Adm'r, etc., v.
(Oircuz't Oourt, No
October Term, 1886.)
COURTS-UNITED STATES CIRCUIT COURT-JUDGMENT-POWER TO SET .ASIDE AT SUBSEQUENT TERM.
The United States circuit court has no power, at a subsequent term, to set aside 8. judgment, in due form, unconditionally entered at a former term, and which lias become a final judgment,
At Law. Motion for a rehearing refused and dismissed. Judge Cadwell, Hoyt ct Munsell, and A. M. Cox, for plaintiff. , H. D. Gottlder and Estep, Dickey ctBquire, for defendants.
WELKER, J. 'The action was one for a personal injury, and case was tried to a jury at the April term, 1886, and a verdict for the plaintiff for $8,250. A motion was filed at said term for a new trial, and was heard by the court, and overruled, and judgment entered upon the verdict, and execution issued upon the judgment.. During said term, on the seventh day of September, 1886, a motion was filed by the defendant asking for a re\)earing and reargument of the motion for a new trial, and stating that motion for a new trial should have been granted, which motion was not heard or disposed of at said term, and at its close a general order was entered "that all the cases on the docket of this court not otherwise disposed of he continued until the next term of this court." The defendant at this (October) term asks that said motion be reheard, and that the motion for new trial so overruled at the April term be now heard, and said judgment be set, aside, and a new trial ordered. Tbis raises the question whether the court, after the term at which a judgment is rendered, has power to set it aside at such subsequent term in this summary way. The motion filed at last term for a rehearing, and which, by the general order, may be continued to this term, was one not known in proceedings at law. It amonnted to the',l>ame as an oral motionJor a rehearing at the term, and nothing more. If such rehearing was not had at the term, and judgment set aside, it could not in any way affect the judgment so entered, or in any manner suspend it. It bas been clearly settled that the court has no power, at a subsequent term, to set aside a judgment, in due form, unconditionally entered at a forUler term, and Although the court may, at which had become a final this term, rehear the Illotion for new trial, still on .such rehearing, without power to set aside the judgment, such rehearing would'avail nothing to the defendant. The motion for a rehearing is therefore ' refused and dismissed.
IN RE AH JOW.
In re AH Jow.
«(Jireuit Oourt, D. Oalifornia. August 28,1888.)
CONSTITUTIONAL LAW-FoURTEENTH AMENDMENT-"DUE PROCESS OIl'LAW· -ORDINANCE OF CITY OF MODESTO FORBIDDING VISITING PLAcE WHERlIl OPIUM IS SOLD.
Section 2 of ordinance No.4 of the city of Modesto, California, providing that" every person who, in the city of Modesto, keeps or maintains any room or other place where opium, or any of its preparations. is sold or given away, and e1JeryperRon who resortB to, frequentB, or visit8 8'Ueh room or place, is guilty ,01 a misdemeanor: provided, that this section shall not apply to the sale or gift of any of the preparation Ii of opium by any druggist for any ailment not caused by the use of opium or \:my of its preparations," makes it criminal for one to VIsit such aplaee, no matter how innocently or how lawful his purpose. It. is"inconsietent'with the law of the land, and is void. Committing one to prison for the offense created, therefore violates the fourteenth amendment of the United States constitution by restraining one of his liberty without due process of law. Since the ordinance violates an amendment of the United States constitution, a person'imprisoned under it will be released by a United States court on habeas corpus. .
COURTS-.luRISDICTION-FEDERAL COURTS-CASE UNDER CONSTITUTION OIl' THE UNITED STATES-HABEAS CORPUS.
On IIabeas Corpus. W. E. Turner, for petitioner. B. C. Minor; for respondents. Before SAWYER, J.
SAWYER, J. The return to the writ shows that petitioner is in custody in pursuance of a judgment upon a conviction upon a complaint charging him with a public offense, to-wit: "Visiting a room kept, in the city of Modesto, by another, where opium was sold.'" The offense for which the petitioner was convicted, and committed as a punishment, is created by section 2 of ordinance No.4 of the city of Modesto, which reads as follows: "Sec. 2. Every person who, in the city of Modesto, opens, keeps', or maintains any room or other place where opium, or any of its preparations, is sold or given away, and every person who resorts to,f1'equents, 01' visits such room 01' place. is guilty of a misdemeanor.. provided, that this section shall not apply to the sale or gift of any of the preparations of opium by any druggist, for any lLihnent not caused by the use of opium, or any of its preparations." This language is extremely comprehensive,and embraces every possible case of yisiting "such room or place;" no matter whether for a proper and lawful or improper and unlawful purpose; whether the party has knowledge or is ignorant of the character of the "room or place;" whether he visits ,it innocently or otherwise. Neither knowl· edge, nor purpose of the visit, is made an. element of, the offense.. The mere fact of going there, without anyo.therelement, is made an, That the provision was deliberately intended to be thus sweeping is evident from tlJ,e that provis-
ion in the preceding visits to · · any such room or place, for any such purpdS6, is guilty of a misdemeanor," embraces the purpose, and, necesf\l\rily, knowledge ,of the charactel of the place, as elements of the offense, and there would be no occasion for s,6ction 2, if its provisions ,are not intended to embrace those cases which do not include knowledge and purpose as elements of the offense. These places, in view of the ordinanQe making the keeping of "such room or place" an offense, would be likely to be kept for the purpose know nothing about it; especially if secretly, and the general "the,room or place" be an ordinary drug-store, constantly resorted to for the purchase of other drugs. Under this section it would not be lawful for any person, whether Caucasian citizen, or other inhabitant, to enter such a place or drug-store for many of the ordinary and proper purposes of life; as to purchase other goods, to collect bills, Or transact any legitimate business., To lawfully prohibit, under penalties, the citizens or inhabitants from entering such a place, inor for any lawful purpose, and nocently, not knowing its without reference to its object, is, in my judgment, entirely beyond the power of the city of Modesto. It is to prohibit an act which is innocent in itself, and lawful under the general laws of the land, and therefore inconsistent with the laws of the land. It is to put all unlawful inhibition upon the inalienable rights and liberties of the citizen; and to commit him to prison for doing so is to restrain him of his liberty without due process of law, in violation of the fourteenth amendment to the national constitution. Yick Wo v. Hopkins, 6 Sup. Ct. Rep. 1070, 1071. ,As purpose and knowledge of character of the place are not made elements of the offense, they cannot be considered, and it cannot, be presumed that the petitioner had an unlawful purpose or knowledge. But:we must take tile ordinance as we find it, and the offense as stated in the commitment; and under the ordinance we could not discriminate if the facts showing knowledge or purpose did appear; but they do not. It does not in fact appear but that the petitioner was innocently visiting the room for some proper purpose. But section 2 of the ordinance, I think, is wholly void, as being be. yond the power of the city to enact, and tbe petitioner is restrained of his liberty in violation of the constitution and laws of the United , States. He must therefore be discharged. The ordinance applies to all citizens, as well as aliens, and deprives them oh:ights and privileges secured by the constitution and laws of the United States. If directed only against Chinese, then it would be void under the fourteenth' amendment, as discriminating against them. This section wotlld .seem to make it an offense for a wholesale druggist in Modesto to sell opiunl,or any of its preparations, to a retaij , druggist of Modesto, or of other parts of the world, for the proper pur-
poses of their business. And it is claimed to be unconstitutional in other particulars, wherein it is too comprehensive, as limiting the as a medicine, for ailments not arising from the use use of the of opium. It is claimed that opium, like spirits. in cases of delirium tremens, is often the only ,medicine that will save the life of 80 party suffering from excessive prior use. But the point already determined ' is sufficient for the purposes of this case. The party being in custody in violation of the constitution of the United States, this court has jurisdiction to discharge him on habeas corpus, notwithstanding the fact that he is held by authority of 80 judgmentof a state court, (Rev. St. § 753: Ex parte Royall, 117 U. S. 241; S. O. 6 Sup. Ct. Rep. 734;) and the case is one in which this conrt, in the exercise ofa sound discretion, should discharge the petitioner, within the principles announced in that case. There are no reasons peculiar to the case that would justify putthe party to the expensive and tedious process of pursuing his remedy through all the state coprts: and, if necessary, by appeal to the supreme court at Washington, 3,000 miles away. To require this in 80 ease that seems, clellol;would be equivalent toa total denial of justice. "It would be far better for the petitioner to suffer the punishment imposed, and serVe Qut, his sentence, thau to uuderta.keso OuelQUSa. task for the vindication of his rights. Letthepetitiouer be discharged.
(Di3eriet (Jourt, D. Ma88achu8ett8.
MA,1UTIME LIEN-'SUPPLIES-DEPARTtmE FROM:' PORT-FOREIGN PORT-'Pim; ST. MASS. Ca. 192, 15, " TOllustain It' ben for supplies furnished a vessel while in her home port, it is incumbent on the material-man, by Pub. St. Mass. c. 192, § 15, to file his
claim within' 'ibilr days after the departure of the vessel from the port at which she was when the debt was contracted. A cruise from Boston to Newport, though made in order to attend a regatta, is "a departure, " within the meaning of the act. As Newport was a foreign port, the libelant is entitled, under law, to alien for such of the supplies as were furnished after her arrival at that port, notwithstanding the fact that the goods were ordered from Newport at Boston, and were sent to the ya.cht a.t Newport by express.
In Admiralty. Libel in rem for supplies furnished partly in home and partly in a foreign port. O. F. ,Loring, for libelants. ,,' R. Stone, for claimant.
Reported by Theodore M, Etting, Esq., or the Philadelphia bar.