, 1873-03-07
An Interesting TEST }slse Growing Out
Of The Revocation Of
License.
The Matter Of Appointing an As
signee for the Commercial
Insurance Company.
Illegal Imprjsonment---Bank-
ruptcy Matters---Com-
mon Law Files.

General Notes from All the Courts
---Eecord Of New Suits.
L case OF came up yesterday afternoon, before
Judge Gary, which is Of some interest, from tht
fact that the real point involved is whether tht
=. Mayor has power to revoke the license Of auc
4ioneer. From the case argued upon between
Gen. Stiles, On behalf of the city, and Messrs
Know1ton and Felker, for the relator, it appears
that II. r. Rosenbach obtained. by transfcr from
the former holder, license to carry On business
as IN auctioneer, which he did at No. SO Water
street. Subsequently he got new 1cense- IN
the 18th OF January his license WAS revoked by
the Mayor, on the grounds Of alleged violations Of
the law. He still continued selling goods, and
last month Was arrested by q policeman
without warrant for SO doing, and VAS held By
Can't. Trench to await the action OF the Police
Court, In order to test the question, Rosenbach
applied to Judge Gary for writ OF habeaa
corpus.
Gen Stiles stated that the first two points to
be considered we're, whether the man Was law
fully arrested and, it so, whether he could be
lawfully detained to bc tried Oh the charge OF
vio1ating the ordinance.
Judge Know1ton said they did not suppose that
the charter authorized any officer to arrest an
individual without process simply because he
WEE selling goods at auction The seventh
section OF .he charter said all persons breaking
the peace could be arrested without warrant.
Was selling Of goods at auction threatening to
break, or breaking, the peace7 Was that the
only section Gen. Stiles relied on?
The General said 1t was. There WAS common
law authority, however, for it. He referred to
cases in the 18th Illinois and Sd Gilman, the for
mer holding City Marshal could arrest without
warrant.
The counsel for the relator referred to cases
in Sd Scammon, md l4th, 18th, and 23d Illinois.
The Court pondered over the various cases re-
ferred to for time, and also over the provision
OF the city ordinances that policeman may ar
rest all persons caught in the act Of violating
any law or ordinance Of the city, or aiding or
abetting therein. =.
. Judge Knowlton said, conceding the Council
had the power to pass such an ordinance. could
the language be 60 construed Of an arrest with
out process 4 fair Interpretation would not
authorize an arrest for violating acty ordinance.
It gave the police power to make an arrest when
there was 4 process.
The Court referred to . case where the Su-
preme Court had sustained the exercise otpoWer
By policeman making an arrest without WAT,
rant, under . city ordinance; q but aald he would
not decide the matter just then.
Judge Knowlton'a next proposition Was, that
arrest could be made without warrant only where
the act was prohibited at all times and under al
circumstances. II ,he oct vas ono which might
or might not be lawful, like keeping an auction
store then the policeman could not arrest with
- out warrant. Nor could the Legislature invest
any one with power to determine whether man
was acting as auctioneer without License. It
11fGn
II the act was one which the Council could
totally prohibit, tho case would be different
City governments had only tho.powers expressly
given them, except where one power was neees-
s.ry to carry out another, which was given. The
Council was given the power to issue auction
licenses. The power to revoke and annu1 them
was very different one. :;
Gen. Stiles said he should hold there had been
no valid license in the first place.
Judge GARY suggested doubt whether it vas
propor for him, having decided the man WAS
lawfully arrested, to step in between the arrest
and the trial before q court OF competent 1nrls-
diction, and determine it should not Try him,
since he ought to be acquitted
Judge Knowlton protested against any such
position. He was trying to get decision on
points Of law, not matters OF fsct. He wanted
decision as to the authority Of the Council to
authorize any one to revoke licenses; The Leg
islatu1e did not intend to give the Mayor judi
cial power, to decide whether q license should be
revoked That power, not being granted, WAS
withheld. In the present case, LQ8 AlaTUI Ii &c
rnser % nTosecntor, Witness. Judge, and exeou-
ioner. The Legislature could not, II
It would. give judicial power to minis
terial officers 4 license once. granted
could not be revoked, except through the courts.
He Here read from Dillon On Corporations to sustain
his position. In one case therein referred TO-,
the bower OF q Common Council to declare IL
cense forfeited vas denied, since the law had
61ed the iine, and the forfeiture Of 3 license,
which va I,nf .dmissible. Au such Chicago
ORDINANCES as we're 1epugnant to the new Consh-
tuition we're repealed By it: He then read tho
section Of the revenue article Of the Constitu-
tion whereiu It stated that the General Assembly
may impose . tax on anctioneers, regulated by a
general law. ,.,,
Convention meant to deprive municipalities Of
the power to license auctioneers, etc.
Judge Knowlton said the language OF the new
Constitution went further than the old. The
new one said any tax on auctioneers must be
uniform as to the class upon which it operated.
Therefore the Legislature could not empower
n1fy