently related to resentment over Quong Wing’s assimilation into white society, the Chinese establishment in Butte opposed the lawsuit.  One Chinese resident wrote:

The Chinese told Quong Wing not to start the lawsuit; they told him he would lose it. But he went ahead and did it anyhow.  He listened to some of his “Mission Friends”; they told him the law was unfair.  They would help him; the lawyer was a friend of one of the teachers at the Mission who taught him and the newcomers English.  Quong Wing wanted to show how smart he was; he could speak some English and most of us couldn’t.  Well, he didn’t get the support of the merchants in Chinatown.^[55]

Following the reasoning of the favorable Yot Sang opinion, Quong Wing’s complaint alleged that the licensing statute was an unconstitutional violation of the equal protection clause of the Constitution because it only applied to hand laundries and not to steam laundries, and only to men.^[56]  The district court agreed, and ordered that the $10 be returned to Quong Wing.^[57]

The Montana Supreme Court once again reversed.^[58]  The court found that if the statute classified laundries into the separate categories of steam laundries and hand laundries this was constitutionally permitted because the state legislature “probably had some good reason for exempting steam laundry proprietors.”^[59]  The court argued in the alternative that it that the statute did not classify laundries.  Rather, argued the court, the legislature simply indulged in its constitutional power to impose a tax on a particular occupation, hand laundries.^[60]  Because the statute applied to all male hand launderers, the law was “uniform and reasonable.”^[61]

The court then addressed Quong Wing’s claim that the license tax was unconstitutional because it did not apply to any women, or groups of two women, engaged in the laundry trade.  Although the  judges were not able to muster any sympathy for the struggling Chinese laundrymen, they had abundant concern for white female launderers.

The court noted that in every community there are “unfortunate women” who are obliged to take in washing for a living.^[62]  The court rhapsodized: “Some are widows, some have been abandoned, and others are caring for invalid husbands, and all, generally, have small children to support.”^[63]  According to the court, these women “do not compete with those laundries which are operated for profit, any more than do those who, from necessity or choice, perform the laundry work for one private family.”^[64]  The court concluded that the legislature was following “the natural dictates of humanity, and seems to have been actuated by sentiments altogether praiseworthy and commendable.”^[65]  To further justify its decision, the court quoted liberally from the United States Supreme Court’s opinion in Muller v. Oregon,^[66] which upheld a maximum hours statute that applied only to women to protect women from industrial competition with men.^[67]

Quong Wing appealed to the United States Supreme Court.  Quong Wing’s attorney never directly raised the issue of race discrimination in his brief, and apparently disclaimed the issue entirely at oral argument.^[68]  Instead, relying on the reasoning of Yot Sang, the attorney argued that the tax law was unequal class legislation that unreasonably and unconstitutionally discriminated against male-owned hand laundries in favor of steam laundries and women-owned hand laundries.^[69]  Montana’s brief also generally avoided the race issue, but the state did note that the statute was facially neutral regarding race.^[70] 

In an opinion authored by Justice Holmes, the Court affirmed the Montana Supreme Court’s opinion.^[71]  Holmes began by noting that “[t]he case was argued upon the discrimination between the instrumentalities employed in the same business and that between men and women.”^[72]  He then held, for the Court, that a “state does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain industries or forms of industry.”^[73]  Thus, preferring steam to hand laundries was permissible.

Moreover, added Holmes, a state may attempt to lessen burdens on women as the Supreme Court permitted with regard to hours of work in Muller v. Oregon.^[74]   After all, Holmes continued, “the 14th Amendment does not interfere by creating a fictitious equality where there is a real difference.”^[75]  Holmes did not address the differences between a maximum hours law, which might directly protect the health of women, and discriminatory taxation, which gives women a benefit unrelated to their purportedly frailer constitutions.

Holmes then specified that the Court’s affirmance of the Montana Supreme Court’s opinion was without prejudice to the issue of race discrimination, which had not been properly raised.^[76]   Holmes stated that if the law was targeted at the Chinese, as it seems to have been by its limited application to hand laundries, it would be unconstitutional under Yick Wo.  Holmes wrote:

It is a matter of common observation that hand laundry work is a widespread occupation of Chinamen in this country, while, on the other hand, it is so rare to see men of our race engaged in it that many of us would be unable to say that they ever had observed a case. But this ground of objection was not urged, and rather was disclaimed when it was mentioned from the bench at the argument. It may or may not be that if the facts were called to our attention in a proper way the objection would prove to be real.^[77]

In recent years, some commentators have found Holmes “particularly unsympathetic to ideas of racial equality,”^[78] and less than eager to use the courts in the cause of racial justice.^[79]  The fact that Holmes raised the issue of race discrimination sua sponte thus presents an interesting puzzle: does Holmes deserve more credit for sensitivity to racial issues, or was the race discrimination issue raised at the behest of one of his colleagues?

Justice Lamar dissented from Holmes’ opinion.  Lamar argued that the statute was not a valid  police power measure, but a revenue measure that made an “arbitrary discrimination.  It taxes some and exempts others engaged in identically the same business.”^[80]  Lamar noted that the license fee was not graduated, and, “[o]n the contrary, it exempts the large business and taxes the small. It exempts the business that is so large as to require the use of steam, and taxes that which is so small that it can be run by hand.”^[81]  Lamar added that the statute then engaged in further illicit discrimination among the small operators “based on sex. It would be just as competent to tax the property of men and exempt that of women. The individual characteristics of the owner do not furnish a basis on which to make a classification for purposes of taxation.”^[82]

The case was remanded to the state district court, where, following Holmes’ suggestion, Quong Wing provided evidence that the tax on male owners of hand laundries affected only Chinese laundrymen.  The district court therefore declared that the statute was unconstitutional.  The state then once again appealed to the Montana Supreme Court.^[83]

The court noted its reluctance “to subscribe to the doctrine announced in Yick Wo v. Hopkins,” but declared that the decision was nevertheless binding upon it.^[84]  Under the authority of Yick Wo, and the Holmes’ statement in Quong Wing that the tax on hand laundries would be void if it only applied to the Chinese, the court affirmed the district court’s ruling in favor of the laundryman.^[85]

Despite this favorable ruling, the number of Chinese laundries in Montana soon declined precipitously.  As the Montana mining boom busted, many workers deserted the state, and the Chinese were no exception.  Moreover, most Chinese laundrymen were bachelors, and the United States government had largely cut off Chinese immigration in 1882.  When a Chinese laundryman died, there was usually no one to replace him.  By 1920, there were fewer than 900 Chinese in all of Montana.^[86]   Between 1905 and 1930, the number of Chinese laundries in Butte, for example, declined from 31 to 9.^[87]

Tsukamoto v. Lackman

Unlike the Chinese, who began arriving in the United States in large numbers in the late 1840s, Japanese did not start migrating en masse to the United States until the 1880s.^[88]  Like the Chinese, many Japanese, faced with discrimination and violence when they competed with white workers, made their living as entrepreneurs in agriculture, restaurants, and laundries.

Tsukamoto Matsunosuke, a.k.a.George Tsukamoto, was one of the first Japanese to open a laundry in the United States.  He also became a reluctant pioneer in the battle for the rights of Japanese residents of the United States.  Tsukamoto opened a successful hand laundry in Tiburon, California, in 1892.^[89]  In 1899, he decided to start a steam laundry in San Francisco.^[90]  At this time, there were dozens of Chinese-owned hand laundries in San Francisco, but all of the steam laundries were owned by whites.

The whites-only Laundry Association of San Francisco threatened to boycott the supply house that was selling Tsukamoto equipment, but these threats were unavailing.^[91]  The Association then persuaded Tsukamoto to agree to charge the same prices as those set by the Association.^[92]  He proceeded to invest $6,000 to establish his laundry.^[93]

Tsukamoto still faced barriers to opening his laundry, however.  A San Francisco fire ordinance stated that anyone who sought to operate a steam boiler within the city must acquire a license from the Board of Supervisors.  The license could only be granted if the applicant filed with the clerk a certificate signed by the manufacturer or by a competent engineer that the boiler was sound on the date of application for the permit.  All boilers, moreover, needed to be constructed, erected and maintained to the satisfaction of the chief engineer and fire wardens of the city.^[94]  Even if those conditions were satisfied, the Board of Supervisors could still deny the license.

On August 5, 1899, Tsukamoto petitioned the Board of Supervisors for a steam boiler license for use in a laundry.  He included with his petition a certificate signed by a representative of the manufacturer that the boiler was in “sound and good condition.”^[95]

Two days later, several residents of the neighborhood in which Tsukamoto wished to operate his laundry presented the Board of Supervisors with a petition requesting that the Board

deny a petition made or about to be made by some Japanese for permission to establish a steam laundry and a steam boiler . . . as such establishment will not only be an intolerable nuisance from a sanitary standpoint, but will cause an increase of insurance rates, and will materially interfere with the development of the neighborhood.^[96]

On August 21, the Committee on Fire Department of the Board of Supervisors reported adversely on Tsukamoto’s petition.  The committee stated that the granting of the petition “would subject the residents and adjacent property owners to a serious nuisance in the shape of a so-called Japanese laundry, which would be injurious to the comfort of the residents of that section, as well as deteriorate the value of their property.”  This report was adopted by the Board of Supervisors, and Tsukamoto’s petition was denied.^[97]

On September 20, Tsukamoto filed a new petition with the Board of Supervisors.  This time, he attached a certificate signed by two competent boiler inspectors—one from the boiler company and one from Tsukamoto’s insurance company—stating that the boiler was in good order.  Tsukamoto also filed a certificate from one of the inspectors warranting that the person in charge of operating the boiler was in all respects competent for that job.^[98] 

At a hearing on Tsukamoto’s second application, all of the property owners living within a one block radius or Tsukamoto’s property protested against his license application, repeating the claims made in the petition submitted by Tsukamoto’s neighbors on August 7.^[99]  On October 9, the Fire Department committee reported to the Board of Supervisors that in its judgment the operation of Tsukamoto’s steam boiler would be “detrimental to the property rights” of the neighboring property owners, and that the local residents were entitled to protection from “any occupation or pursuit which requires an engine and boiler in its operation.”  The Board once again adopted the committee’s report, and denied Tsukamoto’s petition.^[100]

Tsukamoto nevertheless went ahead and operated the steam boiler in his laundry. On October 19, the authorities arrested Tsukamoto for violating the fire ordinance.^[101]  The police court convicted him on December 8, and sentenced him to pay a fine of twenty dollars or serve a twenty-day jail term.^[102]  Tsukamoto appealed to the California Superior Court, which affirmed the conviction, and explicitly held that the fire ordinance was constitutional.^[103]

Tsukamoto then filed a petition for a writ of habeas corpus in the federal circuit, Northern District of California.  The named defendant was John Lackman, the sheriff of the city and county of San Francisco.  In his petition, Tsukamoto alleged that other people had been granted permits by the Board of Supervisors to erect and maintain a steam boiler on the same block where he sought to operate, that many other permits were granted to people to operate steam boilers elsewhere in the city, and that the refusal of the Board to grant him a permit was “an unjust arbitrary and unreasonable discrimination against [him], . . . prompted solely by prejudice” against him because of his Japanese ancestry.^[104]  Tsukamoto argued that the fire ordinance, to the extent that it required him to get a permit in order to erect or maintain a steam boiler, was a violation of the Fourteenth Amendment because it deprived him of liberty or property without due process of law, and was a violation of the Equal Protection clause.  He also argued that the ordinance, as applied, violated the treaty between the United States and Japan, which prohibited discrimination against Japanese residents of the United States.^[105]

The City of San Francisco intervened in the action.  The city was represented by the district attorney and by Thomas Riordan, acting as special counsel.  It seems extraordinary that the city would hire an expensive private attorney to handle a minor licensing case; the authorities apparently was under great political pressure to keep the Japanese out of the steam laundry business.  Riordan often represented local Chinese in litigation against discriminatory laundry laws and other discriminatory legislation.  One wonders whether the Chinese surreptitiously supported the City so as to limit competition from Japanese laundries, or whether Riordan was hired simply because of his experience handling laundry cases. 

Regardless, the city argued that the Board’s refusal to grant Tsukamoto a permit was not due to any unreasonable discrimination against him, but because he sought to operate a steam laundry in an old, wooden building that would be susceptible to fire.^[106]  The city added that hundreds of whites had been denied permission to erect and maintain steam boilers.^[107]  Moreover, of the three hundred and fifty laundries in the city, two hundred and fifty were owned by Chinese who did not use steam boilers.  Thus, the city was not denying Tsukamoto an opportunity to pursue his livelihood, as it was obviously entirely possible to run a successful laundry without a steam boiler.^[108]

The city also filed a motion to dismiss Tsukamoto’s petition for a writ of habeas corpus for lack of jurisdiction.  The city argued that at this point Tsukamoto could only challenge his conviction by appealing to the California Supreme Court.^[109]  In a short, three-paragraph opinion, the federal district court granted the city’s motion to dismiss for lack of jurisdiction.  The court did not explain its rationale.^[110]

Tsukamoto appealed this decision to the United States Supreme Court.  In his brief, Tsukamoto’s attorney argued that the court below erred in dismissing the habeas corpus petition because the California Supreme Court could not exercise appellate jurisdiction over the decision of the San Francisco superior court.  Moreover, even if the court could exercise such jurisdiction, it could not grant Tsukamoto the relief he sought.^[111]  The brief did not explain why either of these assertions were true. 

Tsukamoto’s attorney also argued that if, as the defendants suggested below, Tsukamoto was to appeal directly to the U.S. Supreme Court from an adverse California Supreme Court ruling, it would be “very doubtful” that the U.S. Supreme Court would reach the issue of whether the ordinance in question “was being used, applied, or enforced unequally or oppressively against him.”^[112]  The rationale for this argument is not stated.  The attorney noted that Tsukamoto’s case had exactly the same procedural posture as, and very similar facts to, Wo Lee v. Hopkins, a case the Supreme Court decided as a companion case to Yick Wo v. Hopkins.^[113]  If the Court exercised jurisdiction in that case, why could it not do so here?

As noted previously, in Yick Wo the Supreme Court held that a San Francisco laundry licensing ordinance was unconstitutional because the ordinance was applied only against a certain racial class, Chinese laundrymen.  In dictum, the Court also expressed its disapproval of the law because it vested arbitrary authority in the Board of Supervisors to grant or deny a license.  Tsukamoto’s attorney argued that these rationales rendered the boiler license ordinance unconstitutional as well.^[114]

The respondents, now represented solely by Riordan, maintained that the lower court did not err in refusing to exercise jurisdiction over Tsukamoto’s petition, because the Supreme Court had previously held in several cases that a petitioner should generally take his case to the highest court in his state, and then proceed to the U.S. Supreme Court via writ of error.^[115]  Riordan also vigorously argued that the ordinance was not applied in a discriminatory manner.   According to Riordan, the ordinance had been in place for twenty years, and Tsukamoto was “the only person who has alleged or does allege that . . . he has been discriminated against.”^[116]  Meanwhile, Riordan argued, the city had a right under its police power to protect the safety of its citizens from potentially dangerous boilers.^[117]

The case was submitted to the Supreme Court on October 16, 1902.  Just four days later, the Court issued a one-sentence ruling, which stated the following: “Court issue Final order affirmed with costs, on the authority of  Minnesota v. Brundage, 180 U.S. 499;  Markuson v. Boucher, 175 U.S. 184, and cases cited.”  In Brundage, the Court had held, consistent with prior rulings, that except in cases of extreme urgency, an applicant for a writ of habeas corpus must exhaust all potential state remedies before the Supreme Court will hear his petition.  In Markuson, the Court had reiterated its position that the proper way of challenging a state court criminal conviction in the Supreme Court was by a writ of error, not a petition for a writ of habeas corpus.

For unknown reasons, Tsukamoto did not pursue his case back to the California Supreme Court.  Instead, he continued to operate his laundry illegally.  He had discovered that while the fire ordinance prohibited the use of steam boilers without a permit, the use of heater boilers up to twelve horse power did not require a permit.^[118]  When an inspector came, Tsukamoto claimed that his steam boiler was actually a heater boiler.  Inspections were frequent, and while some inspectors were sympathetic to Tsukamoto or were lackadaisical, others vigorously enforced the law.  Tsukamoto was arrested over fifty times in a one and a half year period.^[119]  Usually, his lawyer bailed him out quickly, but once he spent over three weeks in jail.^[120]

Constant harassment by San Francisco authorities put Tsukamoto’s laundry in dire financial straits, as he could not afford to pay his employees, all of whom were Japanese.^[121]  He appealed to them to work without wages until his legal situation could be resolved.  He explained that the outcome of his struggle could effect the rights of all Japanese immigrants to the United States:

If this matter is given up without any effort shown on my part, any others who might want to engage in this type of business would end up in a similar result.  I can not bear to see our people lose the rights which we have finally obtained by treaties, just because of an individual’s carelessness or not enough efforts put into it.  At this time when our business has just started and not so well equipped, I could not think of any other way but to ask you to give this matter a thought.  If I were to pay out your wages at this time where would I find he money to pay the court expense?  If I were to pay the court expense, I would not be able to pay your wages.  There is a fund of $4,000 which I have set aside for this business.  I wish to consider this fund as a mutual fund of ours with each one of you having an equal right in it and use it to achieve our goal in this incident to fulfill the desire of the Japanese people.^[122]

Tsukamoto’s employees unanimously agreed to the suspension of wage payments.  Six months later, harassment of the laundry decreased substantially, and Tsukamoto was able to pay his employees their wages, and ultimately their back wages as well.^[123]  Still, he was arrested an average of every few months for the next decade and a half.^[124]

Other Japanese, discouraged by Tsukamoto’s legal problems, opened hand laundries instead of steam laundries.  As of 1908, there were eighteen Japanese hand laundries in San Francisco, compared with 102 French-owned laundries, several large white-owned steam laundries, and 102 Chinese laundries.^[125]  Despite the small number of Japanese laundries, white laundry owners and workers considered the Japanese a great threat.  The number of Japanese laundries had doubled in two years,^[126] and, unlike the Chinese, who had grown leery over the years of inciting white hostility, the Japanese aggressively pursued white laundry owners’ customers.^[127]

Moreover, white laundry owners and workers knew the Japanese had been very successful in the laundry industry in several Bay Area cities where Japanese were able to acquire permits for steam laundries.  White laundry owners in San Francisco feared that if the Japanese managed to obtain the requisite permits in their city, the Japanese would be similarly successful.^[128]

In 1908, union laundry workers and white owners of steam laundries formed an “anti-Jap Laundry League.”^[129]  Employers contributed 10 cents per month for each employee on their respective payrolls to the League, while the laundry workers’ and drivers’ unions each contributed $100.^[130]  Later, owners of French laundries also contributed to the anti-Japanese campaign.^[131]

The League had two goals: to reduce the number of patrons of Japanese laundries, and to prevent the Japanese laundry owners from operating steam laundries.^[132]  In pursuit of the first goal, the League hired workers to follow Japanese delivery wagons to their customers, and to followers customers to Japanese laundries.  The League then sent letters to these customers to discourage them from patronizing the Japanese laundries, such as the following:

Have you ever given any consideration to the thought that as a patron of a Japanese laundry you are in great measure helping to undermine your own prosperity—that you are helping to deprive women and girls of your race of a chance to earn a respectable living, that you are encouraging and financially aiding a Jap, who has no interest in common with your own, that prosperity for a Jap spells ruin for white [sic] engaged  in a similar line of avocation, and that success of Japs in one line of business simply encourages them to branch out along other lines, and that ere long the battle for a living as against oriental competition will have reached you direct.

While we concede your right to patronize whom you choose, we appeal to your sense of fair play by asking you whether for a few cents saved on your laundry bill you can afford by your actions to declare in favor a Jap and against women and girls of your own race, many of whom are entirely dependent upon their own resources for a living.

The people of our city are becoming aroused to the danger menacing our industrial conditions from this Japanese invasion. Business men are responding to our appeals.  Unions are passing laws fining their members, and from many sources we receive the names and addresses of patrons of  Jap laundries.

You must surely realize that one can not compete with a Jap and maintain a white man's standard of living.

Are we asking too much of you, then, in urging you to unite with us in our endeavor to stay the onward march of the Japanese upon so many of the industrial lines?

Will you not cease giving your work to a Jap laundry and thus show by your actions that you indorse [sic] our plea and assist us in our effort to maintain a white man's standard in a white man's county?

Believing you will, and inviting your to attend our meetings, held at the above address each Thursday evening, we remain,

Respectfully,

Anti-Jap Laundry League^[133]

Recipients of one letter who continued to patronize Japanese laundries received a second letter along the same lines.^[134] 

The League also picketed Japanese laundries,^[135] boycotted supply houses that sold laundry supplies to the Japanese,^[136] and posted large billboards around San Francisco and other cities that read:

The Jap Laundry Patrons.

Danger!

Yellow Competition

Fostered by the white man's money,

Is the ammunition that will

Orientalize our city and State

Anti-Jap Laundry League^[137]

The League claimed that it could force the electoral defeat of any San Francisco official who favored granting Japanese the requisite permits to open steam laundries.^[138]

In response to the threat from the League, in 1909 several Japanese laundry owners in San Francisco organized the Japanese Laundry Association of America to protect their interests.  The association provided financial aid and help in finding employees when needed, and also set the working hours and prices for the Japanese laundries.^[139]   To fund these activities, each member  paid $2 per month until his contribution reached $100.^[140]

While white laundry workers were racist, their fear of Japanese competition was not baseless.  Since 1900, the Laundry Workers’ Union had been working to achieve a significant reduction in its members’ hours of labors.  In 1907, the union signed a contract with laundry owners establishing a forty-eight hour work week.^[141]  The work week agreement would only take effect if French and Japanese-owned laundries adopted the same work week.^[142]  Not surprisingly, the Japanese refused to comply.^[143]  Japanese laundry workers received wages similar to white male workers, plus room and board.  In return for this higher compensation, they worked ten hours a day six days a week, plus overtime, as opposed to the eight hour work day sought by white workers.^[144]

When the French and Japanese did not comply, the union turned to legislation to achieve it goals.  A 1912 San Francisco statute prohibited a broad range of laundry-related activities, including washing, ironing, and delivering clothes, between 6:00 p.m. and 7:00 a.m.  Chinese laundrymen, who were also negatively affected by the law, unsuccessfully challenged it in state court,^[145] and then, relying on Lochner v. New York,^[146] launched a successful challenge in federal court.^[147]

Despite hostile legislation, discriminatory enforcement of the boiler rules, and the tactics of the anti-Jap Laundry League, between 1909 and 1921 the number of Japanese-owned laundries in San Francisco increased from nineteen to 240.^[148]  By 1921, the laundry industry employed 21 percent of all Japanese workers in San Francisco.^[149]

Meanwhile, due to pressure from the League, Japanese laundry owners were unable to get boiler permits, so all 240 Japanese-owned laundries were hand laundries—except for Tsukamoto’s.^[150]  He continued to run his steam laundry under false pretenses until 1919.  That year, he received notice from the San Francisco Board of Supervisors that the fire regulation had been amended to require that all boilers, including heat boilers, be licensed by the Board of Supervisors.^[151]  Tsukamoto applied for a license, but was denied.^[152]

Instead of giving up, he purchased a nearby building and established a new steam laundry there.  Borrowing a tactic commonly used by Japanese seeking to evade California’s alien land law, which prohibited Japanese from owning land,^[153] Tsukamoto incorporated under the name of a white person.  An attorney friendly to the Japanese took care of the license application, and Tsukamoto was thereafter able to run his steam laundry without fear of official harassment.^[154]

Conclusion

While Yick Wo v. Hopkins is today considered a great civil rights case, the history described in this article reminds us that the case’s actual holding was relatively narrow, requiring a party who sought to challenge a discriminatory law to prove that the law operated only against his racial or ethnic group.  After admirable persistence, and years of government discrimination against Chinese laundrymen in Montana, Quong Wing was able to persuade the courts to overturn Montana’s discriminatory legislation based on Yick Wo.  George Tsukamoto, however, apparently was not able to win a similar battle in San Francisco on behalf of Japanese laundrymen, at least in part because he was not able to prove that only Japanese had been denied boiler license.  Tsukamoto instead turned to civil disobedience and artifice to protect his right to run his business.

Despite their disparate fates in the courts, both Quong Wing and George Tsukamoto deserve recognition as civil rights pioneers.  While their victories against state-sponsored racism were neither as clear-cut nor as apparent from the U.S. Reports as Yick Wo’s, each of them brought the United States one step closer to the recognition of equality under the law through their lawsuits and perseverance.  The cases they brought should be a part of our collective constitutional memories.  Moreover, their struggles reflect the hostility and discrimination faced by thousands of other Chinese and Japanese immigrants to the United States.  For that reason, too, their stories deserve to be remembered.