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We come now to inquire if the testimony sought to be obtained from petitioner by this mode comes within the exception referred to in section 861. These exceptions relate to cases where it is admissible to take depositions de bene esse, under section 863, or in perpetuam rei memoriam and under a dedimus potestatuin under section 866. In the first of these, the circumstances which authorize depositions to be taken in advance for use on the trial are mentioned with great particularity. They all have relation to con. ditions of the witness; to residence more than a hundred miles from the court, or bound on a sea voyage, or as going out of the United States or out of the district, or more than a hundred miles from the place of trial before the time, of trial, or an ancient or infirm witness. None of these things are suggested in regard to petitioner, nor were they thought of as a foundation of the order: of the state court or of the circuit court. The statute of New York, under which both courts acted, makes no such requirements as a condition to the examination of the party. It is a right which, if the judge may possibly refuse to grant, he is in that matter governed by none of the conditions on which the deposition may be taken under the act of congress. Nor does the case come within the principle or profess to be grounded on the power conferred by section 866, which is another exception to the rulo established by section 861. It is not according to common usage to call a party in advance of the trial at law and subject him to all the skill of opposing counsel to extract something which he may then use or not, as it suits his purpose. This is a very special usage, dependent wholly upon the New York statute. Nor is it in any manner made to appear that this examination “was necessary in order to prevent a delay or failure of justice in any of the courts of the United States," nor is any such proposition the foundation of the court's action.
These are the exceptions which the statute provides to its positive rule that the mode of trial in actions at law shall be by oral testimony and examination of witnesses in open court. They are the only exceptions thereinafter provided. Does the rule admit of others? Can its language be so construed? On the contrary, its purpose is clear to provide a mode of proof in trials at law to the exclusion of all other modes of proof; and because the rigidity of the rule may, in some cases, work a hardship, it makes exceptions of such cases as it recognizes to be entitled to another rule, and it provides that rule for those cases. Under one or the other all cases must come. Every action at law in a court of the United States must be governed by the rule, or by the exceptions which the statute provides. There is no place for exceptions made by state statutes. The court is not at liberty to adopt them, or to require a party to conform to them. It has no power to subject a party to such an examination as this. Not only is no such power conferred, buto it is prohibited by the plain language and the equally plain purpose of them! acts of congress, and especially the chapter on Evidence of the Revision. The New York statute would, if in force, repeal or supersede the act of congress. It does not require much deliberation to see that if the acts of congress forbid the use of this kind of testimony in the courts of the United States, no order for taking it made in the state court while the case was pending in that court, with a view to its use on a trial there, can change the law of evidence in the federal court. Without deciding now, for the question is not before us, whether the testimony actually given under that order and transmitted with the record of the case to the circuit court can be used when the trial takes place, we are well satisfied that the latter court cannot enforce the unexecuted order of the state court to procure evidence which, by the act of congress, is forbidden to be introduced on the trial, if it should be so taken.
The provision of section 4 of the act of March 3, 1875, (18 St. 470,) declares orders of the state court, in a case afterwards removed, to be in force until dissolved or modified by the circuit court. This fully recognizes the power
of the latter court over such orders. And it was not intended to enact that an order made in the state court, which affected or might affect the mode of trial yet to be had, could change or modify the express directions of an act of congress on that subject. Nor does the language of the court in Duncan v. Geyan, 101 U. S. 810, go so far. When it is there said that “the circuit court has no more power over what was done before the removal than the state court would have had if the suit had remained,” it is in effect affirmed that it has, at least, that much power. There can be no doubt that, on a proper showing before the state court, it could have discharged the order for this examination, or suspended its further execution. In acting on such a motion as this it would have been governed by the laws of the state of New York. In deciding whether it would continue the execution of this order, or decline to execute it further, the circuit court was governed by the federal law. If the law governing the circuit court gave it no power to make or continue this examination, but, in fact, forbid it, then it could not enforce the order. * The petitioner having removed his case into the circuit court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was reinoved; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed. This precise point is decided, and in regard to this very question of the differing rules of evidence prevailing in the state and federal courts, in King v. Worthington, 104 U. S. 44. In that case, after it had been once heard on appeal in the supreme court of Illinois, it was removed into the circuit court of the United States. The supreme court had reversed the judgment of the inferior court, because, among other things, the evidence of witnesses had been received whom that court held to be incompetent. On the trial in the circuit court they were held to be competent and admitted to testify, notwithstanding the decision of the supreme court of the state, on the ground that section 858 of the Revised Statutes of the United States, already copied in this opinion, made them competent, and although it differed in that respect from the statute of Illinois on the same subject, it must prevail in the circuit court. It was strongly urged here that this was error, and as to that case the decision of the Illinois court, made while it was rightfully before it, should control. But this court held otherwise, and said: “The federal court was bound to deal with the case according to the rules of practice and evidence prescribed by the acts of congress. If the case is properly removed, the party removing it is entitled to any advantage which the practice and jurisprudence of the federal courts give him.” The circuit court was therefore without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order fining him for contempt and committing him to the custody of the marshal was without jurisdiction and void, and the pris. oner is entitled to his release. It is supposed that the announcement of the judgment of the court that he is entitled to the writ will render its issue unnecessary. If it shall prove otherwise, the writ will be issued on application to the clerk.
(113 U. S. 703)
(March 16, 1885.) 1. CITY ORDINANCE — NECESSITY THEREFOR—WHO TO JUDGE-FEDERAL COURTS—WAEN THEY MAY INTERFERE.
The municipal authorities of San Francisco are the appropriate judges of the necessity of the ordinance of the city, approved June 23, 1883, for the purpose designated therein. Their regulations in the matter are not subject to interference by the federal tribunals, unless they are made the occasion for invading the sub stantial rights of individuals.
2. SAME-Specific REGULATIONS AS TO A BUSINESS.
The specific regulations for one kind of business, which may be necessary for the protection the public, can never be the just ground of complaint because like
restrictions are not in posed upon other business of a different kind. 3. SAME-BRANCHES OF A BUSINESS-RESTRICTIONS AS TO ONE BRANCH.
It is not discriminating legislation that branches of the same business, from which danger is apprehended, are prohibited during certain hours of the night,
while other branches, involving no such danger, are permitted. 4. SAME-MOTIVES OF LEGISLATORS-PRESUMPTIONS-INVESTIGATION BY COURTS.
Courts cannot inquire into the motives of the legislators in passing enactments, except as they may be disclosed upon the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as to the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. In Error to the Circuit Court of the United States for the District of California.
The petitioner in the court below, the plaintiff in error here, was arrested by the defendant, who is chief of police of the city and county of San Fran. cisco, for an alleged violation of an ordinance of the board of supervisors of that municipality, approved on the eighteenth of June, 1883; and while in custody of the officer applied to the circuit court of the United States for a writ of habeas corpus, in order to obtain his discharge. The circuit court refused to issue the writ; the judges of the court being divided in opinion, and that of the presiding judge controlling.
The ordinance was adopted to regulate the establishment and maintenance of public laundries and wash-houses within certain limits of the city and county of San Francisco. It recited that the indiscriminato establishment of such laundries and wash-houses, where clothes and other articles were cleansed for hire, endangered the public health and public safety, prejudiced the wellbeing and comfort of the community, and depreciated the value of property in their neighborhood. It then ordained, pursuant to the authority vested in the board, that after its passage it should be unlawful for any person to establish, maintain, or carry on the business of a public laundry or a public wasb-house within certain designated limits of the city and county, without having first obtained a certificate of 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; and also a certificate of the board of firewardens of the municipality that the stoves, washing and drying apparatus, and the appliances for heating smoothing-irons were in good condition, and that their use was not dangerous to surrounding property from fire, and that all proper precautions were taken to comply with the provisions of the ordi-, nance defining 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 the board of wardens, upon the application of any one desirous 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 declares 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 provisions is declared to be a misdemeanor, and
penalties are prescribed according to the nature of the offense. The establishing, maintaining, or carrying on the business without obtaining the certificate 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 persons 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 impris. onment.
The petitioner was arrested by the chief of police upon a warrant of a police judge of the municipality, issued upon a complaint under oath, that the petitioner had washed and ironed clothes in a public laundry within the prescribed limits between the hours of 10 o'clock in the evening of the twentyfifth of February, 1884, and 6 o'clock in the morning of the following day, thereby violating the provisions of section 4 of the ordinance. The petition for the writ of habeas corpus presented to the judges of the circuit court sets forth the arrest and detention of the petitioner by the chief of police, the ordinance under which the arrest was made, the complaint before the police judge, and the issue of the warrant under which he was taken into custody. It then proceeds to state that the petitioner has for several years been engaged in working for hire in a public laundry in the city and county of San Francisco, and has, in all respects, complied with the laws of the United States and of California, and the ordinances of the city and county, except in washing at the hours mentioned; that the business of carrying on a laundry is a lawful one, in which a large number of the subjects of the emperor of China have been and are engaged in the said city and county within the limits prescribed by the ordinance; that there have been for several years great antipathy and hatred on the part of the residents of that city and county against the subjects of China residing and doing business there; that such antipathy and hatred have manifested themselves in various ways and under various forms for the purpose of compelling the subjects of China to quit and abandon their business and residence in the city and county and stite; that owing to that feeling, and not otherwise, and not for any sanitary, police, or other legitimate purpose, but in order to force those subjects engaged in carrying on the business of a laundry in the city and county of San Francisco to abandon the exercise of their lawful vocation, and their only means of livelihood, the supervisors passed the ordinance in question; that the petitioner has been and is earning his living exclusively by working at washing and ironing for hire, and in order to gain a livelihood is obliged to work late in the night, and has no other lawful vocation; that on the first of January, 1884, his employer paid the license collector of the city and county six dollars, the amount required by the ordinance to obtain a license to carry on the business of a laundry, and obtained from him a license to carry on the business at a designated place within the prescribed limits. The petition also avers that section 4 of the ordinance is in contravention of the provisions of the Burlingame treaty, and of the fourteenth amendment to the constitution of the United States, in that it deprives them of the equal protection of the laws.
On the hearing of the application for the writ certain questions arose upon which the judges of the circuit court were divided in opinion. They are as follows: (1) Whether section 4 of the ordinance mentioned is void on the ground that it is not within the police power of the board of supervisors of the city and county of San Francisco. (2) Whether said section is void on the ground that it discriminates between those engaged in the laundry business and those engaged in other classes of business. (3) Whether said section is void on the ground that it discriminates between the different classes of persons engaged in the laundry business. (4) Whether said section is void on the ground that it deprives a man of the right to labor at all times. (5)
Whether said section is void on the ground that it is unreasonable in its ro quirements, in restraint of trade, or upon any other ground apparent upon the face of the ordinance, or appearing in the petition. The opinion of the presiding judge being that the said section was valid and constitutional, the application for the writ was denied; and the judgment entered upon the denial is brought to this court for review.
David McClure and Thos. D. Riordan, for plaintiff in error. H. G. Sieberts, for defendant in error.
FIELD, J. The ordinance of the board of supervisors of the city and county of San Francisco, the legislative authority of that municipality, approved on the twenty-fifth of June, 1883, is similar in its main features to the ordinance under consideration at this term in Barbier v. Connolly, 113 U. S. 27; S. C. ante, 357. It differs in the designation of the limits of the district of the city and county within which its provisions are to be enforced, but not otherwise in any essential particular. The fourth section is identical in both. • The prohibition against labor on Sunday in this section is not in a volved here, as it was not in that case; and the provision for the cessation of labor in the laundries within certain prescribed limits of the city and county during certain hours of the night is purely a police regulation, which is, as we there said, within the competency of any municipality possessed of the ordinary powers belonging to such bodies. Besides, the constitution of California declares that “any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” Article 11, § 11. And it is of the utmost consequence in a city subject, as San Francisco is, the greater part of the year to high winds, and composed principally within the limits designated of wooden buildings, that regulations of a strict character should be adopted to prevent the possibility of fires. That occupations in which continuous fires are necessary should cease at certain hours of the night would seem to be under such circumstances a reasonable regulation as a measure of precaution. At any rate, of its necessity for the purpose designated the municipal authorities are the appropriate judges. Their regulations in this matter are not subject to any interference by the federal tribunals unless they are made the occasion for invading the substantial rights of persons, and no such invasion is caused by the regulation in question. As we said in Barbier v Connolly, “the same municipal authority which directs the cessation of labor must necessarily prescribe the limits within which it shall be enforced, as it does the limits in a city within which wooden buildings cannot be constructed." No invidious discrimination is made against any one by the measures adopted. All persons engaged in the same business within the prescribed limits are treated alike and subjected to similar restrictions.
There is no force in the objection that an unwarrantable discrimination is made against persons engaged in the laundry business, because persons in other kinds of business are not required to cease from their labors during the same hours at night. There may be no risks attending the business of others; certainly not as great as wbere fires are constantly required to carry them on. The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws.
But counsel in the court below not only objected to the fourth section of the ordinance as discriminating between those engaged in the laundry business and those engaged in other business, but also as discriminating between