UXITED STATES V. RONAN.
party will not be able to obtain justice in said court. This showing may be made by affidavit; and if this constitutes a specific averment, while it may not be conclusive, it is prima facie evidence of the fact, and throws the case into this court, leaving the other party to challenge its truth. 'rhere being no form, no procedure prescribed, I think the court in any particular case may prescribe a mode of procedure, or might lay down a general rule applicable to all cases. Such being tne conclusion to which I have come, both from the argument had here, and from those had elsewhere, it must be held that this affidavit is insufficient; it is no affidavit at all. It is a form of affidavit that might be used for the verification of a pleading, or other purposes, when authorized by statute; but as evidence it is nothing. I shall have to sustain the motion to remand, on the ground that there is no evidence before me from which to find the existence of any prejudice or local influence. As a question of practice,and out of respect to the state court, I think that the affidavit of local influence may be filed in that court, and then a certified copy in this.
RONAN, Sheriff. 1
(Oircuit Oourt, S. D. Georgia, E. D. November 7,1887.)
A saloon keeper, who had made no attempt to comply with the state liquor law, pleaded guilty when arraigned under an indictment charging him with having sold liquor without the license required by the statute. He was sen· tenced to he imprisoned until the fine imposed was paid. Application was made to the United States district judge for a writ of habea8 corpU8, on the ground that the act under which the petitioner was prosecuted was unconstitutional, because it denied him the equal protection of the laws guarantied by Const. U. S. Amend. 14. The particular act in question had never been sustained by the supreme court of the state. The district judge refused the writ. Held, on appeal, that the granting of the writ rested in the discretion of the district judge, and, the facts showing no abuse of that discretion, his refusal of the writ should be affirmed. Code Ga. § 1419, as amended by the act of October 16,1885, provides that no license to retail spirituous liquors shall be granted, except in incorporated cities 0'1' towns, unless with the "written consent of ten of the nearest bonafld6 residents, five of whom shall be freeholders, "etc. Held, that the exception in favor·of such towns and cities was not unconstitutional as denying to saloon keepers in the counties the equal protection of the laws secured to citizens by Const. U. S. Amend. 14. 2 . Nor is that section of the Code in contravention of the fourteenth amendment because the decision of the court of county commissioners, and of the ordinary in counties where no such court exists, is made final and conclusive;
JUDGE-CONSTITUTIONALITY OF LIQUOR LAW.
lNTOXICATIKG LIQUORS-:;CONSTITUTIONAL LAW-CONSENT OF FREEHOLDERS.
SAME-CONSTITUTIONAL LAW-LICENSE-CONCLUSIVENESS OF DECISION.
.,1Aftlrming 80 Fed. Rep. 51. · I See note on next page. Reported by Joseph P. Hornor, Esq" of the New Orleans bar.
. it being withi n the power of the state to authorize the issuing of licenses to sell intoxicating liquors, and to determine the conditions upon which the person to whom, and by what officials, the licenses may be granted,l Appeal from District Court. On habeas corpus. Charles N. West, for petitioner. H. G. Dubignon, Dist. Atty., for the Sheriff.
PARDEE, J. Section 1419 of the Code of Georgia, as amended by act of the legislature approved October 16, 1885, (see Public Acts, Sess. 1884-85, pp. 59,60,) provides as follows: "Persons. before obtaining license to retail Ilpirituous liquors, or sell the same in any quantity less than one gallon, must apply to the ordinary of the county, or to the county commissioners ofihe county where such courts exist, in which they desire to retail 01' sell in any quantity less than one gallon, who have power to grant or refuse such application. Before any license shall be the applicant shall present to the ordinary the written consent of ten of the nearest bonafide residents, five of whom shall be freeholders owning land, irrespective of county lines, nearest to the place of business where such spiritnous liquors are to be sold: provided that this act shall not apply to incorporated towns or cities. When such application is granted and entered on the minutes, the applicant shall execute a bond, with sufficient secnrity, in the sum of five hundred dollars, pa:l'able to such ordinary, conditioned to keep an orderly house, and to abide faithfully by the oath to be taken by him, which bond shall be taken and approved by the ordinary, filed ill his office, and recorded in a book kept for that purpose. Any person aggrieved may bring suit on such bond. granted in any other way are void. They shall also, at the same time, before said ordinary, take and subscribe the following oath: · I swear that I will not, during the next twelve months, sell, barter, give, or furnish spirituous or intoxicating liquors, in any quantity, to any minor, either white or colored, without the consent of his or her parents or guardian, and that! will not allow others to do so for me with my knowledge 01' cOl'lsept, so help me God.' .. Janul11'y6, 1887, the grand jury of the county of Chatham, state of Georgia, presented in the superior court of said county the following, towit: "The grand jurors selected, chosen, and sworn for the county of Chatham by special presentment in the nanie and belmlf of the citizens of Georgia charge and accuse L. L. Hover, of the county and state aforesaid, with the offense of a misdemeanor.. For that the said L. L. Hover, in the county of Chatham and state of Georgia aforesaid, on the first day of August. in the year of out Lord one thousand eight hundred and eighty-six, without license from the board of county commissioners of the county of Chatham, the proper authority invested by law with power to issue such license, in a certain houSA did sell by retail whisky, without license from said boar!l of county commissioners, as aforesaid, contrary to the laws of said state, and the good order, peace, and dignity thereof." . January 22, 1887, the I'ellttor appeared in said superior court, waived arraignment, 'illld pleaded guilty. 'rhe state accepted the plea of guilty,
lAs to the constitutionality of legislation regulating or prohibiting traffic in intoxicating liquors, see Ex parte Burnside, (Ky.) 6 S: W. Hep. 276; Ex parte Kennedy, (Tex.) 3 S. W. Rep. 114, and note. . ... .. '
UNITED STATES V. RONAN.
and on February 12th following the said superior court, on the presentment and plea aforesaid, sentenced the relator as follows, to-wit: "That you, L. Hover, pay a fine of three hundred dollar!!, and be discharged on payment of said fine and costs; but if the said defendant fail to pay the said fine and costs, it is ordered that in lieu thereof you be imprisoned in the cOffiillonjail of Chatham county for the space of six months." The relator refused to pay the said fine, was taken into custody by the respondent sheriff, and thereupon petitioned the Honorable EMORY' SPEER, judge of the district court of the United States for the Southern district of GE'orgia, fora writ of habeas CO'I'pus. In his petition, after setting out the proceedings in the state court, he alleges, as grounds for the writ, that at the time specified in the said presentment he resided in said county of Chatham, outside of any incorporated town or city, and that he, was dUly authorized by license bearing date January 2, 1886, issued unto him by authority of the General Laws of the state of Georgia, and continuing in force for the space of one year from said date, to sell whisky by retail in said ,county; that the said amended article of the Code of Georgia under which he was presented and sentenced is void, because ih violation of the fourteenth amendment to the constitution of the United States. The conflict with the fourteenth amendment is set out in detail as follows: , "That the said act of October 18, 1885, denies to aU persons within the justate the equal protection of its laws, and did deny to petirisdiction of tioner the equal protection of the laws of Georgia, by requiring for your petitionerthe consent of the residents of said state, as 'a condition precedent to the issUance to your petitioner of a license to do a business sanctioned as legal by the laws of Georgia. and by its license to him; and by requiring for your petitioner a license to be granted to him by the arbitrary discretion of the board of county commissioners of said county, after the performance of the said condition precedent in the obtainment of the consent of ten resident persons; and by requiring from your petitioner the application for a license under saideonditions precedent, and the granting of a license unto him at the said arbitrary:discretion of persons, while expressly relieving the residents of cities from the burdens, restrictions, duties, pains, and incorporated towns penalties applied by said act to your petitioner." On filing the petition for the writ of habeas corpus, the district court heard'argument, and thereafter refused the writ, assigning lengthy'reasons appearing in the record, and reported in 30 Fed. Rep. 51. The relator 'applied for an appeal to the circuit court, and the same was granted. The matteron appeal has been submitted by agreement to the drcuit judge on briefs. The cau,se being heard on appeal from the order of the district court refusing the writ, the, question primarily to be considered is whether the district court was justified in its order. According to the decision of the supreme court inEz parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734, the refusal of the IWrit of habeas corpus in a caselike this is within the discretion of the court, as the petitioner, conceding the law of the case, has other remedies for his relief. Unless it appears in this case" therefore, that the discretion of the district court in refusing the writ under the
circumstances of the case has been inconsistent with law and justice, it is difficult to see how the relator can be relieved on appeal. The showing made by tve petition is one where no attempt appears to have been , made to comply with the law of the state in any respect, no application for license, no consent of bona fide residents, no bond to keep an orderly house tendered, nor any oath taken as to selling liquors to minors, and no defense was made before the state court. The particular law of the state of Georgia attacked by the petitioner does not appear to have been sustained by the supreme court ofGeorgia. As to the discretion given by the law to the ordiJ;lary or the county commissioners to grant or refuse a license, it is conceded that the supreme court of Georgia, under the section (1419) before amendment,held that the discretion could not be reviewed. See Wigginsv. Varner, 6,7 Ga. 583. But as to the discrimination between.towns and cities on the one side, and the country 011 the other, it does not lil-ppear that the courts of Georgia have ever been called upon to pronounce.. If such discrimination is in violation of the fourteenth amendment to the constitution of the United States, the courts of Georgia are bound to so declare it; and if they fail, the party aggrieved may haveh;i 13 writ of error to the supreme court of the United States. It would seem then that there can be no injustice in leaving the petitioner to prosecute his rights in the state courts, and that the action of the district court in refusing the writ in this case is sustained by Ex parte Royall, supra. The district court, however, did not base its refusal on any such narrow ground, but attacked the relator's case on its merits, and put in the record of appeal its reasons in full. These reasons I have carefully considered, with the authorities cited in support, and in the conclusion reached I fully concur. The exception of incorporated towns and cities from the operation of the law complained of, was doubtless considered necessary and proper because of the difference in social and police conditions existing between town and country, and because of the larger powers as to local government usually granted to towns.and cities. If such exception amounts to discrimination, it cannot be said to deny to any person the equal protection of the laws, as the exception affects localities, and not persons, and persons similarly situated come under. the same rule. See Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350. On the other ground of complaint, the principles declared by the judges in Bartemeyer v. Iowa, 18 Wall. 129, fully determine the instant case: "The right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States." Justice "No one has ever doubted that a legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property." Justice BRADLEY· .. I have no doubt of the power.of the state to regulate tbe sale of intoxicating liquors when such regula,tion does not amount to the destruction of the right of property in them." Justice FIELD., Then there can be no doubt abouUhe power of the state to authorize the gra,nting of licenses to sell intoxicating liquors, and to determine the
SINGER MANUI!"G CO. V. WRIGHT.
conditions upon which the person to whom, and by what officials, the licenses may be granted. Under a license system, as distinguished from a tax system, there must be some authority to determine upon the fitness of applicants, and as to the compliance with required conditions; and in the matter of selling liquor, there ought to be some authority with power to limit the number, and control the location, of the places where sales shall be authorized. This power needs to be discretionary, but at the same time final and conclusive. In the law attacked, this power is vested in the court of county commissioners, and in counties where no such court exists, in the ordinary of the county. It can only be said to be arbitrary in the sense that it is not reviewable by any other court. n is difficult to see in this any denial to the relator of the equal protection of the laws. The Cases of Yick Wo and Wo Lee, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, are easily distinguished from the case in hand. Yick Wo and Wo Lee were Chinamen, appealing against legislation directed against, and conceded to be in fact and operation a discrimination against, their race, and complaining of arbitrary authority which refused them the right to pursue a harmless and useful occupation; and they had complied with every requisite of the obnoxious law looking to the police regulation of their business. The relator presents no such case. The judgment of the district court is affirmed.
WRIGHT, Compt. Gen. 1
(Oircuit Oourt, N. D. Georgia. May 18, 1887.)
CONSTITUTIONAL LAW-OCCUPATION TAX-CORPORATIONS.
Where, by a general tax act of a state, a specific tax is assessed upon "every seWing-machine company selling or dealing in sewing-machines, by itself or its agents, in this state," such act extends to and embraces all such companies, whether corporations. joint-stock companies, or partnerships. domestic or foreign. and is not violative of that provision of the federal consiitution which declares that "the citizens of each state are entitled to all privileges and immunities of citizens in the several states." That in point of fact no domestic compl).nies are at the time engaged in such business within the state is immaterial; and cannot vary the rule. 2 Such companies are proper subjects of state taxation, and the assessment of a specific tax on their business within the state is not a regulation of commerce among the states. 2
SAME-OCCUPATION TAX-INTERSTATE COMMERCE.
A corporation regularly adJl'.itted to transact business within a state is a "person within the jurisdiction" of that state, and as such is entitled to the "equal protection of the laws;" but this clause of the fourteenth amendment does not forbid a proper classification of corporations for purposes of state taxation.
lReported by W. A. Wimbish, Esq., of the Atlanta bar. N.
IRespecting interstate commerce in general, see Pearson v. Distillery Co., (Iowa,) 54 w. Rep. 1, and note.