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expected to prove; but it does not show what that statement was, nor what were the facts which the plaintiff relied on and expected to prove. In this respect the case differs from that of Oscanyan v. Arms Co. 103 U.S. 261, where it was held to be entirely proper for the trial court to direct a verdict for the defendant upon the opening statement of counsel for the plaintiff, when, as in that case, such statement is full, exact, and explicit. "Of course,” said the court in that case, “in all such proceedings nothing should be taken, without full consideration, against the party making the statement or admission. He should be allowed to explain and qualify it so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare, and give such direction as will dispose of the action.” The practice under that rule is not objectionable. On the contrary, it is convenient to court and parties, and not only saves time and expense in shortening trials, but has the merit of presenting the whole case in a condensed and precise form for the consideration of a court of review.

In the present case, the fact that a statement was made of the plaintiff's case, without disclosing in the bill of exceptions the facts supposed to constitute it, is referred to for the purpose of showing that the court below did not act upon that statement, and that it is not open to this court to conjecture what it was. The legal inference only is that it was any case which he was at liberty to prove under bis complaint and the issues framed upon it. What the circuit court did was to refuse to hear evidence, not on the ground that the opening statement of the counsel disclosed no right of action, but because it was of opinion that the act of congress was a bar to any recovery on any of the alleged causes of action set forth in the complaint;" that is, that, in view of the act of congress, the complaint was substantially defective in not stating a cause of action, so that it would be bad on general demurrer; and thereupon judgment was rendered for the defendant on the pleadings alone.

The complaint, upon examination, shows the allegation of an indebtedness from the defendant to the plaintiff, for money unlawfully demanded, exacted, and received by the defendant under color of law, and paid by the plaintiff in ignorance of its rights, in consequence of representations made by the de fendant, and under protest; and this indebtedness is alleged as the consideration of an implied promise to repay the same. This statement, it is quito crue, is general and vague. It does not allege with particularity the laws inder color of which the exactions were made, nor the circumstances attenů. ing the payment. But it is sufficient; for an actual indebtedness is alleged, and there is nothing in the complaint to contradict the fact, or to demonstrate its impossibility as matter of law. And, although the complaint states that the money was exacted “under color of certain laws in the state of New York concerning passengers in vessels coming to the state of New York, and concerning the powers and duties of commissioners of emigration, and for the regulation of marine hospitals,” this does not necessarily identify the moneys alleged to have been thus exacted and paid with the “head-moneys,” the collection of which it was the professed object of the act of congress to legalize. If it be said that it is matter of judicial cognizance that there were in New York at the time no other laws, under color of which such exactions and payments could have been made,—which we do not admit,-nevertheless, it re mains that, consistently with the allegations of the complaint, the moneys paid may have been illegally exacted in violation of the laws, under color of which, it is alleged, their payment was demanded and made. And the allegation in the answer, that the moneys sued for are, in fact, the “head-moneys" which the act of congress prohibits the recovery of, does not cure the difficulty, for that may have been the very issue to be tried. Taking the com. plaint to be true, which is what we are bound to do in the present state of the record, the indebtedness alleged to exist must be admitted to exist in fact if it is possible to exist in law; and this we may affirm, even though the act of congress pleaded and adjudged to be a bar, be a valid law; for it is not apparent on the record that the money sued for was “head-money,” nor that it was exacted and paid in accordance with the laws of the state. It will certainly not be denied that, if the moneys sued for were exacted and paid in violation of the laws of New York, under color of which, it is said, they were demanded, and the exaction and payment were made under circumstances authorizing a recovery under the laws of that state, or of the common law in force there, it was not the intention of congress to interpose a bar to the suit. It is impossible for us, on this record, to say that this is not such a case.

If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to bound judgment. It is the dictate of wisdom to follow them closely and carefully.

In the present case, the main and ultimate question is whether the defendant is legally liable to repay the moneys sued for, and, as incidental to that, whether the act of congress pleaded as a bar to the action is valid. The solution of these questions depends upon facts not apparent upon the present record. That these may be made to appear there must be a new trial. For these reasons the judgment of the circuit court is reversed, and the cause remanded, with directions to award a new trial; and it is so ordered.

THAYER and another v. LIFE ASSOCIATION OF AMERICA and others.

(January 5, 1885.) REMOVAL OF CAUSE-AVERMENT of Citizenship-TRUSTEE INDISPENSABLE PARTY.

Two citizens of West Virginia conveyed to a trustee certain real property in that state, t, secure the payment of notes executed by them to a Missouri corporation, which was subsequently dissolved, and its assets placed in the hands of a citizen of the latter state. Upon default in the payment of the notes, the trustee, under authority given by the deed, advertised the property for sale. The grantors thereupon instituted a suit in equity in one of the courts of West Virginia to enjoin the sale, making the trustee, the Missouri corporation, and the person who held its assets, defendants. Upon the joint petition of that corporation and the defendant holding its assets, the cause was removed to the circuit court of the United States, and was there finally determined. Held, that since the trustee was an indispensable party, his citizenship was material in determining the jurisdiction of the circuit court; and as that was not averred, and did not otherwise affirmatively appear to be such as gave the right of removal, the decree must be reversed, and the cause remanded to the state court. Appeal from the Circuit Court of the United States for the District of West Virginia.

J. H. Gordon and C.C. Cole, for appellants. R. G. Barr, for appellees.

HARLAN, J. By a duly-recorded deed of August 22, 1872, Otis A. Thayer and William T. Thayer conveyed to Edward B. Knight certain real estate in Kanawha county, state of West Virginia, in trust, to secure the payment of several notes executed by the grantors to the Life Association of America, a

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corporation created and organized under the laws of the state of Missouri. The deed was upon the condition that if the notes were paid at maturity, and the covenants therein contained were kept and performed, the property should he released; but if the notes, or any of them, were not paid as stipulated, or if said covenants were not fully kept, then the deed should remain in full force, with the right in the trustee to take immediate possession of the property; that after such default the grantors and their heirs and assigns should hold the premises conveyed as tenants only of the trustee from month to month, and the latter might proceed to sell the property at public auction to the highest bidder, on the terms and conditions prescribed by the laws of the state, first giving 20-days' notice of the*time, terms, place of sale, and the property to be sold, by advertisement in some newspaper; upon such sale to execute and deliver a deed in fee-simple of the property sold; receive the proceeds of sale, out of which shall be paid, first, the cost and expenses of the trust; next, all amounts expended as aforesaid for taxes and other purposes, with interest, as above mentioned; and then, the amount that may remain unpaid on the notes. The deed also provided that any failure to pay the notes at their respective maturities, or to keep its covenants, should cause all of the notes to become and be considered due and payable, for the purpose of the trust, at the time of such default. Knight, the trustee, under the authority given by the deed, having advertised the property for sale on the twenty-fifth of April thereafter at public auction to the highest bidder, for the purpose of satisfying the debt secured by it to the Life Association of America, this suit was commenced in the circuit court of Kanawha county, West Virginia, by the grantors in the deed of trust, against the Life Association of America, William S. Relfe, superintendent of the department of insurance of the state of Missouri, and Edward B. Knight, trustee. The bill shows that by a decree of the circuit court for the county of St. Louis, Missouri, the Life Association of America was dissolved, and its assets placed in the hands of the defendant Relfe, as superintendent of the insurance department of that state. It sets out the consideration of the before-mentioned notes, the execution of the deed of trust, and the proposed sale of the property, by the trustee, at the instance of Relfe. The complainants contend, upon grounds which need not be here stated, that the trust debt is paid, and that there is a balance due them of $91.63. Claiming that the sale of the trust property would be unjust and inequitable, they ask that the trustee be enjoined from selling it; also, that the trust debt be decreed to be extinguished.

A temporary injunction against the sale was issued. In due time the defendants the Life Association and Relfe appeared and filed their joint petition und bond for the removal of the cause into the circuit court of the United States. The*petition avers that at that time, as well as at the commencement of the action, the complainants were citizens of West Virginia, while the Life Association of America and Relfe were citizens of Missouri. There is no allegation of the citizenship of Knight, the trustee. He is alleged, in the petition for removal, to have no interest in the suit, and to be a nominal party only. The right of removal was recognized by the state court. Subsequently, in the circuit court of the United States, a demurrer to the bill was sustained; and, no amendment having been made, the suit was dismissed.

The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust. The relief asked could not have been granted without his being before the court. There was no separable controversy between the complainants and the other defendants, touching the sale of the property, which could have been determined between them without the presence of the trustee. He was therefore, an indispensable party defendant. Whether he had the right and was under a duty to sell the property was the controversy

which all the

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parties to the suit were interested. His citizenship, therefore, is material in determining whether the suit was one of which the circuit court could take cognizance. The record discloses nothing upon that point. He may be—and we infer from the recitals of the deed of trust that he is a citizen of the same state with the complainants. If such be the fact, the cause was not one that could be removed. As the trustee and the complainants are on opposite sides of the real controversy in relation to the sale of the property, and since it does not appear, affirmatively, that the circuit court had jurisdica tion, by reason of the citizenship of the parties, the decree must be reversed, with directions—unless such jurisdiction, upon the return of the cause, shall be made to appear—to remand the suit to the state court. Coal Co. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 Wall. 36; Ribon v. Railroad Co. 16 Wall. 446; Knapp v. Railroad, 20 Wall. 117; Grace v. American Ins. Co. 109 U. S. 278; S. C. 3 SUP. Cr. REP. 207; Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 381, 382; S. C. 4 SUP. CT. REP. 510; American Bible Soc. v. Price, 110 U.S. 61; S. C. 3 SUP. CT. REP. 140; Barney v. Latham, 103 U. S. 205; Blake v. McKim, Id. 336.

It is so ordered.

(113 U. S. 27)

BARBIER 0. CONNOLLY.

(October Term, 1884.) 1. SUPREME COURT-CONSTITUTIONS OF THE SEVERAL STATES-JURISDICTION.

The supreme court cannot pass upon the conformity of a law with the require

ments of the constitution of the state in which it was enacted. 2. CONSTITUTIONAL LAW-Class LEGISLATION - FOURTEENTH AMENDMENT—EXTENT OF

Its APPLICATION.

Class legislation, discriminating against some and favoring others, is prohibited by the fourteenth amendment to the constitution of the United States; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is

not within the amendment. 3. SAME-POLICE POWER OF A State.

Neither the fourteenth amendment nor any other amendment to the constitution of the United States was designed to interfere with the power of a state, sometimes termed its police power, to prescribe regulations to promote the health, peace, mor. als, education, or good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. In Error to the Superior Court of the City and County of San Francisco, State of California.

On the eighth of April, 1884, the board of supervisors of the city and county of San Francisco, the legislative authority of that municipality, passed an ordinance reciting that the indiscriminate establishment of public laundries and wash-houses, where clothes and other articles were cleansed for hire, endangered the public health and the public safety, prejudiced the well-being and comfort of the community, and depreciated the value of property in their neighborhood; and then ordaining, pursuant to authority alleged to be vested in the board under provisions of the state constitution, and of the act of April 19, 1856, consolidating the government of the city and county, that after its passage it should be unlawful for any person to establish, maintain, or carry on the business of a public laundry or of a public wash-house within certain designated limits of the city and county without first having obtained a cer. tificate, signed by the health officer of the municipality, that the premises were properly and sufficiently drained, and that all proper arrangements were made to carry on the business without injury to the sanitary condition of the neighborhood; also a certificate, signed by the board of fire-wardens of the municipality, that the stoves, washing and drying apparatus, and the appliance for heating smoothing-irons were in good condition, and that their use

was not dangerous to the*surrounding property from fire, and that all proper precautions were taken to comply with the provisions of the ordinance defin. ing the fire limits of the city and county, and making regulations concerning the erection and use of buildings therein.

The ordinance requires the health officer and board of fire-wardens, upon application of any one to open or conduct the business of a public laundry, to inspect the premises in which it is proposed to carry on the business, in order to ascertain whether they are provided with proper drainage and sanitary appliances, and whether the provisions of the fire ordinance have been complied with; and, if found satisfactory in all respects, to issue to the applicant the required certificates without charge for the services rendered. Its fourth section declares that no person owning or employed in a public laundry or a public wash-house, within the prescribed limits, shall wash or iron clothes between the hours of 10 in the evening and 6 in the morning, or upon any portion of Sunday; and its fifth section, that no person engaged in the laundry business within those limits shall permit any one suffering from an infectious or contagious disease to lodge, sleep, or remain upon the premises. The violation of any of these several provisions is declared to be a misdemeanor, and penalties are prescribed differing in degree according to the nature of the offense. The establishing, maintaining, or carrying on the business, without obtaining the certificates, is punishable by a fine of not more than $1,000, or by imprisonment of not more than six months, or by both. Carrying on the business outside of the hours prescribed, or permitting per sons with contagious diseases on the premises, is punishable by a fine of not less than $5 or more than $50, or by imprisonment of not more than one month, or by both such fine and imprisonment.

The petitioner in the court below, the plaintiff in error here, was convicted in the police judge's court of the city and county of San Francisco, under the fourth section of the ordinance, of washing and ironing clothes in a public laundry, within the prescribed limits, between the hours of 10 o'clock in the evening of May 1, 1884, and 6 o'clock in the morning of the following day, and was sentenced to imprisonment in*the county jail for five days, and was accordingly committed, in execution of the sentence, to the custody of the sheriff of the city and county, who was keeper of the county jail. That court had jurisdiction to try him for the alleged offense if the ordinance was valid and binding. But alleging that his arrest and imprisonment were illegal, he obtained from the superior court of the city and county a writ of habeas corpus, in obedience to which his body was brought before the court by the sheriff, who returned that he was held under the commitment of the police judge upon a conviction of a misdemeanor, the commitment and sentence being produced. The petitioner thereupon moved for his discharge on the ground that the fourth section of the ordinance violates the fourteenth amendment to the constitution of the United States, and certain sections of the constitution of the state. The particulars stated in which such alleged violation consists were substantially these, -omitting the repetition of the same position: That the section discriminates between the class of laborers engaged in the laundry business and those engaged in other kinds of business; that it discriminates between laborers beyond the designated limits and those within them; that it deprives the petitioner of the right to labor, and, as a necessary consequence, of the right to acquire property; that it is not within the power of the board of supervisors of the city and county of San Francisco; and that it is unreasonable in its requirements. The superior court overruled the positions and dismissed the writ, and the petitioner brought this writ of error.

A. C. Searle, for plaintiff in error. H. G. Sieberst, for defendant in error

FIELD, J. In this case we can only consider whether the fourth section of the ordinance of the city and county of San Francisco is in*conflict with the constitution or laws of the United States. We cannot pass upon the con

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