The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-11-14

processes for witnesses writings, returnaOle at
time and place to be named in such process,
which shall be served and enforced in like manner
as similar process from courts of law is served
and enforcedi but before issuing such process the
Court or Judge shall be satisfied by affidavit or
| otherwise of the materIality of such testimony.
Under this law, as under the PennsylVanla
statute, which is somewhat similar in its proYl-
sions, the Judge will look beyond the commitment
in criminal case and hear extrinsic evidence ana
go into an examination of facts in order 70 asceI-
tain whether there is sufficient legal cause Ior tne
| detention or confinement Such has been the con-
strucion of the act of 1918 in MaulsOy case; 10
Md. 637. 1t was said, with the appreciation OF the
| Court of Appeals, "where party is committed
upon mesne process, or upon charge OF grimes ~
competent for the Judge ,h une
| be in due form and by competent oncer, 10 ex-
anime testimony and to determiaes upon tne proof
exhibited to him, the real ground OF tne accusation,
| and to bail or discharge the prisoner.
In their cases all errors in pleading have been
| waived, and the evidence adduced must be con-
sidered not for the purpose of trying the case and
declaring upon the guilt OF innocence of the par
| ties accused My office under the writ stops far
short of that, and casts upon only the duty of
| deciding whether, upon the return and the proof,
there is any probable ground for the accusation, or
whether the arrest and detention without sufn-
cient cause. As the charges against these petit
toner's set forth in the returns, different, and
rest upon different proof, must now consider the
cases separately.
First.As to the charge against conspiracy
against Young and Valiant
This has been already fully set ont as contained
in the warrant that was issued, upon oath, by
court of competent jurisdiction, and Is sufficient in
be no doubt that without reference TO the title OF
Young and valiant to the office OF Police Oom-
missioners, and assuming that they were de Jure
entitled to the office, andde acto in the exercise of
their duties such, the conspiracy charged IN this
warrant would be an indicta3le ohence' a IoTei-
ings and property held by them, however wrong
fully, would be an indctable offence as tending TO
breach of the peace and it is settled in the State
vs.. Buchanan, II. and J. 3l7, that a conspiracy
to do any unlawful act is an indictable offence.
The Court says there is nothing in the objection
n punisl a when the
accomplished would not be TO punish mere un-
expecled Intention IL is not the bare intention
that the law Furnishes, but the act of conspiracy,
which is made substantial offence by the nature
of the object intended to be effected.
Looking to the testimony of Fuller and Ball as
to the declaration of Valiant with regard to the
intentions of himself and Young, taken in connec-
tion with the accompanying facts and circum-
stances, am OF the opinion that there is probable
cause shown for their arrest and detention under
this CHARGE and that it is my duty TO hold them TO
bail to answer the same. The Criminal Court, also,
has full jurisdiction and authority to hold them to
bail to keep the peace in the ordinary and legal
form.
1t appears however, from the return before me,
that the Judge of the Criminal Court passed the
following order (order read, and this warrant of
the commitment Is set out in the return as legal
cause for the detaner of these petitioners.
1t is difficult to understand by what authority
tne Judge OF the CTlnlnal Oourt passed TINS order
None OF thelcounsel who nave appeared in sup
port of the return have suggested any sound or
even plausible reason by which the exercise of
such power and jurisdiction by that Court can be
supported Under the guise OF a recogni2ance to
keep the peace this order is, in reality, special
injunction restraining these petitioners from
cising public office until their title is tried and
decided by law. Certainly 1t requires no argu-
ment to show that the Criminal Court had no
power to pass such an order, or TO commit the par
ties Jail for refusing TO comply with it. and that
such commitment can furnish no legal cause for
their detainer.
In order fully to understand the effect of this
order, and the circumstances under which it was
passed, IL is necessary to advert to the facts dis
closed in the evidence before me.
Under the police law of the city of Baltimore the
second code, sections SOC to s32 and the amend
ments thereto by the act of 1862, ch. l3l, Samuel
Hindes and Nicholas J.. Wood had been elected by
the General Assembly Police Commissioners, and
were duly commissioned, qualified and acting rs
such by the act of 1862, under which they held
their Office, it is enacted: "For official misconduct
any of the said Commissioners may be removed by
a concurrent vote of two-thirds of the two houses
Of the General Assembly, or by the Governor
during the recess thereof"
Complaints of official misconduct against Hindes
and Wood being made to the Governor, he pro-
ceeded in accordance with the 18th and 14th sec
uonS of Article IL of the code, and after hearing
the evidence and arguments OF counsel on both
sides, adiudged and decided that the parties COM
planned against were guilty OF official misconduct,
as charged, and passed the judgment and order re-
moving from office. A copy thereof, under the
great seal of the State, was served upon them, and
the Governor thereupon, under his power to I'LL
vacancies in the Board, appointed these petitioners,
valiant and Young police commissioners, SIC the
the place OF Wood, and commissions were deli
vered TO Them on the second day of November. On
the same day they were qualified by taking the
official oaths prescribed by the constitution and
laws They then proceeded to the Office occupied
by the Police Commissioners, but failed TO find
Them or TO gain admittance to the Mayors office.
The next morning the visit was repeated with the
same result, the place being guarded by policemen,
and personal interview refused whereupon they
established Office and addressed to Messrs.
Hindes and " ood the following communication:
This has been heretofore published, as also the
address to the police force, issued on the ID inst)
They then proceeded to issue an order to the
Sheriff under the S6h section of the code, direct
ing him 10 summon a police force OF one hundred
men for the preservation of the peace OF the city,
when they were arrested under the warrants from
the Criminal Court, and then Sheriff Thomson,
one of the petitioners was also arrested.
1t thus plainly appears that at the time the
Criminal Court passed the order in question,
Hindes and Wood mad been actually removed from
the Police Commissioners by the act of the Go
vernon, in the exercise of their lawful authority
under the act Of 1862, and had been notified there
OF in the most solemn form, and these Oommis-
sIoners, Young and Valiant, had been duly ap-
pointed Commissioners and qualified to fill the
vacancies thus created, and entitled to exercise the
powers and perform the duties of their offices.
There cannot be any question of the Governors
power under the law 10 remove the incumbents,
II, in his Judgment the complaint of official mis-
conduct has been proved The law makes his
Judgment final and conclusive, and not subject to
appeal or review, any more than a similar judg-
ment passed by the General Assembly and remo-
val by the Governor during the recess. Their
powers under the law are identical, and their de-
cision alike final, conclusive and binding, and en-
titled TO the same obedience. For parties thus re-
moved to hold on with a strong hand and continue
10 exercise official power is TO resist the rlgn1uI
authority OF the Governor and put the law at deii-
ance.
1t has seemed to me necessary to declare my
opinion on this question as involved in the cons-
deraton OF the order passed by the Criminal Court
failure TO comply with which is now alleged on
the return as ground for OBTAINING the petitioners
in prison: Considering that the order was passed
without lawful jurisdiction authority, cannot
| remand the partes 10 prison hold them TO bail
| under it. In the case of William Thomson, the
sheriff, the Criminal Court passed the folio wing
/ order (alIea0V raag "A