Ex parte Hayes

This is a proceeding upon habeas corpus, and the question involved is, whether it is competent for the board of supervisors of the city and county of San Francisco to provide by ordinance that it shall be unlawful to engage in the business of selling spirituous, malt or fermented liquors without a license, and at the same time to provide that no license shall be issued to any person for the purpose of engaging in the business of selling such liquors or wines in any dance-cellar or dance-hall, or in any place where females are permitted to wait or attend in any manner on any person, and wherein these is also any musical, theatrical or other public exhibition, thus in effect prohibiting the sale of liquors or wines in such dance-cellars or. other places where musical and theatrical entertainments are given, and where females attend as waitresses.

The fundamental principles which underlie and support legislation of this character were announced by this court in Ex parte Christensen, 85 Cal. 208 , and also received an exhaustive discussion by the supreme court of the United States in the case of Crowley v. Christensen, 137 U. S. 86 ; and upon the authority of those cases we hold that…

— I concur in the judgment. Upon the facts shown by the petition and the return, the petitioner is lawfully detained irrespective of the validity of the amended ordinance. If it is valid the complaint clearly charges him with its infraction; if it is invalid the facts alleged constitute an infraction of the unamended ordinance. In either case an offense is charged, and the imprisonment being lawful in any event, the question as to the validity of the ordinance cannot be decided in this proceeding without going outside of the case presented, which I do not care to do.

I concur in the order remanding the petitioner, because I do not think that the points sought to be made by him can be raised on habeas corpus. A proceeding under the writ of habeas corpus cannot be turned into either a writ of error or a nisi prius trial.

As to whether parts of the ordinance in question are constitutional, I express no opinion, except to say that in my judgment, they are not covered by the Christensen case. The facts in that case are entirely different, and the dictum of the opinion therein delivered must be taken in connection with the facts then before the court. If taken in its broadest sense,…