L. B. CROOMS, PLAINTIFF IN ERROR,

v.

C. FRED SCHAD, AS MARSHAL, DEFENDANT IN ERROR

Taylor, J.,

(after stating the facts.) At the hearing before the court commissioner the respondent Marshal, moved to quash the writ of habeas corpus upon the ground®:

1st. The petition upon which said writ was issued does not set forth facts which show sufficient probable cause for the granting of said writ.

2nd. The facts alleged in the petition upon which said writ was issued show affirmatively that petitioner is not entitled to the relief prayed.

This motion to quash the court commissioner denied,, but afterwards made an order, as already stated, remanding the petitioner to custody and denying his application for discharge from custody. It is contended here that this motion to quash was equivalent to a demurrer to the petition, and that upon its denial the petitioner should have been discharged, as such demurrer was an admission of the truth of all the facts set up in the petition.

This contention is without merit. . We know of no such practice as that of moving to quash a writ of habeas corpus because of defects in the petition upon which it was issued. The inquiry in such cases is not as to the technical formailty of the showing made to the court for the issuance of the writ, but as to the legality of the alleged detention of the prisoner. In such inquiry the parties are not limited to the matters specifically set forth in the petition for the writ, but may go outside of these and. enquire into any matter that affects the legality of the detention. The writ of habeas corpus is a writ of right and is sometimes issued upon very informal application. In the history of this court such a writ was issued t>y this court upon receipt by it of an informal letter from a colored prisoner in jail, and upon the healing he was discharged from custody. Ex Parte Pells, 28 Fla. 67, 9 South. Rep. 833. But however this may be, even if the commissioner erred in denying the motion to quash the writ of habeas corpus, he' was at liberty afterwards to correct the error by remanding the prisoner as he did do, and the petitioner was not damnified by such subsequent correction.

It is contended that the City Council had no authority to enact the questioned ordinance. This contention is untenable. Section 18 of Chapter 4513 Laws of 1895, that embraces the charter of said City of Pensacola, provides as follows: “The council shall have power to pass, for the government of the city, any ordinance not in conflict with the constitution of the United States, the constitution of Florida, and statutes thereof.” Section 17 of the same chapter provides that: “The council shall have power to pass ordinances imposing fines not exceeding five hundred dollars for any designated misdemeanor, or imprisonment for not exceeding sixty days or both.” Under these two sections we think it clear that said city was empowered to enact and to enforce the questioned ordinance.

It is next contended that section seven of the ordinace «excepting nurses in charge of children or invalids of the «other race from the provisions of the ordinance is an unreasonable classification of persons. The main purpose -•of the ordinance is to separate the races on street cars, l)ut that this section seven, excepting nurses from its pro visions, being an unjust and unreasonable classification defeats the whole purpose of the ordinance by permitting nurses of either race to .ride in the compartment or car devoted to the opposite race., when in charge of children or invalid® of such opposite race.

There is no merit in this contention. The fact that children and invalids require the constant care and attention of their nurses makes it highly reasonable that a law making provision for the separation of the races should make an exception that would prevent the separation of such children and invalids from their nurses. Magoun v. Illinois Trust & Saving Bank, 170 U. S. 283, 18 Sup. Ct. Rep. 594; Dell v. Marvin, 41 Fla. 221, 26 South. Rep. 188; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 363, 27 South. Rep. 221; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. Rep. 1138; Anderson v. Louisville & N. R. Co., 62 Fed. Rep. 46. The statutes in both of the two last cases cited made the same exception of nurses as does this ordinance, and in neither of them were the acts held to be invalid because of such classification and exemption.

We have just decided at the present term the case of Andrew Patterson, Plaintiff in Error, v. Isham Taylor as Jailor, Defendant in Error, involving the validity of an ordinance of the City of Jacksonville that contains substantially the same provision as the one under discussion in this case, with the exception that the ordinance of Jacksonville involved in that case makes no exception in favor of nurses as does the Pensacola ordinance in this case. The same assaults were made upon the Jacksonville ordinance in that case that are made in this case, with the exception of the contentions herein above already discussed, and what is said in that case as to all the other questions involved in this case applies with equal force to this case, and is fully decisive thereof.

Finding no error in the record the judgment of the Circuit Court in this cause is hereby affirmed at the cost of the plaintiff in error. Shackleford, C. J., Cockrell, Hocker, Whitfield and Parkhill, JJ., concur.