The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-06-04
DIVE JAWS YAWN.
Hayes and Smithy Gain a
Point.
THEY OBTAIN THEIR WRITS.
The Case Will Be Argued Tomorrow
Before the Supreme Court
in Bank.

Joseph Hayes and Felix Smithy, the two
divekeepers, who were arrested on Friday
evening for violating the anti-dive law. are
happy men. They have successfully, for
the present at least, defed Chief of Police
Crowley and his merry men.
Hayes keeps the Eureka Hall on Kear-
ny street, and Smithy holds forth at 81
Grant avenue. Their licenses expired on
Wednesday night, but strong in the belief
thai they could set the law at defiance
they kept their places open. In conse-
quence they were arrested.
They gave bail in the Police Court. and
ex-Judge Davis Louderback, who repre-
sentedthem, announced his intention OF
appealing to the Supreme Court for writs
of habeas corpus on various grounds.
The matter came before the Supreme
Court yesterday. and resulted in writs of
habeas corpus being granted, returnable
tomorrow. The case will be heard by the
Supreme Court in bank at O'Clock on
thai afternoon
Following are the detailed objections TO
the ordinances under which Hayes and
Smlthy were arrested, which are embodied
In the applications for the wrlts:
l. That they violated the constitution of the
State of California, and particularly section Is.
article Xxx, thereof which provides that no
person shall on account OF sex be disqualified
rom rom entering upon or pursuing any lawful
business, vocation or profession; and also Sec
usu /, article /, thereof.
2. That they are unreasonable, unfair, par
tlal, unequal. unjust and oppressive and viola
i've OF the rights OF property and the lights OF
PERSONS and citizens to pursue and follow law
ful businesses and vacations, and to acquire,
possess and enjoy property.
D. That they violate the constitution OF the
united States, ana particularly article XIV
thereof. which prohibits laws abridging The
privileges and iInmunltIes OF citizens OF The
united States ana pfohibits any persons being
deprived OF property without due process OF
law, ana which guarantees that no person shall
be denied the equal protection of the laws.
f. That SAID ordinances and sections and
parts thereof deny TO persons The equal rights
to pursue lawful v0cailons and TO acquire and
possess property.
Az That they violate section 8, article /,
aud sec lou 10. article |, of the constitution of
the United States, aud section 16, article l. Of
the constitution of this Stale. prohibiting bills
OF attalnder and TX post factn laws.
b. That said ordinances and said sections and
parts thereof violate sections 1877, 1878 and
1879 OF the Revised Statutes of the United
States, which provide for the equal rights of all
persons, ETC., and which prohibit the depriva-
ton of any rights, privileges and immnnties
secured by the constitution and laws.
6. That the Board of Supervisors of said city
and county had no lawful authority, right or
power to enact said ordinances anu SAID Sec
lions and parts Their OF.
T. That The facts charged stated in the
said complaint or In the said warrant do not
constitute any crime, mIsdemeanor or offense,
OF any violation OF any ordnance OF said city
and county of San Francisco.
8. That there is no ordinance OR valid ordi-
nance of said city and county maxim the acts
charged or stated in the said complaint or In
said warrant public offense a crime or
mSdemeanOr.
o. That section OF said ordinance No. 1889
Is invalid aud void. That the Board of Super
visors OF said city and county had no power or
authority TO enact the same. II Is unreason-
able and not in harmony with the laws OF the
State and therefore void.
EX-Judge Lpuderback says that he will
take no advantage of legal tochnicaiities.
but will fight the ordinance purely on the
ground OF unc0nstitutionality.
People who have not studied this new
ordinance carefully" he said, Twill wonder
why l speak of bills of attainder and ex
bost factp laws in my objections. 1t IL for
this reason: In the ordinance it is laid
down that whoever has carried on the bust
ness in any time In the past can never get
license again To carry on liquor BUSH
ness in any form whatever. That is to say,
that although a man carried on such a
business, say ten years ago, when there
was law to prevent ii, and wished to re-
sumo at any time in the future, this ordi-
nance debars him from obtaining license
even to sell liquor.
There are many other points highly OBJ
Jectionable, but they will all be fully ar
gued on Monday afternoon.
Our desire is simply to test the validity
of the ordinance, and do not think IL can
be upheld"
Chief Crowley said that so far as the
police were concerned, there had been no
new developments.
I'VE will simply keep on arresting
them" said the Chief, $50 long as they
continue to defy the ordinance. They may
give bonds, but we will 90 ahead till we
close up these dives.
Il understand they are to rely chiefly
upon the decision in the Mary Mcguire
case, where the Supreme Court held that
under the new constitution women could
not be barred from occupying any position
that man could ocrnpy."