companies were not bound to furnish, in the absence of a statute, to all independent express companies, equal facilities for doing an express business upon their passenger trains.

These observations answer the contention of plaintiff that defendant, by erecting the wharf and using it in the way it does, has thereby devoted its property to a public use, and that it has thereby granted to the public an interest in such use, within the principle laid down in Munn v. Illinois, 94 U. S. 113. It has not devoted its wharf to the use of the public in so far as to thereby grant to every vessel the right to occupy its private property upon making compensation to defendant for the exercise of such right. The reasons we have already endeavored to give.

The judgments of the Circuit Court of Appeals and of the Circuit Court for the Northern District of Florida are reversed, and the case remanded to the latter court for further proceedings not inconsistent with this opinion.

MR. JUSTICE HARLAN dissents.

Reversed.

AH!SIN v. WITTMAN.

ERROR TO THE SUPERIOR COURT IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA.

No. 245. Submitted April 28, 1905.-Decided May 29, 1905.

Where the petitioner contends that a criminal law of the State is unconstitutional because it denies a class to which he belongs the equal protection of the law, not on the ground that it is unconstitutional on its face, or discriminatory in tendency and ultimate actual operation, but because it is made so by the manner of its administration, in being enforced exclusively against such class, it is a matter of proof and no latitude of intention will be indulged, and it is not sufficient to simply

198 U. S.

Argument for Plaintiff in Error.

allege such exclusive enforcement but it must also appear that the conditions to which the law was directed do not exclusively exist among that class and that there are other offenders against whom the law is not enforced.

THE facts are stated in the opinion.

Mr. George D. Collins for plaintiff in error:

As the ordinance is enforced only against Chinese persons it violates the Fourteenth Amendment and is void.

v. Hopkins, 118 U. S. 356, and cases cited.

Yick Wo

The state court has so construed the ordinance that it makes criminal the innocent visit to a place, lawfully barricaded and barred against trespassing, by the police, and where, without the privity of the visitor, the articles specified are exposed to view, there being present three or more persons. The right of liberty that a person may visit any place where he is lawfully invited is one which cannot be infringed, except where necessary in the legitimate exercise of the police power of the State. This power cannot be used to prohibit or punish what is entirely innocent or indifferent; it must be exercised in subordination to the Federal Constitution. Lawton v. Steele, 152 U. S. 137; Mugler v. Kansas, 123 U. S. 661; Health Dept. v. Trinity Church, 145 N. Y. 321; In re Jacobs, 98 N. Y. 105; St. Louis v. Roche, 31 S. W. Rep. 915; Railway Co. v. Smith, 173 U. S. 689; Minnesota v. Barber, 136 U. S. 320; Gulf &c. Ry. Co. v. Ellis, 165 U. S. 155.

It is the constitutional right of a person to bar, barricade and protect his premises against entry by police officers who have no right to enter and who are nothing but trespassers.

What is done in a barred and bolted house is not in the presence of a man outside. Indeed, not even an officer can, without a warrant, break an outer door to arrest persons within, who are merely engaged in unlawful gaming. 1 Bish. New Crim. Proc. § 197; McLennan v. Richardson, 15 Gray, 74. The ordinance is unconstitutional because of its discrimination in favor of the three persons who visit the designated

house or room; their visit is not unlawful, but the visit of the plaintiff in error, while the other three are present, is made criminal and punishable, thus depriving him of the equal protection of the laws.

While an ordinance similar to this was held valid in Re Ah Cheung, 136 California, 678, these points were not decided, and the court erred in assuming that police officers have the legal right to enter upon private premises to ascertain whether illegal gambling is being carried on. A police officer, as such, has no right to enter on private premises unless in the execution of process, or to make an arrest for felony, or to prevent an escape; manifestly not to discover, or suppress, or make an arrest for gambling where he has no warrant or process. Cases supra and $86, Penal Code of California.

The system of police espionage prevailing in Europe would not be lawful in the United States, nor in England; it would be unlawful to issue a search-warrant for the purpose of obtaining evidence of crime, by way of discovery. Cooley's Const. Lim., 7th ed., 424, 431; Boyd v. United States, 116 U. S. 630.

Whatever may be the opinion of the state court this court will place its own construction upon the ordinance, and will not interpolate, in order to make it valid, a provision which it does not contain. Yick Wo v. Hopkins, 118 U. S. 356.

Mr. L. F. Byington and Mr. I. Harris for defendant in error: As to the point that the ordinance is unconstitutional because it is enforced against Chinese only. It may be that as far as is known the Chinese are the only persons who have thus far violated this ordinance. It does not appear that others offended and were not punished.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Error to the judgment of the Superior Court of the city and county of San Francisco, State of California, discharging a writ of habeas corpus.

Plaintiff in error filed a petition in said court, alleging that he was a subject of the Emperor of China, and was restrained of his liberty by defendant in error, who was the chief of police of the city and county of San Francisco, under a judgment of imprisonment rendered in the police court of said city for the violation of one of its ordinances. The ordinance is as follows:

"Prohibiting the exposure of gambling tables or implements

in a room barred or barricaded or protected in any manner to make it difficult of access or ingress to police officers, when three or more persons are present; or the visiting of a room barred and barricaded or protected in any manner to make it difficult of access or ingress to police, in which gambling tables or implements are exhibited, or exposed, when three or more persons are present.

"Be it ordained by the people of the city and county of San Francisco as follows:

"SEC. 1. It shall be unlawful for any person within the limits of the city and county of San Francisco to exhibit or expose to view in any barred or barricaded house or room, or in any place built or protected in a manner to make it difficult of access or ingress to police officers when three or more persons are present, any cards, dice, dominoes, fan-tan table or layout, or any part of such layout, or any gambling implements whatsoever.

"SEC. 2. It shall be unlawful for any person within the limits of the city and county of San Francisco to visit or resort to any such barred or barricaded house or room or other place built or protected in a manner to make it difficult of access or ingress to police officers, where any cards, dice, dominoes, fantan table or layout, or any part of such layout, or any gambling implements whatsoever are exhibited or exposed to view when three or more persons are present.

"SEC. 3. Every person who shall violate any of the provisions of this ordinance shall be deemed guilty of misdemeanor,

and upon conviction thereof shall be punished by a fine not to exceed five hundred ($500.00) dollars, or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.

"SEC. 4. This ordinance shall take effect and be in force on and after its passage."

The complaint in the police court charges a violation of the ordinance by the plaintiff in error. The petition for a writ of habeas corpus alleges that the ordinance violates section one of the Fourteenth Amendment of the Constitution of the United States, in that it deprives plaintiff in error of the equal protection of the laws, because it is enforced solely and exclusively against persons of the Chinese race, and in that it "unjustly and arbitrarily discriminates in favor of certain visitors and also in favor of certain persons resorting to the house, room or place referred to in said ordinance, as well as in favor of such persons and visitors as resort to or visit such house or room or place when not barred or barricaded or protected in a manner to make the same difficult of access or ingress to police officers." These objections, it is alleged, were made by him in the police court and overruled.

The petition also alleges that plaintiff in error is, by the ordinance, deprived of his liberty without due process of law, in that he is prohibited thereby from visiting, innocently and for a lawful purpose, the house or room or place mentioned in said ordinance.

It is also alleged that the ordinance is in contravention of the treaty between the United States and China.

Upon filing the petition a writ of habeas corpus was issued, returnable before the court on the twenty-second of March, 1904, and petitioner admitted to bail in the sum of $10.

The following is the order of the court dismissing the writ and remanding the petitioner to custody:

"This matter came on regularly for hearing this 28th day of March A. D. 1904, the petitioner being represented by his counsel and the people being represented by the district attor