town to be paid by a tax, and there was no oth- | lished her right to the tax by the judgment of er evidence of the obligation to levy the tax than the circuit court in a suit to which the town in the vote of the electors. Under such circum- its corporate capacity was a party, she may use stances, there was reason for holding that the the power of that court to command the assessonly legitimate evidence that could be produced ment and collection of the tax as a means of to the County Clerk of the fact of the vote was carrying the judgment into execution, notwiththe certificate, which had been specially pro- standing what the taxpayers may have caused vided for in the Act authorizing the donation to to be done in some proceeding to which the rebe made. Here, however, the bond carried on lator was not a party. The right to the compuits face the declaration of the town that the tation and assessment, as well as the collection holder was entitled to have the tax assessed and of the tax, followed as a matter of law from the collected for its payment, and whatever was establishment of the liability of the town for legitimate evidence of the issue of the bond was the payment of the interest which it was agreed legitimate evidence of the duty of the clerk to should be made by the assessment and collecact. The fact of the issue having been con- tion of the tax. An injunction against the ofclusively established by the judgment, the pres- ficers before the judgment against the town was entation of the exemplification of judgment to rendered, cannot stand in the way of the enthe County Clerk was all that was in law nec-forcement of the tax by the circuit court to caressary to make it his duty to proceed. 2. As to the certificate of the town clerk that the judgments had been audited and allowed by the town auditors. ry its judgment into execution. of the writ of mandamus to the circumstances James H. McKenney, Clerk, Sup. Court, U.S. v. The writ of error is dismissed as to the relators Fairbanks, Skinner and Thomas, and the judgment of the Circuit Court awarding the mandaWhat has already been said is equally appli- mus in favor of Caroline C. Wetmore is affirmed. cable to this branch of the case. The judgment The cause is remanded, with leave to modify the established the legal right of the judgment cred-judgment in such a way as to adapt the command itor to have the tax specially provided for by section 13 of the charter of the company computed and assessed by the County Clerk without any further action of the town officers. After the issue of the bonds it became the positive duty of the County Clerk to compute and assess, in the regular course of business, to the extent that was necessary, the tax that had been contracted for to meet the liability thus incurred. It became, in legal effect, a part of the contract of the town that this should be done, and the judgment of the court establishing the contract was equivalent to a judicial determination that the tax must be levied by the County Clerk, unless the judgment was otherwise provided for. Whenever, therefore, it was made Form of judgment, when not ground of appeal. to appear to the County Clerk in any way that no other provision had been made, it was his duty under the law to proceed with the computation and assessment of the tax. The certificate of the town clerk that the judgment had been allowed by the board of auditors for payment through the means of the annual taxation would have been one way, and, perhaps, the most appropriate way of furnishing the information which the County Clerk needed, but it has nowhere been made the only lawful When, therefore, the town clerk refused to way: and forward such a certificate, there was no legal impediment to the employment of some other means to give the County Clerk notice of what his duty required of him in the premises. The certificate of the town clerk was not in this case any more a condition precedent to the action of the County Clerk than it was under the requirements of section 12. 3. As to the certificate of the auditor of public accounts. This, like the certificate of the town clerk, is only one way of informing the County Clerk of what his duty under section 13 requires. It is not any more than the certificate of the town clerk, an indispensable prerequisite to the action of the County Clerk. 4. As to the injunction. The relator was not a party to the suit in which the injunction was obtained and, consequently, is not bound by it. Having estab STATE OF LOUISIANA, ex rel. NEW OR- Where the prayer of a petition for mandamus was that a city might be required to exhaust its powers Submitted Apr. 25, 1883. Decided May 7, 1883. IN of Louisiana. On the 13th June 1878, the relator recovered judgment in the Fourth District Court of New Orleans against the City of New Orleans, for the sum of $113,368.85, with interest, for lighting with gas the City and its public buildings. The City having failed to provide for the payment of the judgment in its annual budget for the year 1879, the relator, on the 22d of September, 1879, applied to the said Fourth District Court for a mandamus, to compel the City to appropriate certain expected revenues to the payment of its floating debt, of which the judgment constituted a part. The scope of this application was enlarged by a supplemental petition, in which it is alleged that during the whole period embraced by the contracts aforesaid, the City had the power to levy taxes to to levy tax to pay bonds or interest on bonds. See note NOTE.-Mandamus to compel city, town or county to The Mayor v. U. S., 76 U. S., XIX., 704. the extent of one and three quarters of one per | is for a writ requiring the council to do all it cent, and that the limitation of the taxing power has in law the power to do to raise the money to to one and one half per cent by the premium pay the relator's demand, no right has been deBond Act, known as No. 31 of the year 1876, nied. While the court might have defined in was inoperative and void, so far as it affected more exact terms the precise power to be exerthe rights of the relator, and the said Act im- cised, its omission to do so is not ground for paired the obligation of the contracts aforesaid, appeal to our jurisdiction. in violation of the 10th section of article first of the Constitution of the United States. The two petitions combined, contain a prayer that the city administrators include in the next annual budget of receipts, the expected revenues above referred to, and include in the next annual budget of expenses the aforesaid judgment of relator, and all judgments previously registered, and provide for their payment out of the expected revenues, and if necessary to exhaust their powers of taxation, and continue to do so until the judgment of the relator is paid. The district court rendered a judgment, commanding the City officers to put the relator's judgment and all previously registered judgments on the next annual budget, and to provide for their payment, "In the order in which they are registered, through and by means of all taxes imposed, collected or held for current city expenses, not levied or collected in pursuance of law for some other specific purpose; and in order to insure a sufficient fund to provide for the payment of said judgments, to exhaust their powers of taxation, and continue to do so if necessary, until the judgment of the relator is paid and satisfied," and all other relief is denied. This judgment was affirmed by the Supreme Court without change. A rehearing, to have the judgment made more specific, was then asked and refused. Whereupon, the relator sued out this writ of error. Messrs. Thomas J. Semmes, Henry C. Miller and John Finney, for plaintiff in error. Messrs. C. F. Buck and E. H. McCaleb, for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court: We have no jurisdiction in this case. No title, right, privilege or immunity set up or claimed by the relator under the Constitution of the United States has been denied him by the judgment of the court below. The prayer of the petition for mandamus was, among other things, that, in order to secure a sufficient fund to provide for the payment of certain judgments in favor of the relator against the City of New Orleans, the council of the city might be required, if necessary, to "Exhaust their powers of taxation, and continue so to do until relator's judgment is paid and satisfied." No request was made in the petition for a determination of the extent of the power of taxation for the purpose specified. A judgment was entered in the court of original jurisdiction granting the writ in the exact form prayed for. This judgment was affirmed by the Supreme Court of the State, on appeal. After the judgment of affirmance was entered, a rehearing was asked, in order that the judgment of the court of original jurisdiction might be made more clear and specific. This was refused. No right to any specific rate of taxation has been denied. That question has been left unsettled, and there was nothing in the pleadings which required the court to do more than it has done. As the judgment❘ It follows that the writ of error in this case must be dismissed for want of jurisdiction, and an order to that effect is made. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. (See S. C., Reporter's ed., 567, 568.) Review of state judgment. viewed in this court, unless the writ of error is No judgment or decree of a state court can be rebrought within two years after the entry of the judg ment. The writ of error is not brought in the legal meaning of the term, until it is filed in the court which rendered the judgment. Submitted Apr. 26, 1883. Decided May 7, 1883. [No. 288.] IN ERROR to the Supreme Court of the State of Louisiana. The case is sufficiently stated by the court. Messrs. J. W. Scarborough, Quinton Cor wine and Talbot Stillman, for plaintiff in error. No counsel appeared for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: The final decree in this case was rendered on the 13th of July, 1878, and while the writ of error was allowed by the Chief Justice of the Supreme Court of Louisiana, and a bond approved and citation signed on the 5th of July, 1880, the writ of error was not actually issued until the 14th, and the copy was not lodged in the clerk's office until the 16th of that month. No judgment or decree of a state court can be reviewed in this court, unless the writ of error is brought within two years after the entry of the judgment. R. S., sec. 1008; Cummings v. Jones, 104 U. S., 419 [XXVI., 824]. In Brooks v. Norris, 11 How., 207, it was decided, Chief Justice Taney speaking for the court, that "The writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the Act of Congress must be calculated accordingly." This case is cited with approval in Mussina v. Cavazos, 6 Wall., 360 [73 U. S., XVIII., 812]. It follows that the writ of error in this case was not brought within the time limited by law, and we have, consequently, no jurisdiction. For that reason the writ is dismissed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. Cited-113 U. S., 83. THE STEAMSHIP BELGENLAND, ETC., Appt., v. THEODORE JENSEN, Master, ETC. (S. C., Reporter's ed., “The Belgenland" with Ex parte Warden, 157.) Lien of decree on stipulators' property. Where a decree was entered against stipulators and their principal under section 941 of the Revised Statutes which was stayed by a supersedeas bond on appeal, if the decree operates as a lien on the real estate of the stipulators, notwithstanding the appeal,it is an advantage the law gives the appellee for his security, with which this court will not interfere in advance of the hearing of the case on its merits. [No. 788.] Submitted Apr. 23, 1883. Decided May 7, 1883. AP vania. States for the Eastern District of PennsylAfter the denial by this court of the petition for a writ of mandamus in Er parte Warden, ante, 685, the stipulators filed the present motion for relief from the operation of the decree of the court below, as a lien upon their real estate. Mr. Morton P. Henry, for the stipulators, in support of motion. Mr. Henry Flanders, for appellee, contra. Mr. Chief Justice Waite delivered the opinion of the court: This motion is denied. The decree appealed from was against the respondent and his stipulators. If the decree operates as a lien on the real estate of the stipulators, notwithstanding the appeal, it is an advantage the law gives the appellee for his security, with which we ought not to interfere in advance of the hearing of the case on its merits. Whether there is such a lien we do not decide. That is a question which is not presented to us for determination by the appeal. True copy. Test: After several Terms of said court had intervened, the defendant filed a petition for the removal of the cause into the court below. Subsequently, that court entered an order remanding the cause, on the ground that, at the time of filing the petition for the removal, the parties were both citizens of the State of Ohio, whereupon the defendant appealed to this court. Mr. T. D. Lincoln, for appellee, in support of motion: At the commencement of the suit, the plaintiff was a citizen of New York, but at the time of filing the petition for removal, and for seventeen months before, both parties were citizens of Ohio. This precise question, so far as we can find, by Judge Baxter. 9 Fed. Rep., 540. has never been determined by any court, except We do not find that the very question here now presented, has ever been before this court, though Judge Baxter, in his opinion, says that in Ins. Co. v. Pechner, 95 U. S., 185 (XXIV., it has been twice presented in argument, once 427), and again in Bondurant v. Watson, 103 U. S., 285 (XXVI., 449). that the citizenship in different States must be In the following cases it has been decided in no one of them was there any intimation that shown at the time the suit was commenced, but time of the filing of the petition for removal. such citizenship must not continue up to the Beede v. Cheeney, 5 Fed. Rep., 389; Kaeiser v. R. R. Co., 6 Fed. Rep., 5; Holden v. Ins. Co., 46 N. Y., 6; Tapley v. Martin, 116 Mass., 275; Ind. R. W. Co. v. Risley, 50 Ind., 64. In the following cases it has been directly held that the citizenship, in different States, must be at the place of filing the petition for removal, and that it need not be alleged as of the commencement of the suit. Wehl v. Wald, 17 Blatchf., 346; McLean v. R. Co., 16 Blatchf., 317; R. R. Co. v. McComb, 9 Rep., 569; Jackson v. Ins. Co., 3 Woods, 417; Johnson v. Monell, 1 Woolw., 397; Curtin v. Decker, 5 Fed. Rep., 386; Ins. Co. v. Saettel, 33 James H. McKenney, Clerk, Sup. Court, U. S. Ohio St., 280; Jackson v. Ins. Co., 60 Ga. 427; Nye v. R. Co., 24 Hun, 557; Dill. Rem. of Messrs. George Hoadley, E. M. Johnson, Edward Colston and Thomas McDougall, for appellant, contra. Mr. Chief Justice Waite delivered the opinion of the court: In this case, the court below decided that under the Act of March 3, 1875, ch. 137 [18 Stat. at L., 470], there could not be a removal to the Circuit Court of the United States, of a suit in a state court between parties who were citizens of different States when the suit was begun, if when the petition for removal was filed the parties were all citizens of the same State. To re APPEAL from the Circuit Court of the United verse an order remanding a suit on that ground, this appeal was taken. States for the Southern District of Ohio. On motions to advance, to dismiss or affirm. Under the Judiciary Act of 1789, sec. 12 [1 This action was brought in the Superior Court Stat. at L., 73], it was held in Ins. Co. v. Pechof Cincinnati, by the appellee, to recover pos-ner, 95 U. S.,183 [XXIV., 427], that there could session of and judgment upon certain promis- not be a removal unless the necessary citizensory notes for sums amounting to $50,000. ship existed when the suit was begun. Act provided only for a removal on the application of the defendant when the plaintiff was a citizen of the State in which the suit was 52 825 NOTE-Removal of causes under Act of 1875; citizenship. See note to Removal Cases, 100 U.S., XXV., 503. 108 U.S. U. S., Book 27. That brought, and the defendant was required to file his petition for removal at the time of entering his appearance in the state court. Under such circumstances, changes of citizenship, after the suit was begun and before the time for applying for a removal, would not often occur. The Act of 1875 is radically different from any which preceded it. Under that Act either party may petition for removal and neither party need be a citizen of the State in which the suit was brought. The material language is as follows: * * "That any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, in which there shall be a controversy between citizens of different States, suit into the Circuit Court of the United States for the proper district." * # * of opinion, unless there has been a final judgment in the circuit court; but, if it is a criminal proceeding, it has before judgment. 2. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. 3. When there is a criminal prosecution against one, a writ of habeas corpus which he has obtained to inquire into the legality of his detention thereon, is not a proceeding in that prosecution, but is a new suit to enforce a civil right. and a Treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right, the proceeding on his part is a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. [No. 1230.] 4. Where a petitioner claims that the Constitution either party may remove said Advanced and submitted Mar. 19, 1883. Decided May 7, 1883. In order to obtain the removal, a petition therefor must be filed in the state court at or before the term at which the cause could be first tried, and before the trial. In the present case, the petition was not filed until nearly two years after the commencement of the suit. The construction of the Act is by no means free from doubt, but on full consideration we are of opinion that the requirement of the old | law, that the necessary citizenship should exist when the suit was brought, was not abolished. We cannot believe it was intended to allow a party to deprive a state court of the jurisdiction it has once rightfully acquired over him by changing his citizenship after a suit is begun, and that would be the effect of the law if the right of removal is made to depend only on the citizenship existing at the time a removal is applied for. But we are also of opinion that because of the extension of the time for applying for removal, and because neither party need be a citizen of the State in which the suit is brought and either party may apply, it was the intention to provide that the controversy should be between citizens of different States at the time of the removal. In this way, the jurisdiction of the Circuit Court of the United States will only attach when there shall be a controversy between citizens of different States at the time the suit is transferred, and the right to the transfer will depend on the citizenship, when the suit was begun and when the petition for removal is filed. We, therefore, hold that a suit cannot be removed from a state court under the Act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. The order remanding the cause is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. Cited-111 U. S., 360, 381. Ex Parte: In the Matter of TOM TONG, Petitioner. (See S. C., Reporter's ed., 556-560.) Jurisdiction on certificate of division of opinion -civil and criminal proceedings-habeas corpus a civil proceeding. 1. In a civil suit or proceeding, this court has no jurisdiction of a question certified on division ON Na certificate of division in opinion between the Judges of the Circuit Court for the District of California. On January 16, 1883, Tom Tong, the petitioner, a native of China, and subject of the Emperor, petitioned the Circuit Court of the District of California for a writ of habeas corpus, alleging that he was in custody and unlawfully imprisoned and restrained of his liberty in contravention of the Constitution of the United States and of a certain Treaty entered into between the Emperor of China and the Govern ment of the United States, of February 5, 1870, commonly known and called the Burlingame Treaty, 16 U. S. Stat. at L., 740, which unlawful restraint and imprisonment consisted in this: that, on or about Oct. 21, 1882, the board of supervisors of the City and County of San Francisco, passed a certain order known and designated as order No. 1691, regulating the licensing, establishment and maintenance of public laundries and public wash houses within certain limits in the City of San Francisco. That the ordinance was enacted, not for any legitimate police regulation or sanitary purpose, but for the purpose and with the intent of excluding the subjects of the Emperor from carrying on or conducting the business of a laundry within certain limits of said City of San Francisco; that he is ready and willing to pay the license fees provided by the ordinance of said board of supervisors, and to pay all lawful charges, taxes, licenses or assessments required by the laws of the State of California or the laws of the United States, in order to carry on and conduct the business of a laundry; that said board of supervisors will not grant nor permit any of the officers in the ordinance specified to grant to him any of the authorizations mentioned in it; that, while so unable to procure the authorizations mentioned and required by the ordinance, and while he was lawfully carrying on and conducting his business of laundry in said City and County of San Francisco, on the 15th of January, 1883, one James Galbraith filed a complaint in writing in the police judge's court in said City and County of San Francisco; that a warrant, in due form of law issued on said complaint and under and by virtue of such warrant, he is unlawfully imprisoned and restrained of his lib erty, and he is now held in custody by Patrick Crowley, Chief of Police of said city and county. Upon this application a writ of habeas corpus was issued, and return thereto was made setting up that the petitioner was restrained and imprisoned under and by virtue of the warrant alleged in the application. Sec. 753, R. S.; Ex parte Bridges, 2 Woods (C. C.), 430; In re Wong Yung Quy, 6 Sawy., 242; Ex parte Turner, 3 Woods (C. C.), 610. Messrs. L. D. Latimer and J. D. Sullivan, for respondent: The facts stated in the petition did not justify the issuance of the writ. Calder v. The case was then argued by counsel and submitted to the court, when the Circuit and District Judges, being opposed in opinion, cerBull, 3 Dall., 386; Satterlee v. Mattified that they were opposed upon the follow-thewson, 2 Pet., 380; Jackson v. Lamphire, 3 ing points: Pet., 289. Mr. Chief Justice Waite delivered the opin 1. Whether, upon the facts stated in the petition filed in this case, a writ of habeas corpus, ought to have been issued by this court, accord-ion of the court: ing to the prayer of said petition. 2. Whether, upon the facts stated in the petition, and in return to the writ issued herein, said petitioner ought to be discharged from custody. 3. Whether, assuming said ordinance set out in the petition herein to be void, the petitioner is in custody in violation of the Constitution, or of a law or treaty of the United States within the meaning of section 753 of the Revised Statutes of the United States, and whether he ought to be discharged on that ground. 4. Whether, assuming said ordinance to be void, the court is forbidden to discharge the petitioner, by the provisions of section 753 of the Revised Statutes of the United States. 5. Whether the ordinance set out in the petition in this case is void, on the ground that it does not fix any terms or conditions, upon complying with which the petitioner and others similarly situated are entitled absolutely to a license to pursue their calling, but still leaves it in the discretion of the Board of Supervisors to pass or to refuse to pass a resolution granting a permit, or authorizing the issue of a license, the ordinance only allowing the board of supervisors to pass a resolution granting such permit, or authorizing the issue of a license, in its discretion, after the applicant has performed all the conditions prescribed by said ordinance, without making it obligatory upon the board to pass such resolution. 6. Whether the ordinance set out in the petition is void, on the ground that it is unreasonable in its requirements, or upon any other ground apparent upon the face of the ordinance, or appearing in the petition and return, or in the record herein. Messrs. S. F. Phillips, Hall McAllister and Thomas Simmons, for petitioner: 1. The United States had constitutional power and authority to enter into the Treaty with the Emperor of China, already referred to, and that Treaty is the Supreme law of the land. 2. The Treaty guarantied to the petitioner the right to exercise his vocation, and the ordinance in question is in violation of the provisions of the Treaty and the Constitution of the United States. 3. That, being held in custody for violation of the provisions of the ordinance, thus in contravention of the provisions of the Treaty, he is in custody in violation of the Constitution of the United States, and of the provisions of the Treaty. 4. That, being thus unlawfully restrained of his liberty, the circuit court had lawful jurisdiction to award the writ and discharge the petitioner. This is a writ of habeas corpus sued out of the Circuit Court of the United States for the District of California by the petitioner, Tom Tong, a subject of the Emperor of China, for the purpose of an inquiry into the legality of his detention by the chief of police of the City and County of San Francisco, for an alleged violation of an order or ordinance of the board of supervisors of such city and county regulating the licensing, etc., of public laundries, and the case comes here, before judgment below, on a certificate of division of opinion between the Judges holding the court as to certain questions which arose at the hearing. The allegation in the petition is that the order, for the violation of which the petitioner is held, is in contravention of the Constitution of the United States and of a Treaty between the United States and the Emperor of China. A question which meets us at the outset is, whether we have jurisdiction; and that depends on whether the proceeding is to be treated as civil or criminal. Section 650 of the Revised Statutes provides that whenever, in any civil suit or proceeding in a circuit court, there occurs a difference of opinion between the judges holding the court as to any matter to be decided, ruled or ordered, the opinion of the presiding judge shall prevail and be considered the opinion of the court for the time being; and section 652, that when final judgment or decree is rendered, the points of disagreement shall be certified and entered of record under the direction of the judges. That being done, the judgment or decree may, under the provisions of section 693, be brought here for review by writ of error or appeal, as the case may be. By section 651 it is provided that whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court and the judges are divided in opinion, the point on which they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified under the seal of the court to this court at its next session. It follows, from these provisions of the statutes, that, if this is a civil suit or proceeding, we have no jurisdiction, as there has been no final judgment in the circuit court, but, if it is a criminal proceeding, we have. The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes; but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are |