The morning call., 1893-06-06
FOR AND AGAINST.
Dive Cases Argued in the
Supreme Court.
THE SEVEN JUDGES LISTEN.
Davis Louderback and ii. L. Gear
Argue the ConstitutionaIity of
the New Law.

The constitutionality Of the dive or
dinance was argued yesterday afternoon
before the Supreme Court sitting in banc.
A number of divekeepers sat in the
courtroom, and many attorneys also
listened to the argument.
Davis LOuderback appeared for the dive
keepers and District Attorney William S.
Barnes, assisted by Henry L. Gear. ap-
peared on behalf of the people.
District Attorney Barnes presented the
return of the Chief of Police, setting forth
the alleged misdemeanor of the petitioner,
Schmidt, the latter's arrest, detention and
production before the court pending the
hearing of the application for a writ of
babeas corpus
Chief Justice Beatty remarked that he
was of the opinion that a writ of habeas
corpus did not lie in thes Supreme Court.
The facts set forth in the application con-
stitUte defense of the criminal action
solely. MI. Louderback answered that
that was the very proposition he desired to
argue. He first read the ordinance as
amended by the new order of the Board
Of Supervisors. the consututionality of
which is attacked. He alluded 10 the
Christensen and other eases raising similar
questions of c0nstitutionaliiy, which, as
he claimed, were decided adversely to the
new law.
Mr.. Louderback then proceeded to
aDaiyZe the ordinance.
F"it is" he said, IN the nature of a re-
striction imposed upon the issuance of
licenses as provided fer under the old
ordinance. TIE modification practically
precluded the Issuance of licenses TO per-
sons maintaining three kinds of business !;
first, the retail selling of liquor; second,
4 ft,ao frfao f. i
lhird. the employment OF women as wait
resses"
Justice McFarlaud-From your reading
of the ordinance | received the impression
that all places of musical or theatrical en-
teTtainment where drinks are sold, such as
at the Tivoli, would come under the
ordinance.
Mr.. Louderback-Onlv such, of course,
as include all three. Now, in regard to
the provlSo "that as police measure for
the suppression of vice, immortality and
crime" the language is meaningless, for il
confers no power whatever.
Counsel then entered into discussion of
the general scope and purport of the ordi-
nance, and endeavored to show that ii was
Inconsistent with the Federal aud also
with the State constitution, the latter
especially providing that women might
engage II any and all occupations and pro-
LESSONS. He said further that the effect
20 the growing spirit of liberality toward
the female sex, which had for so many
centuries been oppressed and down-trod-
den.
He alluded to the fact that female physl-
cans are allowed to prescribe for men as
well as women and children, and that no
one had raised any question of evil influ-
ence arising from such prOpinQuity. He
contended, therefore, that the ordinance
should not stand.
Attorney Gear then argued in support of
the ordinance. He said that the Christen-
sen case could not be taken as in any man.
ner governing the principle involved in the
case attic bar. The ordinance declared
legal, that case simply provided that
eva - Saloon-keeper employing women
~. De required to Day license of $780,
NoNone could dispute that an arbitrary
power is vested in the municipality to
license some businesses and not others, no
matter what the character or proportion of
the profits of the business may be.
Chief justices. Beatty have already
said that / am of the opinion that this
whole question cannot be raised in this
court eXcep: upon appeal from lower
court. l am opposed to the practice at
present prevailing of bringing these pub
lie questions before this court by eXtraor-
binary proceedings. The responsibility of
preliminary decision should rest upon the
lower court.
Justice Fitzgerald concur with the
Chief Justice on that point.
Justice de Haven't dissent. / do not
see how the court can avoid deciding the
question on this petition
Chief Justice Beatty-Then you had bet
ter proceed with your argument, MIR. Gear.
Counsel then alluded TO "the notorious
fact that the San Francisco dives were i'm
moral and pernicous in their influence.
aud pr0mOtive of vice and crime They
thus come within the control of police regu-
lation, as has been often decided by the
Supreme Court of the United States,
''In the Christensen case. United States
Justice Field delivered the opinion of the
court, from which, by the by, there was no
dissent, in which he stated that the right
TO sell liquor is not an inherent right, for
tie reason that Legislatures have decided
that the welfare Of those dependent upon
tie frequenters of saloons and therefore
The public at large, demands that the right
10 sell liquor be prescribed and limited by
'aw.
''No sex legislation can be imputed to
this ordinance for the reason that it is not
the fact that women are employed as
walters in dives that is at the foundation
OF the prohibition, but the evil influences
arising from the conditions which exist in
all such places.
"a blow Is not aimed at women, but at
the men who employ the women. 1t is
man'estly not desired to abridge the con-
stltutional right of women to engage in a
certain vocation, but desire to suppress
the evil which incidentally flows from such
employment"
Rdmonlshlng them, however, to do so at
a a Is n LA ilty Il Cd