think, is not on the bond,'but he indemnifies Mr; Bowers, who is. That is my recollection of the matter." If Mr. Burke supposed this was the state of the case, he might well .accept in payment of his loss the note, with whatever of security Swasey was able and willing to give. The amount of the loss was equally divided between the two. Burke never made any demand on Parker for reimbursement, although he lived over three years after the notes were given; and he received from Parker the half part of aamall sum which was received from the securities turned in by Swasey. If he had not intended to accept the note in payment, but intended to demand indemnity from Parker at such time as the final amount of the loss should be ascertained, he would probably have required that at least the whole amount realized from· Swasey should be paid to him.· The fact that he was under an error as to his legal rights when he accepted payment would not, I think, change the results of that act. The defendant further contends that the action of Burke had the effect to notify to Parker that he had no claim on him. and that the plaintift' is therefore estopped in this action. I do not think it necessary to refer to this defense further than to say that there is no evidence that Parker did any act, or lost any valuable thing, by reason of this representation, if such there was; and hence no estoppel arose. There will be judgment for the defendant.
KEE, on· Habeas OorpUIJ.
(Circuit (JO'l//rt, N.D. Oalifornia. May 2, 1887.)
A city ordinance, which makes it an offense to keep a laundry, wherein clothes are cleansed for hire, within the limits of the larger part of a city, without regard to the character of the structure or the appliances used for the - purpose. or the manner in which the occupation is carried on, is unconstitutional on various grounds, and void. 1 (BytlabU8 by the (Jourt.)
T. D. Riordan, for petitioner.
O. R. Coghlan, for respondent.
SAWYER, J. The petitioner is imprisoned in pursuance of a judgment of a justice of the peace of Napa county, for a "misdemeanor by maintaining and carrying on a: public laundry, where articles are washed and cleansed for hire, at a house situated on Main street, between First and Pearl streets, in the city of Napa, contrary to ordinance 146 of said city of Napa, prohibiting the establishment, carrying on, or maintaining of public laundries or wash-houses in certain limits. »
See note at end of case.
IN RE SAM KEE.
The provisions of the ordinance under which the conviction was had are as follows: "Section 1. It shall be unillowful for any person or persons to establish,
maintain; or carryon the business of a public lauudry or wash-house, where articles are cleansed for hire,' within the following prescribed limits in the city of Napa: Commencing at the south-easterly corner," etc.
Giving at length bounds, including the larger part of the city.
"Sec. 2. Any public laundry or wash-house, established, maintained, or carried on in violation of this ordinance, is hereby declared to be a nuisance. "Sec. 3. Any person violating any provision of this ordinance shall, upon conviction thereof, before any court haVing jurisdiction to try the offense, be punished by a fine not exceeding one hundred dollars, and an alternate judgment may be given requiring such person to be imprisoned until said fine is paid, not to exceed one day for each doUar of the fine."
The case 'clearly fails within the decision of this court in Re 7ie Loy, arising under a similar ordinance of the city of Stockton, (26 Fed. Rep. 611,) and within the principles authoritatively established by the supreme court of the United States in Yu:k Wo v. Hopkins, 118 U. S. 356, 6' Sup. Ct. Rep. 1064. The laundry business has been carried on by the petitioner and his predecessors, at the location occupied by him, for 20 years, and by the petitioner himself 8 years. .There is nothing tending in the slightest degree to show that this laundry is, in fact, a nuisance, and the urlcontradicted allegations of the petition are that it is not. So far as appears, it is only made a nuisance by the arbitrary declaration of the ordinance; and it is beyond the power of the common council, by its simple fiat to make that a nuisance which is not so in fact Yates v. Milwaukee, 10 Wall. 505. To make an occupation, indispensable to the health and comfort of civilized man, and the use of the property necessary to carry it on, a nuisance, by a mere arbitrary declaration in a city ordinance, and suppress it as such, is simply to confiscate the property, and deprive its owner of it without due process of law. It also abridges the liberty of the owner to select his own occupation and his own methods in the pursuit of happiness, and thereby prevents him from enjoying his rights, privileges, and immunities, and deprives him of equal protection of the laws secured to every person by the constitution of the United States. On the authority of the cases cited, without repeating the arguments so elaborately presented therein, the ordinance is held to be void, as being in contravention of the constitution of the United States. The prisoner is entitled to be discharged. Let him be discharged.
CONSTITUTIONAL LAW - LAUNDBY OBDINANCES. The ordinances or the city of 'San Francisco giving the board ofsnpervisors authority, in their discretion. to refuse permjasion to. carry on laundries, except where located in bnildings of brick or are unconstitutional. Yick Wo v. Hopkins, 6 Bnp. Ct. :Rep. 1064, reversing 9 Pac. Rep. 139. See, lure Hong If:ie, (Cal.) 10 Pac. Rep. 327. So is one which provides that such permission shall be granted only upon the recommendation of not less than 12 citizeJls and tax-payers in the block in which the laundry is proposed to be established, In re Quang Woo, 13 Fed. Rep. 229; and one which makes it an offense for any person to
carryon a laundry where clothes are washed for.pay, within thp. habitable portion of t.he city. Stockton Laundry Case, 26 Eed. Rep. 611. The legislatnre has no power to declare, or to authorize the municipal authorities to declare. private residences to be nuisances, because the same has a tendency to depreciate in valu'e the property of persons Ileal' by; or to ohst.ruct the view of the same, or to keep the breeze therefrom; . Quintin v. City of Bay St. Louis, (Miss.) 1 South. Rep. 625. Licenses for callings, trades, alld employments may be required by supervisors where the nature of the business requires special knowledge or qualifications, or where they are issued as a means of raising revenue for municipal purposes; they cannot be required as a means of prohibiting any of the avocations of life which are not injurious to public morals, offensive to the senses. nor dangerous to public health and safety. In QbongWoo, 13 Fed. Rep. 229. But an ordinance prohibiting the washing and ironing of clothes between certain hours of the night is one within the rightful exercise ofthe police powe!'s. Boon Ring v. Crowley, 5 Sup. Ct· .Rep. 730; Barbier v. Connolly, Id. 357. .
PATERSON and others
DAKIN and others.
(District Court, S.D. Alabama. July, 23, 1887.)
A court of admiralty has no power to grant an injunction enjoining the defendants from enfOrcing a claim against a cargo, nor to enforce specific performance, nor to compel the execution of a contract.
S. CHARTE:R-P ARTY-P
Where a. charter·partywhic!;l is made with the owners only, the master not being a party to it, stipulates that the mastl;lr is· to sign the bills of lading. an action in per80nam will not lie against the master for failing to sign a clear bill, but the remedy is against the owners, or in rem against the vessel.
Wher:e,a lUasier. whose duty it is to sign his ship's pills of lading, indorses on a bill of a claim for which he honestly belie.ves to be well founded; he IS not liable for vindictive or exemplary damages on its being proven tha·t there was no legal pr just claim for4emurrage, nor under these circumstances is liable for conversion.
. Where there is no legal and )ustclaimfor demurrage or otherwise, it is the duty to give a clear bill of lading; and he is liable for nominal damages for indorsing an unfounded claim upon it,. though honestly believing such claim to be valid.
: Where a Charter-party provides that "from the computation of the time allowed for delivering timber:t0 the ship shall be excluded any time lost by re&son of drought;"and it ap:\lears that at the shipping point agreed upon between the parties' it was customary to fioat the timber down certain streams and rivers to the point of shipment, which were liable to be dried up, but the harbor and booms were never endangered by drought, the word" drought" will' be held to apply to the rivers and .streams, and will not be held as surplusage.
Libel in personam to compel clear bill of lading. R. Inge Smith and R. H. Olarke, for libelants. G. L. & H. T. Smith, for respondents. ,TOULMIN, J. This libel is filed against George Dakin, master of the ship and Wylie, Fisk & Co., brokers alld agents of the owners of the ship. It is filed for three purposes, vii.: (1) To enjoin the defendants from enforcing a claim fQr demurrage against the cargo, the charter-