I concur in the result of Judge McLAUGHLIN'S opinion. The ordinance is not unconstitutional (Comm. v. Davis,162 Mass. 510; Davis v. Mass., 167 U.S. 43). The wrong, if any, is in its administration (People ex rel. Nechamcus v. Warden, etc.,144 N.Y. 529, 539). The mayor refused a permit, it is said, because the applicants were Socialists. If that is so, he was guilty of a grave abuse of power. Remedies there are for a victim of such oppression, but upon the record now before us habeas corpus is not one of them. The inquiry upon that writ is to be confined to the single *Page 104 point of jurisdiction. So confining it, we find that the relators have been arraigned before a magistrate, who, in committing them to custody, has acted on a sworn information sufficient on its face. The information charged the holding of a public meeting without the permit prescribed by law. Jurisdiction was thus conferred to arrest and hold for trial, even if the assumption be permissible that arbitrary refusal of the permit, a fact, if it be one, unknown to the magistrate, would be matter of defense (Biddinger v. Commissioner of Police, N.Y., 245 U.S. 128,135). Habeas corpus tests the mandate under which prisoners are held. It is not a substitute for a trial to determine innocence or guilt (Glasgow v. Moyer, 225 U.S. 420; Horner v. U.S.,143 U.S. 570).
Nothing to the contrary was held in Yick Wo v. Hopkins (118 U.S. 356). There the vice in the ordinance was not "the consequence of adventitious circumstances" (People ex rel. AlphaPortland Cement Co. v. Knapp, 230 N.Y. 48, 58). Its prohibitions had been cunningly framed to reach a single class. Discrimination was its very purpose. No process that was valid could ever be issued under it. That is not the situation here. Inequalities, if they have here developed, are the result, not of the fulfilment, but of the perversion of the mandate of the ordinance.
My vote is for affirmance.