New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1863-03-11

Az tuc BiodtoE irBoucfahJ ruPPopoo w ih'fu"e sns
less, we should say It did; If not, then pot.-ED.
SUPREME COURT-GRsERlL TaRM-MARcH g. Before
Justices SUTHERLAND, IsGRAHAx and CLyREE.
OPINIONS DELIVERED AT FEBRUARY TERN-rHg
POLICE AaggABLE TO PROCESS.
Joseph Hart sg John A. Kennedy Thsdsss Davis sna
De VIII c. Smith.
By THE Court SUTHERLAND, J.)-Ths 10 an
:sS. s s tho p.s I :
Tho defendant Kennedy is the supentendenI we
t tn. M gsus HsSsf Police: ss' '"'
An order Of .nest was granted by Justice Of this Court
ri. ayssr Of srrs, was on motion the defendants
order made at Special Tern vacated ns !. 20 bs
fsndanl smith, by reducing the amount OF oa reqrsdd
The case comes before us by tho appeal Of the a,otf rom
the order vcag dhgg the order OF arrest - to the
defendants Kennedy aud Davis and modifying ss 10 10
liner from the paper, tst neither Of he defendants had
der Of sr was made that the day Of the order Of
res. a. granted had been extended by az order for
The purpose Of snsbug defendants to make the motion
yacse he order before tho defendants should be sus.ed
By the 27ih section OF the act passed April TO- 1850 to
the MeFoPoss rHs nS pPaS. ~ TO-. ne
Of IN. police government of the Metropolitan Police District,
and M p'G@SG9s 1od ssa' tie pess ds q ps S
force empowered TO eusc,, modify and repea from time
in addition such other Iroyi be deemed exps
dent by said Commis,ioLer, there shall be particularly de-
fined enumeTsted sHd d,ron'ed the power. aad duties Of
the Superintendent Of police force ard Of the nspeeon and
Csp.sins police force &c. provided that such rules or reg
uaou. shall not conflict with shy Of the provbons OF this
amended with tie Constitution Of the United Safes
! Of hh Slte."
by the Jh section Of the i'me act t declared thst No
person holding Office under tia act shall be liable u military
jury doy ner to arrest on civil process o. to service Of
Il sppess from the affidavit Of tie dsisncaet kean.dy In
Of the a-troJ 0an Police ensosd passed
regulations general Discipline and that by section % OF said
Captain. sssean Of Police will be deemed to be swsys
| on duty -, =,
the order at speci, Term. wasting and modynrths
orde q, in hi. AID was conceded On the mFe
charged a. 70 the defendant. Kennedy and Davis the
ground Tia. the one was the su enttnden sna tte esne
and s,c IN pr,oDmsat. which the sn,s complains took
place, aud that having SUCH ~ .fs by the 14tn .on crime
Act and tie 6lh section OF tbs Hues and Res llsoon en-
acted or PACED BY the Commissioners under tue 2h section
ofs Act they were such officers free from Cd civil
process at a. times aud under all circumstance
lis fca.t 70 20. upon wba. other theory The cFdevs
log The order T. the defendants Kennedy and
Davis and modifying and retaining Il a. to the eeieSasa'
Smith could have been made.
plain ths. an error 20 vsca.e and dchnse ne
order the defendants Kennedy aud Davis on tbs ground
The 9ih section Of this by declaring that
holding Off under the shall be abls to sre'. on civil
plainly Pedy declares th.t hodiug 0ee under
The &C, shall liable TO .s.. civil process CT to service
OF s1bpenas, Ac.. while not actually on duty.
This section impiedy declares that no penon hoaet ofss
under shall DO deemed to be actually duty I'll
times under all ccustances 50 never 20 be liable
service OF subPeSas lille holding the Office
section Of the act 70 ensc, any rule or resu.on coreit
with ,ne 3h section The 27h section contains express
provi.o effect and Independent Of such Iovo they
would hsve mad no power pass bylaw rssss
ton Inconsistent with express provision oi lhe act confer
Bat DO not think the Goth section Of the regls
lions enacted by the Commissioners was intended TO interfere
with the section Of tho act was intended TO be st
rule matter re stlDg 10 discipline 1 teiweeD the
Commissioners and those heicins ONCE under them ~"
not Intended and cannot be deemed TO effect IN any manner
rights o. third parties under the h section o. he se
persoss holding scs under the act no actually
duty. a, ,..,,
would be extraordinary thing bold that the Super
nteHdeu Captain OF the Metropolitan fohee e-n At no
under any circumstances be served with snbpsrs o.
conpeed appesr and testify In civil court Gnd yet The
h section Of the act pisces the same restriction Oh the hight
The order at Special Term should De icsesed 30 fT"n
vacated order Of the dante keEnsdy and
DAVIS but 90 not know Why the other pa of The order
should uot q affirmed.
cLERsE, The Judge at Special Term gave no ee.c,
whatever the Goth section Of the general adopted oy
the Commissioners. declsins that the Superintendent In
specoIs osp,sia, and seisrsHts sLs be deeued AsEs
cred u M, Special Term that rule OF regulation Of the
COMMIT interfere ih the dsht Of eodt VI la'
tce de,' uine tho fact according to the evidence
But il ooueudod that from the nature and extent Of
the duties OF the superintendent and Captains the statements
in he shdAyit OF kennedy must be assumed ~ tue ths
Police been and ever is duty ..eeh :.
times OF tie day aud night Uol ~ aud that oil me
tai. III. district also duty all times, Jay add niya
without int, mission" was thoosLs that a.. hGsd a :.
tive statement the burden OF proof should fall on the plaintiffs
show thai 81 the Of the arrest civ, the
party arrested. the Superintendent or aCspan was .n
sgsd ia pursuit OF business or pleasure not within TIE
spEeTeNt his public dufieu
H. the language Of the opinion below potro have
interval, OF remission from duty nxed end sLo"n
be- aafne4 Il tie Superintendent 10 doubt he b. cct
hours or 'asng hi. meals snd skirg sleep but as be ha
ie who, force aud as hi. aud advice in city
tLs may DO necessary any time he liable 70 be eae- %
active dy at hour OF tie day or night % that Il 10 MT At
al unreasonable TO that ne Is always actually Though MT
actively oa duty"
er either in Lis Office his house deyisns plans and
thinking of distractions for the large orce under his com
nad when he ID awaiting applications for these instruction.
ready give them during hour OF the twenty fon
required and when not thus engased he Nn the nu-
neous stations in tho city repeat not At anres'
sonabe to acquesos in his statement unit the coo.
proved that he all times actually on duty
would Indeed be erroneous 20 hold that The Superintendent
or Cap,su Of The Police cannot at any time under any
circumstances be served with subpoena othcf process
Term cannot discover tina, held any thing bu. b.
did hold that those underworld. 20 compel sule irdct
Captain appear and ts those at whose sis no
arrested In civil ptcce,s shou show that he otne~
engaged duty u the time Of the service Of TIE PFC
the clear presumption brirg from the naafe nnd et
Of his duties, and nom his own sworn '~'en"a nA
Ike tie sentinel in his sentry box lie a"'s .''- o'
thnk that regard FOR the efficient government CT ss'
police force of this poRgeu' ely and desire i9i es
safety aud comfort render cki eiient 10 estsps' %
10 favor OF the SUI outendent and Captains rss
ulary when consider ths, II Is only raised 40 we Vo
proyi.ioas remedy tie allowance WHICH III any '1'r ~
IN great measure IN the sound discretion OF 'Ie ',cs
refuse altogether IL he thnAs the arrest nO'
huSl judgment of the Court Ii is no at all pooso'r
public officer holding position and performing uaes
those Of The superintendent OF tolco VIA MOI .'h'
auenable process snch be Issued 10 ehie'0''
lud ,tlent that may be- rendered agu lst him fiji.
Nevertheless Of affirming Tie oIoei o. ~"
Special Term 40 lar as the Superintendent and Col Mlh
concerned No OF the,c persons was setHAi, h,
the uaoion made TO aside the order oi .Iiss ~"
release them from arrest - .h.r
Therefore the plaintiff had opportunity OF bs'ps H
arrested " hon duy, that the pEihsps.
Which the decision OF tho special Tenn founded He
plicabls 10 the present motion ,.u
Tho order II Special Term shculi be reversed 20 'i
ated order OF the defendants ho"e''
Davis but should be ai ned A. e. the otnef a, 10
lSGRAlAs Il concur I reversing the order o'"" . "
Il IL. IA