(Circuit Cou'rt, D. Kcnt,ucl"ll. 1. CONSTITUTIONAL LAW DISCRIMINATION AMENDMENT TO VALID ACT,
August 8, 1884.)
is unconstitutional, because it discriminates between citizens of different
2. SAME-HABEAS CORPUS,
The validity of a constitutional act is not affected by an amendment which
states, and which does not in terms repeal the original act. The amendment is void, and does not by implication repeal the original act.
An offender, convicted under the original act, will not be discharged on wril of habeas c()J"pus. Doubts are to be solved in favor of the constitutionality of legislative enact· ments.
On Writ of Habeas Corpus. Quigley 0;' Quigley, for petitioner. Bussell 0; Helm, for respondent. BARR, J. It appears from the petition of the prisoner, and the return of the jailer in response to the habeas corpus, that Davis has been indicted for selling goods, wares, and merchandise as a peddler without a license, and that he has been convicted and fined $100, which he has failed to pay and is now imprisoned under the law. court cannot discharge the prisoner unless the law under which he has been indicted and convicted is void because it violates the constitution of the United States. If,however, this law is clearly a vio· lation of the federal constitution, it is the duty of this court to discharge him. Rev. St. § 753; Ex parte McCready, 1 Hughes, 598; In 1"e Hrosnahan, 18 FED. REP. 62. The constitution of the United. States is the supreme law and must be obeyed. The question of whether congress or the legislature of a state has violated its provisions, is always one of delicacy, and one in which the courts will solve doubts in favor of the constitutionalityoflegislative enactment. The petitioner, Davis, was indicted and convicted imder the provisions of the eighty-fourth chapter ofth'e Get.leral Statutes. The ,first section: of this chapter provides that "all itinerant persons vending goods, wares, merchandise, - - - or any other thing, - · · shall be deemed a peddler jn and subsequent sections required all peddlers to obtain a license to sell, and provided that if any person violate the provisions of the chapter he shall be fined $100, and in default of payment of the fine shall be imprisoned not less than 50 nor more than 100 days in the jail of the county where the offense was com· mitted. The General Statutes were passed in April, 1873, and went into effect December 1, 1873. The legislature, at its next session,
by George Du Relle, Asst. U. S. Atty.
EX PARTE DAVIS. ,
passed an act, February .21,18:74, entitled"An act to amend chapter 84 of General Statutes, title, ·Peddlers,' .. which is as follows:
and the same is hereby so amended that itinerant persons who are citizens 01 this state, and who vend exclusively goods. wares, and merchandise, which are the growth, product, or manufacture of this state, shall not be deemed peddlers, nor required to take out license under the provisions of said chapter."
tucky, tlJat chapter eighty-fouf of the General statutes, title, ·Peddlers,' ba
"(1) Be it enacted by the general assembly of tM commonwealth 01 Ken-
This amendment made a discrimination between citizens of this state and citizens of other states, and between "goods, wares, and merchandise which are the growth, product, and manufacture" of this state, and those which are the product or manufacture of obhe'r states. This discrimination is clearly unconstit.utional, (Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434,) and, be· ing unconstitutional, the amendment is null and void. But this should not release the petitioner, as he was prosecuted unde.r: the original'a,ct; unless the amendment has made the original act void. The original act made no discrimination, and the question is wpether the passage of this amendment, which made a discrimination, destroys .the whole act. The rule is to sustain as much of a legislative enactment as is constitutional, if it can be done with a proper regard to the legislative will. This amendment does not in terms repeal the o.riginallaw, and if that law is repealed in part, it is because the amendment is inconsistent with so much of the original act. The amendment, being unconstitutional, is itself void, and hence did not repeal any part, of the original act.· The original act and the amendment of 1874 wera passed by different'legislatures, and it therefore caIlhot b.esaidthat the original act would not have been passed exoept ment. The chapter (84) is a perfect law within itself,and we;see,tlo good reason why it should not stand as if the amendment· had nevEl.\' been passed. , If we are correct in our view, thentbe amendment of 1874 has no legal effect, and all itinerants-residents and goods, wares, and merchandise, wherever manUfactured, ar.e peddlers 1 and liable to be prosecuted if they sell without'license. This "iew would not be permissible if the state courts'have held this amendment to be a valid amendment, and as such eng-rafted upon the original act; but I do not understand that they haive so decided. The man.. 'uscript opinion of the oourt of appeals, (Com. v. Oecil, decided ,March ]882,) decides no more than that, this coustitutiol'lal'question did ,arise in that case; and the same. coltl't,in Daniel Vi Richmond;,'l:8 ,Ky. 643, distinctly decides that· adisorimiriation like the one made .by this amendmentisuDconstitutional and 'void.' This.. cQurtc.an., not assum& tl;ta,t the court of. appeals will deelare: ,constitutional} and. being oltha opinion the is ,constitutional, should assume that, the; judioial. depar4im,.ent,. of, ahe
stlttewill regard it as a :nullity, and 60nsider the original law standing without. amendment· . The petitioper .should therefore be to the custody of thejailer of McCracken county; and it is so o:.:dsred.
In re STEWART, Bankrupt.
(District Oo'urt, D. New Jersey. July 24, 1884.)
'l'he discharge of a bankrupt is not a matter of right, but of favor, and the law may prescribe the terms on which he may be released from the payment of his debts; and every pers\>n who subjects his property to the hazard of loss at the gaming table, and loses what in fact belongs to his creditors, is not within the class entitled to the bonefit of the statute. The law does not charge the court with the duty of ascertaining whether or not the bankrupt's losses by gaming exceeded hiB winnings, and if it is shown b1 the evidence that he actually lost money by gaming the court must refuse hIm a discharge.
SAME-Loss BY GAMING-WINNDlGS-EvIDENCE.
In Bankruptcy. Specifioation against discharge. Henry S.Harri8, for bankrupt. James Buchanan, for petitioning oreditors. NIXON, J. The sole allegation in the specifications filed agains' the discharge of the bankrupt is that he lost some part of his property in gaming. This is one of the grounds set fortain section 5110 of the Revised Statutes, which, when it is proved, compels the court to refuse the discharge. It is founded on the idea that the order of discharge is not a matter of right, but of favor; that the law may prescribe. the terms on which the debtor may be released from the payment of his debts; and that every person who subjects his property to the hazard of loss at the gaming table. and loses what in fact belongs to hiB creditors, is not within the class entitled to the benefit of the act. Such a provision occurred in all the earlier English bankruptcy laws, but has not been included in the later acts consolidating the law of bankruptcy; nor is it found in the United States bankrupt act of 1841. What is gaming? And has the allegation been proved in the present case? The word has a wide signification. It includes wagers, bets, or stakes depending upon chance. Webster says it is the use of cards, dice, billiards, or other instruments according to oertain rules, with a view to win money or other thing waged tiponthe :is8ueof the contest. The specifications chargenumerous games of chance, with cards, for money at various places, but especially at' the village of Washington, New Jersey, the residence of the bankrupt. The proofs are clear as to the fact of the gambling, but not very definite as to the losses which the bankrupt sustained.