The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-07-26
FIRST DISTRICT COURT.

JUDGE ABELL DECIDES "Acr NO. g. OF 1874, con
suTUTIoNAL, AUTHORIZING THE POLICE TO AR
LOTTERY TICKETS.
Appended is the opinion of Judge Abel in the
case OF the State Of Louisiana on the relation Of
II. u. Lefebre and A. Perpillan, praying fol-
habeas corpus ct ais.
The return of the Sheriff to the several wrts
dlscloses the fact that REALTORS imprisoned for
tive days Tor judgment against them under act
No. OF the General Assembly, passed at its last
session.
The several cases were consolidated for argu-
ment; the grounds relied upon for the discharge
OF REALTORS being Identical The regularity ofthe
proceeding before the municipal police judges
was not contested, and the sole ground relied
upon for the discharge of the prisoners is the I'M
constitutionality Of Act No. 8, under which sem
tence was passed.
The same question under precisely the same
circumstances, has been passed upon by the
judges Of the Sixth District and Superior Grim
inal Courts for the parish Of Orleans. Had they
concurred in opinion, would undoubtedly have
denied the writs in these cases but as the two
learned judges have decided, the one that the law
Is constitutional and the Imprisonment lawful
and the other that the law is Unconstitutional and
the imprisonment unlawful, l reluctantly con-
sentcd to grant the writs. This conflict Of opin-
ion was by no means remarkable, as the consti-
nationality Of Act No is not free from doubt.
The virtual reversal Of the judgment of the
judge Of the Sixth District Court, on habeas
corpus, by the judge of the Superior Criminal
Court, if good law, Gusts me Of jurisdiction, and
would render any judgment of mine migratory.
derive all the jurisdiction l possess from the
same Constitution and laws as Judge Saucer, Of
the Sixth District Court.
Article nine of the Constitution declares that
the writ Of habeas corpus shall not be suspended.
Article 1872 OF the Code of Practice says
The district judges and the Judge Of the
Criminal Court OF New Orleans, and the courts
established or to be established whose jurisdic-
ton exceeds $500, shall have the right Of granting
writs Of habeas corpus within the limits Of their
respective jurisdictions, except in the cases pro
vided by the following article
The article following provides for absence and
sickness Of judges, etc:
see nothing in the law creating the Superior
Criminal Court that in any degree affects the
Jurisdiction OF other courts or even hints at its
exclusive jurisdiction. The words shave power
to issue habeas corpus for all purposes Of the
writ" can not be construed to confer exclusive
jurisdiction. The writ Of habeas corpus is in no
sense criminal proceeding.
The law will not endure the illegal imprison-
ment, whether in public prison, private house
or elsewhere. This writ asks not whether the
prisoner is guilty or innocent. 1t simply brings
the prisoner, with the cause OF detention that
the judge may look at the cause Of detention.
II it appears by the return that the imprison-
ment il warra ted by the laws of the land, the
prisoner is sent back to former custody. If his
must be discharged. The writ asserts inno-
cence and Furnishes no guilt. 1t is undoubtedly
the most important writ issued in a free State
it cannot be constitutionally suspended and
should not be abridged.
1t may be abused by granting it improvidently.
when it should not be granted and it may also
be abused by refusing it when it is the sworn
duty Of the judge to grant it.
Important and salutary as believe the writ to
be, declined to issue these until overpowered by
opportunities of members of the bar, represent
ing REALTORS l saw conflicting opinions between
brother judges, and could see no Importance my
decision could have.
But the writ having issued, and not doubling
the jurisdiction of the court to pass upon the |
issue made, namely, the uuconsttutionality Of |
the law under which the REALTORS are imprisoned |
the unc0nstitutionality of law under which |
sentence has been passed, is sufficient cause for
discharge on writ Of habeas corpus
The right is denied by counsel for the State
and they cited numerous authorities Coun el |
for REALTORS I think, established the affirmative
Of the proposition upon both principle and by
authority.
One case was cited in which the Supreme Court
Of Wisconsin, in a lengthy decision, decided that
q sentence regular III every part OF the record,
rendered under an unconstitutional law Of the
United States Court is not binding on citizens of
the United States, and discharged the prisoner,
the sentence Of United States Court notwith-
standing. See Wisconsin, 1877 State on relation
Of Booth and Ryecrifft.
could not 20 to the length of the case cited:
but it declares the general principles of the writ
Of habeas corpus, in asserting that no can be
imprisoned and detained unless it be in accord.
ance with the Constitution and laws Of the land.
As to the cases of sentences of inferior or
statutory court, entertain no doubt of the right
to review the constitutionality of the law under
which they act. In addition to the authorities
cited by counsel, and his able exposition of the
constitnt0nallaw bearing on the subject in hand
find in the Code Of Practice, article s24, in which
full powers to discharge il illegally detained, is
Judge, from the return and annexed documents,
or otherwise, that there is cause for arrest or
confin ement, or if he thinks that such arrest
or confinement cannot legally continue, he shall
immediately set the prisoner at liberty.
This article contains the wisdom and manhood
OF the common law, which will not endure the
Of any one, however humble, while
the common law, including Magma Charta,
while the bills of rights in the Constitutions Of
this and our sister States, denounce restraints ]
upon the liberties of the people, this article is
the most comprehensive solution Of redress ever I
penned. Khe (the judge) thinks that such {
rest and confinement cannot legally continue, he
shall Immediately set the prisoner at liberty. II
. law be unconstitutional, can judge, upon his {
oath Of office, say that a prisoner Is legally de-
tanned under an unconstitutional law? Let Us,
for this p int, suppose the Supreme Court Of
the state mad pronounced No. Unconstitutional,
could it be said that the imprisonment of these
prisoners could legally continue? Certainly not
In the language Of the Code, would be com
PEELED immedla tely to set the prisoners at
liberty. ! entertain the opinion that law de-
clared unconstitutional, or manifesty So would
entiue the prisoner to relief on habeas corpus.
This leads to the inquiry, secondly, AZ to what
would legally Justify Judge in declaring law
when colaterally presented7 !
Mr.. Cooley, in his much approved work on Con
stitutionA Limitations page l6O declares the
task Of declaring q law unconstitutional is deli
cate one" and on page l6l that "some of the s
courts will not enter upon the consideration Of
he unoonstitutionality Of a law without full
bench"
This importance of the subject has not escaped |
he notice Of own Supreme Court. In the :
,ase OF syndlcs OF Brooks vs. Wegman, Martin,
page II, the Court says: "We reserve to our
selves tie authority to declare null any legisa-
i've act which shall be r,pugnant to the Constitu
ion; but 1t must be mani cstiy not susceptible
" doubt 5Iiobnson, 5S3; Nicholas VI. Thomp- I
son.
The Supreme Court, as the guar 1anism of i
the constitutional rights OF the y ople is author