.
In reCHRIsTENSEN. (Oireutt Oourt, N.' D.' Oalifornia. September., 1890.) MumOIPALCORPORATI()Ns-ORDINANOES-CONSTITUTIONAL LAW.
A municipal ordinance, requiring all retail liquor dealers to procure a license, ma.k.ing it an offense to retail liquor without such license, and at the same time forbidding any such license to be issued unless upon the arbitrary, uncontrolled, written consent of ,a certain desill"nated number of persons, there being no other qllalificatiolls or conditions prescribed, violates the constitution of the United States, and is void. (S1/UUbus by the Oourt.) .
Petition. for Writ of Habeas Corym· .Alfred Clarke, for petitioner. Da11i8 Louderback, contra. BefQre SAWYER, Circuit Judge. SAWYER, J. lam always extremely desirous .of avoidinF; any interference with the state cOurts in the execution of the laws, or what purport . to be the laws of the state, and do not interfere when the circumstances are such that I can find it 'coasistellt with my duty to decline action, till the state courts have at least had an opportunity to act. In .& Parte RoyaU, 117 U. S. 241, 6 Sup. Ct. Rep. 734, the supreme court, while holding'that the circuit court had jurisdiction by writ of habeascorpm to take a prisoner out of the custody of the state courts at any stage of the proceeding, when alleged to be held in violation of the constitutionalld laws of the United States, and to summarily determine the case, further held, that where there were no special circumstances to influence its action, it had the discretion to decline to interfere till the state courts could try the cl1se, and even after trial and conviction, till an appeal or writ of error, where an appeal or writ of error lies,could be taken to the United States supreme court, and the con!'ititutionality of the law be there regularly determined in the ordinary course of judicial proceeding. ,·This decision gave to the circuit courts and judges, in such matters, a much wider discretion than I had before su pposed was vested in them. The petitioner in this case applied to me about a year ago for a writ of habeas CorpUB to discharge him from arrest the same ordinance now involved in this case. Acting upon the decision in Ex Parte Royall, I declined to issue tbewrit, not because I did not suppose it was otherwise a proper case for a writ, but because I saw no special circumstances in the oaseto require me to act at that time, and I therefore required him to go to the state courts for his remedy, and to punlUe it, as he .was entitled to do, by' the regular course of proceeding on writ of error to the United supreme court. The only difference to him would be in the channel through which he would reach. the .C9urtof last
,
, FEDERMLBEPORTER,voL
48.
resort. I was exceedingly averse to, unnecessarily, putting myself in antagonism to the courts, and especially the higher courts of the state, over whose action I had no appellate jurisdiction in the ordinary course of proceedings in the administration of the laws. He went to the state courts, and after something like a year's litigation, as the petition and record show, the ordinance now in question under which he was held was, by a divided court, declared to be valid not orily under the constitution and laws of the state, but also that it violati:ld no provision of the constitution or laws of the United States, and he wasreman,ded to custody. ,The record· further shows, that after this decision, the petitioner applied"to the chief justice of the supreme court of the state for the allpwance of a writ of error, but that the notwithstanding the fact that the decision was rendered by a divided court, refused to allow the writ, in consequence of which he was deprived of the right guarantied to him by the constitution Jaws' of the United States, to have the question as to whether the ordinailcedoes violate the constitution or laws of the United. States, the supreme court of the United States-the tribunal having the junsdiction to ultimately and authoritatively determine the constitutionality andvalidJty oftbe ordinanceih ·this The justice of-the supreme :eourt:allottell1 to :this circuit being absent in Europe, lae cannot apply to him for an allowance of the writ of error, and he is now utterly without remedy, unless it can. be had on ,this writ. Under these circumstances, I do not feel at liberty under the laws of the United,States, and under the decision iil Ex Parte RoyaU, to further decline toiSflue the writ, and, summarily, examine the case, even·t1;lough it devolves upon me in the exercise of this jurisdiction imperatively imposed upon.me,to review, and, however unpleasant it inay be tome, if the ordinanye is found to be. unconstitutional, overrule the decision of the highest, court of the state., . . The requires that every party selling liquors at retail shall pay for and take out a "license ,at a specified rate," and that, "after January 1, 1886, no license as a 'retail liquor dealer' *. *. *. shall be issued by the collector of licenses" unless the person desiring !fhesame shall have obtained the written consent of a majority of the board of police commissioners of the cityaild county of San Francisco, to carry on said business; buUn case of a refusal of such consent, upon apPlication, said board of police commissioners shall grant the same upon the, written recommendation of not less than twelve citizens of San lhancisco,:owning real estate in the block or square in which said business of' retaH liquor dealer' * * * is to be carried on." It further makes it amisdeqleanor t-o violate any of the provisions of the ordinance. It also appears in,the record, that the petitioner tendered amount of his license fee, and requested.the written consent of l" majority of the police commissioners to the issue thereof,., an,d it. was refused; that there were not 12 citizens 'of San Francisco owning real estate,j,n the block or'square iIi which he desired to carry on his: husillessas a liquor
BE CHRISTENSEN.
dealer, and that it was therefore impossible to obtain the assent of 12 such citizens, and that a lieense was consequently refused; that proceeding with his business long before established, he was again arrested for violation of said ordinance, and he is now in custody in pursuance of such arrest. I am, myself, after due consideration, unable to take the case out of the rule laid down in the second head-note to the decision in Yick WO V Hcrpkins, and Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, which reads: . ".A. municipal ordinance to regulate the carrying on of public laundries within the limits of the municipality, violates the provisions of the constitution of the United Stat,es, if it confers upon the municipal authorities arbitrary power, at their own will, and without regard to discretion in the legal sense of the term. to give ot withholdoonsent as to persons or places. witbout regard to the competency of the persons applying. or to the propriety of place selected, for the carrying on.ofthe business." 1
In commenting upon the view oithe supreme court of California, that theordinance then in questi(jn vested "in the board ofsupei'visors a not unusual discretion. in granting or their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case, in view of the protection of thE! public. against fire," the United States supreme court in that case, said, on page 366, . 118 U.:::l., and page 1069, 6 Sup. Ct. Rep.: . "We are not able to concur in that interpretation of the power conferred upon the supervisors. There IS nothing in the ordinance which points to such regulation of the business of keeping or conducting laundries. 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 ar.bit1"al'JI power to give or witl1hold consent, not only as to places but as to persons. * * * The power given to them is not confided to their discretion, in the legal sense of that term, but it is granted to their mere will. It js purely arbitrary, and acknowledges neither guidance nor restraint." The language quoted isjust as applicable to this ordinance as to that, -then under consideration. In that ordinance it was made unlawful for person or persons to establish, maintain or carryon a laundry within the corporate limits of the city and county of San Francisco, out having first obtained the consent of the board' of supervisors," etc., and in the ordinance in this case, it is made unlawful for any person to -carryon the business of a liquor dealer without a license which could only be obtained upon the "written consent of a majority of the board .of police commissioners," or in default of that, upon the" written recommendation of twelve having property in the block or square where the business is desired to be carried on. What difference is tbere in the provisions of the two ordinanGes, except that the consent in the laundry ordinance is to be by the board of supervisors themselves, while in the liquor .ordinance the power to. consent or is delegated by th,e board of !!upervisors ,to,: the police or to .of the block.. If «:llsupervisors coulQ confer upon,or re£\.\rveto thi!l unregulated p.rbitrary powf,lr, .not·
FEDERAL REPOBTERjvO};
43.
££ttr itiUpon,th'epGliee u:poir privatepartleshavfng'· \"hatever to the subJeet;mittter. ' ·j(i[nhthe'.6'ttseqfWoLee;ll Sawy'. 429,: 26·Foo. Rep. 471, this court differed frOltf the state supreme court upon the same point decided in Yick Wo v. HOJ?kins, and its reasons., for so doing at length, but in defetence to the decisions of the supreme' cOUrt of California, it yielded its own'convictions, and remanded thinking it more seemly that the question between ,the state and thenatiorral courts should be authoritatively settled by the United States supreme court, on appeal; thanw bring these'subordinate' Murfs' into antagonism. The result was, both cases went to the of the United States. 'quoted largely: from the of this court, and approved its views. ',' It. consequently reversed of the circuit court, al;ljt did()f 't,pe supreme court of California, which this court had followed. Yick Wo v. Hopkins, 118U. S. 856, 6 Rup. Ct. Rep. 1064. 'I:he of J,ustice .FIELD in the La:u71-dry Ordinance Case, 7 Sawy. 531, 13 Fed. 229, ill also point, and to the same effect. See in re Wo Lee, 11 Sawy-. 429,26 Fed. Rep. 471It is by counsel .for the city, aBwas attempted by the state sUpreme. tp liistinguish this case the Laundry Ordinance Case . Cited, on the ,ground, that the laundry bU,siness is a necessary business, ahd 'cannot 'be' wholly suppressed, but. only regulated, for the purposes of securing safety from fires; while selling li'luora is supposed to heinjuriotts 'to and maybe wholly prohibited or permitted upon conditions allIJiay be prescribed-that the power to absDIlecessar.ily includes the power to impose. any terms or conditions,however arbitrary, no matter what, less than absolute prohibition"and',oonsequently, 'tbat,the power to grant or refuse.a license may bedelega.'tedto theitrbittary and unregulated will of one or more 'd$t:Jlal unoffl,Cilll. I cannot as. at present advised, assent to . this proposition. This. ordinance does not limit or regulate, or purport tQ limit regulate the sale of liquors; Itwould seem to be upon its. other license ordinances:--:.atnere revenue measure. It does nof prohibit the'sale of liquors, or limit their sale to any particular portion of thecity,or to any 'number of persons, nor prescribe spy qualifications whatevel' which shall be necessary to entitle a party to a license, or prescri:beany conditions, or characteristics which shall constitute a disqualification;llnd debar: one from obtaining a license. It is not a m.atter of regulati'onat all. .It simply provides that no license shall issue to any party ''ilole$she obbiined the' written consent of a majority of police commissibners, :or of' 12 property holderS in the same block, Without indicaiitig any-conditions whatever upon which the assent may ol'<lught to ,be given, or withheld. It'lea\'es it to the absolute arbitrary;unregulatedi willofthepersonsuamed. . They can consent to grant a liicense to every ahd disreputable person in the City 1 and refuse to' tb' a licElt1se t6 every respectable person in the city; The ordinance petmitsand authorizessllch aetion'. It puts it in the absolute, arbitl'l1ry persoIlS,. to contrO'l the whole retailliq.uortraae I
these
I
,IN RE CHRISTENSEN.
,247
,the citY7with()l1t regard to quali£l.cations of the, parties Reeking ,R license, or to circumstances or conditions, or the interests of society. In Ply judgment" an ordinance that upon its face permits and authorizes cSuch discrimination and inequality of operation, is ,1:10 violation of the constitutlon of the United States. I admit the full powerof the state to prohibit, limit and c9ntrolthedomestic liquortrnffic, and to prescribe the qllalification,s and conditions applicable to all of those who are to be permitted to sell ,liquors, but this is a very different' proposition froIII thltt'rhich claims the authority to confer upon any on,e or more"persons in accordaij.,ce with their uncontrolled will,' to regulate , It is not unlawful to deal in liquors or sell liquors ;at,retail inCalifCj>mia,orSa:n Francisco, any more t}:1an it is to keep ,a 'laundry, w hich'pusiness also pays a license. The record shows that arebet,ve,en 3,000 and 4,000 liquor dealers in.8an Francisco. It is only made llnlawfm, to sellliqums when <:>btaili the written consent:of acettain number of men whose action in ,yielding or withholding consent is influenced py no qualifiqati(>Ds consideration other than ibeirown a.rbitrary will, governed perhaps by orpther.'lnworthy .And oftQe upon WhICh the laundry ordmance under conslderatlOIl" waS expressly .and directly held by the United f?tates supreme court to be uncQQstitutional. TQ,epolice powers are the powera whier c.ome into play iJ;l licensing and r,egulating of both occllpations., And m both tlley salllele.gll1 principles, and a simiu,.r equal and nniformapplication. ' ,,', " Under this ordinance the police commissioners for anything in its provisions to restrain them, might, consent to the license as retail liquor <lealers, of every immoral person in the city, while consent might be withheld from every Pel'son",ho is respectable and suitable for the business. If they do not do this, it is not because they are restrained by .any provisions" of this ordinance. These provisions permit it. In the Case of the Laundry Ordinance cited, it appeared it if! true, tQltt the, drdlnance were in fact made, in ,its administration. ',' These arrests for such gross discriminations, were-doubtless illegal 'on that ground also. But the discr,iminations in fact made, cannot affel}t the validity of the ordinance itself. The ordinance was declared void because it permitted a discrimination, not merely because was in fact made available in practice. 'Th.e of an ord41ancemust be determined by its terms, by whllt it n{)tby tbe m!1l}ner of.its'6xecution. It is valid or invalid irrespective of the manner in which it is, in fact, administered. Its capability of being abused is the test. In the case of the ordinance now in question no evidence was intra<luced as to the way in which it has been, in fact, administered. The <:asewl¥! al'gued; submitt!ld,and tht:l'char!1cter, terms and J;Jrovisions of; itself. ' ,.;, , ',But ,the of ,its adm,inistration would be jrrelevant tQ the point
:or
js. IYJ W
FEDERAL REPORTER,
voL 43.
it appears upon itsfacej and riot whether it has been honestly or dishonestly admiaistered. The fact that it permits arbitrary discriminations, and abuses in its execution,' depending upon no conditions, or qUalifications whatever, other than the unregulated arbitrary will of .. certain designated persons, is the touchstone by which its validity is to be tested. That there are likely to be abuses as in the case of the laundryol'diriance, both as to individuals and classes, there is no reason to doubt,'when an outburst of popular prejudice shall demand or countenanceit';and it is also liable to be abused from more unworthy motives, considerations and influences. The ordinance should prescribe some conditions, qualifications or disqmJifications, by which those who are to issue licenses are to be guided in their action, other than their own unregulated arbitrary wills. . After careful consideration, I am unable to take this ordinance out of the rule laid down in. the second headnote in Yick Wo v. Hopkins and Wo Lee v. Hopkins, 118 U. S.356, 6 Sup. Ct. Rep. 1064. As that decision is cOntrolling so fal' as this court is concerned, I am bound to dis-charge 'the petitioner, however willing Itnight otherwise be to yield my individual views to the judgment of the supreme court of the state. Let the petitioner be discharged. Shduld'the city desire to appeal to the supreme ODurt of the United appeal will begllidly granted. The question has reached such a state; that it is of the ,utmost importance that it be authoritatively decided; Until so decided the foregoing views will control 'the action of this court. '&8
" WITNBIS__
UNITED STATES ". HOLLIS.
Court, W. D. South Carolina. August 18, 1800.) LA.W. . . . 20 U; S; St. at 'Large, 80, which provides that a defendant charged with crime shall, at .hil own request, but not otherwise, be a competent Witness, does not render competent a defendant who, by previoul convioUon ot an infamous crime, baa 10lt the'prlvUege of testifying.
At Law. The defendant being on trial for nolating section 5392, Rev. St., (peJjury,):wascalled as a witness in his own behalf. The district :attorney objected, producing the reoord of his conviction for an infamous crime, making him incompetent. A. Lo.throp, U. S. Dist. Atty'. A. Blythe, for defendant. SnlON'tON, J. The act of 16th of March. 1878, (20 St. at Large', 30,) prondes that a defendant charged with crime shall, at his own request, J:>btbot otherwise, be a competent witnessj that is to say, he not .labor .under' disability because. he is· a party in· interest, and t ·no{;.