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ney; whereupon it was stipulated and agreed in open court by counsel for the people and by counsel for the petitioner that the facts are as set forth in the petition on file herein for the writ of habeas corpus. The cause was then argued by counsel on the points stated in the said petition and was thereupon submitted to the court for its decision and judgment; and the court being fully advised in the matter does now upon the authority of Matter of Ah Cheung (136 California, 678), dismiss the writ of habeas corpus heretofore issued herein and remand the petitioner to the custody of the chief of police of the city and county of San Francisco. Ordered accordingly. The petitioner reserved an exception to the judgment.”

Plaintiff in error's petition presents the question of the constitutionality of the ordinance under which he was convicted. Section one makes it unlawful for any person to exhibit any gambling implements whatsoever in any "barred or barricaded house or room or other place built or protected in a manner to make it difficult of access or ingress to police officers, where any cards, dice, dominoes, fan-tan table or layout, or any part of such layout, or any gambling implements whatsoever, are exhibited or exposed to view when three or more persons are present."

Section two makes it unlawful to visit or resort to such barricaded house or room.

The ordinance received consideration in the Matter of Ah Cheung by the Supreme Court of the State of California. 136 California, 678. It was decided that it refers "only to places which are specially barred and barricaded against intrusion by officers of the law, so that illegal gambling may be protected from discovery. Rightly construed, the words 'barred and barricaded' do not include an ordinary private residence or room, where doors are sometimes locked or bolted in the ordinary method. Neither should it be construed to mean an attempted prevention of ordinary innocent games played with cards, dice or dominoes."

The suppression of gambling is concededly within the police

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powers of a State, and legislation prohibiting it, or acts which may tend to or facilitate it, will not be interfered with by the court unless such legislation be a "clear, unmistakable infringement of rights secured by the fundamental law." Booth v. Illinois, 184 U. S. 425, 429; Otis v. Parker, 187 U. S. 606. As interpreted by the Supreme Court of the State, the ordinance cannot be so characterized.

It is contended that the ordinance makes criminal "the mere act of innocently visiting such a house or room where the visitor had no knowledge and nothing whatever to do with the barring or barricading of the premises or the prescribed articles." It is hence contended by plaintiff in error that "he is deprived of his liberty without due process of law, in that he is prohibited thereby from visiting, innocently and for a lawful purpose, the house or room or place mentioned in said ordinance." Granting, for argument's sake, that one might visit innocently a barred or barricaded house or room where gambling implements are exhibited or exposed to view, and, if as plaintiff in error alleges in his petition, that he was convicted, notwithstanding he established that he had innocently visited the house mentioned in the charge against him, we are not at liberty to declare the ordinance unconstitutional. Besides, his remedy for that ruling was not by habeas corpus. It was by appeal to the Superior Court, which the Penal Code of the State gave him. We may observe he could have raised on such appeal the questions he now raises and have them reviewed by this court.

Plaintiff in error avers "That said ordinance and the provisions thereof are enforced and executed by the said municipality of San Francisco, and said State of California, solely and exclusively against persons of the Chinese race, and not otherwise." The contention is that Chinese persons are thereby denied the equal protection of the law in violation of the Fourteenth Amendment of the Constitution of the United States. Yick Wo v. Hopkins, 118 U. S. 356, is cited to sustain the contention. And, it is further contended that the fact of

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a partial execution of the ordinance is admitted by the order of the Superior Court, wherein it is recited that upon the presentation of the case "It was stipulated and agreed in open court by counsel for the people and by counsel for the petitioner that the facts are as set forth in the petition on file herein for the writ of habeas corpus." There is a misunderstanding between counsel as to what was intended by the stipulation. Counsel for defendant in error contends it was not intended to admit a discrimination in the administration of the law, but to submit the case on such facts as would test and cause a review of the Matter of Ah Cheung, supra. This seems to be supported by the order of the court taken as a whole, and it is the understanding of the court we are to ascertain. In other words, we are to ascertain what questions of law and fact were submitted to the court. It cannot be certainly said that the court regarded the fact of discrimination to have been admitted, for it rested its decision on the authority of the Cheung case. The court indeed may have regarded the allegation of the petition as lacking in certainty of averment, and hence not bringing the case within the ruling of the Yick Wo case. That case concerned the use of property for lawful and legitimate purposes. The case at bar is concerned with gambling, to suppress which is recognized as a proper exercise of governmental authority, and one which would have no incentive in race or class prejudice or administration in race or class discrimination. In the Yick Wo case there was not a mere allegation that the ordinance attacked was enforced against the Chinese only, but it was shown that not only the petitioner in that case, but two hundred of his countrymen, applied for licenses, and were refused, and that all the petitions of those not Chinese, with one exception, were granted. The averment in the case at bar is that the ordinance is enforced "solely and exclusively against persons of the Chinese race and not otherwise." There is no averment that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against

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the ordinance than the Chinese as to whom it was not enforced. No latitude of intention should be indulged in a case like this. There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a State.

We think, therefore, the judgment of the Superior Court should be and it is hereby

Affirmed.

MR. JUSTICE PECKHAM dissents.

THE SUPREME LODGE, KNIGHTS OF PYTHIAS, v.

MEYER.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 234. Argued April 28, 1905.-Decided May 29, 1905.

A certificate of insurance on the life of a member residing in New York in a mutual association was executed by the officers in Illinois; it provided that it should first take effect as a binding obligation when accepted by the member, and the member accepted it in New York. It contained a provision that it was to be null and void in case of suicide of insured and also one waiving all right to prevent physicians from testifying as to knowledge derived professionally. After the insured died the association defended an action brought in New York on the ground of suicide and claimed that §§ 834, 836, N. Y. Code Civil Procedure, under which the court excluded testimony of physicians in regard to condition of deceased, were inapplicable because the policy was an Illinois

198 U. S.

Argument for Plaintiff in Error.

contract and also because in view of the waiver in the certificate their enforcement impaired the obligation of the contract. Held, that: The general rule is that all matters respecting the remedy and the admissibility of evidence depend upon the law of the State where the suit is brought.

Under the circumstances of this case the contract was a New York contract and not an Illinois contract.

As §§ 834, 836, of the N. Y. Code of Civil Procedure, were enacted prior to the execution of the contract involved, they could not impair its obligation.

In cases of this nature this court accepts the construction given by the courts of the State to its statutes, and even if under § 709, Rev. Stat., this court could review all questions presented by the record, the judgment should be affirmed.

THE facts are stated in the opinion.

Mr. Carlos S. Hardy and Mr. Lawrence G. Goodhart for plaintiff in error:

The terms of the certificate, the laws and rules of the association, together with the application for membership, constitute the contract which existed between the member and the society. Sabin v. Phinney, 134 N. Y. 143; Hellenberg v. District No. 1, 94 N. Y. 580; Sanger v. Rothschild, 123 N. Y. 577; Niblack on Mut. Ben. Societies, § 166; Grossman v. Supreme Lodge, 13 St. Rep. 592; Fullenwider v. Royal League, 180 Illinois, 625.

It was, therefore, competent to introduce evidence which the trial court excluded, tending to prove that Meyer committed suicide.

The contract in suit is within the protection of the nonimpairment clause of the Federal Constitution. Art. I, § 9, cl. 7.

This contract is therefore not to have its obligations impaired by any act of the State of New York. 15 Ency. of Law, 2d ed., 1032.

Plaintiff in error is not a resident of New York, but is a Federal corporation, organized under the act of Congress.

The contract consisted of an offer made on the sixth day of September, 1894, and its acceptance.

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