The proceedings under a petition for habeas corpus are in their
nature civil proceedings, even when instituted to arrest a criminal
prosecution and secure personal freedom, and the appellate revisory
jurisdiction of this Court is governed by the statutes regulating
civil proceedings.
As the statute authorizes a certificate of division of opinion
between judges sitting in circuit only after final judgment in
civil proceedings, the court cannot take jurisdiction under a
certificate by which it appears that there was a difference in
opinion between the judges as to the points certified, without
entry of final judgment.
The petitioner was proceeded against criminally in the Police
Court of San Francisco for a misdemeanor in unlawfully
establishing, maintaining and carrying on the business of a public
laundry. Being restrained of his liberty under this process, he
applied to the Circuit Court of the United States for the District
of California for a writ of habeas corpus. The judges certified a
difference of opinion upon the following questions.
At the hearing of said case at the present term of this Court
upon the said papers and record there, occurred as questions
arising on said record:
"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 according to the prayer of said petition? "
Page 108 U. S. 557
"2. Whether, upon the facts stated in the petition and in the
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 refuse to pass a resolution of the board of
supervisors to pass or 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? "
Page 108 U. S. 558
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
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.
Page 108 U. S. 559
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
951, 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 civil proceedings, and
proceedings for the punishment of crimes are criminal proceedings.
In the present case, the petitioner is held under criminal process.
The prosecution against him is a criminal prosecution, but the writ
of habeas corpus which he has obtained is not a proceeding in that
prosecution. On the contrary, it is a new suit brought by him to
enforce a civil
Page 108 U. S. 560
right, which he claims, as against those who are holding him in
custody, under the criminal process. If he fails to establish his
right to his liberty, he may be detained for trial for the offense;
but if he succeeds, he must be discharged from custody. The
proceeding is one instituted by himself for his liberty, not by the
government to punish him for his crime. This petitioner claims that
the Constitution 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. Such a proceeding on his part is in our opinion a civil
proceeding, notwithstanding his object is, by means of it, to get
released from custody under a criminal prosecution. It was said by
Chief Justice Marshall, speaking for the Court, as long ago as
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 101:
"The question whether the individual shall be imprisoned is
always distinct from the question whether he shall be convicted or
acquitted of the charge on which he is to be tried, and therefore
these questions are separated, and may be decided in different
courts."
The questions that may be certified to us on a division of
opinion before judgment are those which occur on the trial or
hearing of a criminal proceeding before a circuit court. It follows
that we cannot take jurisdiction of the case in its present form,
and it is consequently
Remanded to the circuit court for further proceedings
according to law.
