Yick Wo v. Hopkins (1886)

This is the classic authority for two ideas you need in the unit on discretionary power:

• Unguided power is arbitrary power. A law that lets an official grant or refuse permission at his mere will, with no rule to guide him, gives him not a discretion "in the legal sense of that term" but a power that "acknowledges neither guidance nor restraint."
• A fair law can be applied unfairly. Even a law "fair on its face and impartial in appearance" violates equal protection if it is administered "with an evil eye and an unequal hand".

The Supreme Court of India cited it in Dwarka Prasad Laxmi Narain v State of U.P. (1954) for the danger of unrestricted power in officials' hands. Be careful about one point: the famous passage about power that "may proceed from enmity or prejudice, from partisan zeal or animosity" is not Matthews J's own language. In Yick Wo he is quoting the Court of Appeals of Maryland in City of Baltimore v Radecke, with approval. Say so in an answer.

San Francisco ordinances made it unlawful to carry on a laundry in the city and county without the consent of the board of supervisors, unless the laundry was in a building of brick or stone. Breach was a misdemeanour.

Yick Wo, a subject of the Emperor of China, had come to California in 1861 and had run a laundry in the same building for twenty-two years. He held a certificate from the fire wardens that his premises were safe and a certificate from the health officer that they were properly drained. His city licence was in force. He applied to the supervisors for consent; they refused it. He carried on, was convicted, fined $10, and imprisoned in default of payment. He applied for habeas corpus.

Several facts were admitted on the record. About 310 of the city's 320 laundries were in wooden buildings, and about 240 were owned by Chinese subjects. Yick Wo and about 200 of his countrymen had petitioned for consent, and all were refused; all the petitions of those who were not Chinese, with one exception (Mrs. Mary Meagles), were granted. About eighty laundries run by non-Chinese in similar conditions were left alone, while Yick Wo and more than 150 of his countrymen were arrested.

The Supreme Court of California upheld the ordinances as fire-safety regulation and refused the writ. In the parallel case of Wo Lee, Circuit Judge Sawyer thought the ordinance was designed to drive out Chinese laundrymen, but out of deference to the California court he too refused relief.

1. Did the ordinances give the supervisors a lawful discretion, or an arbitrary power?
2. Can a law fair on its face violate the Fourteenth Amendment because of the way it is administered?
3. Were the petitioners, as Chinese subjects, entitled to the Fourteenth Amendment's protection?

The judgments of the Supreme Court of California and of the Circuit Court were reversed, with directions to discharge both petitioners from custody.

The ordinances conferred arbitrary power

The Court first gave the ordinances its own reading, differing from the California court. They did not confer a discretion exercised on the circumstances of each case; they "seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent not only as to places, but as to persons." A competent applicant who met every reasonable condition could be refused, and the supervisors could answer that "the law had conferred upon them authority to withhold their assent without reason and without responsibility."

So: "The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint."

The Court contrasted this with ordinary licensing, where the licensing officer must decide whether the applicant is a fit person: there, "the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature." Here, the ordinance divided wooden-building laundry owners into two classes "merely by an arbitrary line", and "both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living."

The rule of law: no room for purely personal power

Matthews J explained why this matters. The American system does "not mean to leave room for the play and action of purely personal and arbitrary power." And: "the law is the definition and limitation of power." In a well-known passage: "For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."

The danger of unguided power (quoting the Maryland court)

The Court noted that courts have long reviewed the by-laws of municipal bodies for reasonableness, and relied on City of Baltimore v Radecke, decided by the Court of Appeals of Maryland. There, an ordinance let the mayor order anyone using a steam engine to remove it. The Maryland court had said an ordinance may be "so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise the presumption that the legislature never intended to confer the power to pass it". Of the steam-engine ordinance it said "there is nothing in the ordinance to guide or control his action", and that it "lays down no rules by which its impartial execution can be secured or partiality and oppression prevented."

Then the passage for which the case is cited in India, quoted in Yick Wo from the Maryland judgment: "when we remember that this action or nonaction may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being brought under cover of such a power, for that becomes apparent to everyone who gives to the subject a moment's consideration." The Maryland court concluded that "an ordinance which clothes a single individual with such power hardly falls within the domain of law".

(The passage is sometimes quoted in Indian judgments in slightly different words — for example, with injustice wrought under cover of unrestricted power, becoming apparent to every man without detailed investigation. The text as it appears in Yick Wo is the version above; quote that.)

Discriminatory administration of a fair law

The Court did not have to decide the case on the face of the ordinances alone, because it had the ordinances "in actual operation". The facts showed an administration "directed so exclusively against a particular class of persons" that the authorities applied the law "with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws" secured by the Fourteenth Amendment.

The principle: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

On the facts: "No reason whatever, except the will of the supervisors, is assigned" for refusing consent. "The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong". The discrimination was therefore illegal, and "The imprisonment of the petitioners is, therefore, illegal, and they must be discharged."

Aliens are protected too

The petitioners' rights were "not less because they are aliens and subjects of the Emperor of China." The Fourteenth Amendment "is not confined to the protection of citizens"; its provisions "are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws."

1. A law that lets officials grant or refuse permission to carry on a lawful business at their mere will, without any rule or standard, confers arbitrary power, not discretion in the legal sense.
2. A law fair on its face violates the equal protection guarantee if it is administered so as to make unjust and illegal discriminations between persons in similar circumstances. Where discrimination is shown and no reason for it is given, the court may infer that the only reason is hostility to the class discriminated against.
3. The Fourteenth Amendment protects all persons within the jurisdiction, including aliens.

• Direct question: What are the dangers of conferring unguided discretion on administrative authorities? Discuss with case law. Use Matthews J's distinction between discretion "in the legal sense of that term" and power "granted to their mere will". Then quote the passage on "enmity or prejudice", saying that the Court was quoting the Maryland court in City of Baltimore v Radecke. Link it to Dwarka Prasad Laxmi Narain v State of U.P. (1954), where the Supreme Court of India relied on it.
• Article 14 link: Can a law valid on its face be struck down because of discriminatory administration? Quote the "evil eye and an unequal hand" passage. Explain the two separate grounds in Yick Wo: a law may be bad because of the power it confers, and it may also be bad in the way it is applied.
• Problem question: a licensing officer grants licences to one community and refuses all applications from another, giving no reasons, under a rule that gives him complete discretion. Apply both limbs: the rule confers unguided power, and the pattern of refusals, with no reason shown, supports an inference of hostile discrimination.
• Always say that this is a US Supreme Court decision, persuasive in India.