U.S. Supreme Court
Ex Parte Tom Tong, 108 U.S. 556 (1883)
Ex Parte Tom Tong
Decided May 7, 1883
108 U.S. 556
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? "
"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? "