New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-08-11
COURT RECORD.
MONDAY, AUGUST ~. 1874.
Superior District Court.

Union National Bank; same VS.. Germania
National Bank; same VS.. HiberDia National
Bank: same vs.. Louisiana National Bank;
same vs.. New Orleans National Bank; same
VS.. State National Bank; same VS.. Ieutonla
National Bank.-The relatOr sets forth that
each defendant is incorporated under the
national currency act or June ), 1861; that
by law It should cause TO be kept, at all
times. full and correct list Of the names
and residences of all shareholders IN the
association. with the number OF shares held
by such shareholders, in the office whefe
the business of the said association Is trans.
acted; and at all times, whenever requested
so to do, to submit such list to any and all
officers authorized to assess taxes under
and by virtue of State authority; that the
proper officer desired an inspection to make
the assessment for 1879; that the president
and cashier refused to exhibit its books;
that writ Of mandamus is necessary for
the interest OF the public, as the assessment
rolls must shortly be closed: and prays tor
an alternative writ commanding compliance
with the law. Mandamus refused.
Superior Criminal Court.
The State Of Louisiana on the relation OF
Bernard Bernichon, Jean BergerOn and
Jean Bares-ApplicatiOn for mandamus and
prohibition.-The relators have presented
their petition, setting forth that they were
arrested and brought before the Honorable
f. Staes, Justice of the Second Municipal
Police Court, under complaint charging
them with the violation OF the provisions
of act No. 81 Of the General Assembly OF
the year 1874, entitled IAN act to regulate
the private markets of the city OF New
Orleans" that after an examination OF the
cases the magistrate committed the parties
to answer before this court; and that they
were subsequently rearrested for the same
offense. They claim that the magistrate
exacted promise Of them that they would
not reopen their private markets as con-
diton to their. not being again arrested;
and they pray that the magistrate be re-
uuired to send before the Superior Criminal
Court the charge and the papers relating
thereto, and further that the magistrate be
prohibited from proceeding any further In
these cases.
Should the petition and the prayer
thereof be strictly considered and
construed, the prayer OF the re-
Iators could be readily granted and
vet they would not obtain any benefit, tor
all they ask is that the magistrate shall not
proceed further in the cases he has already
examined and passed upon, to which order
they would of course be entitled. But they
intend to ask for more than Is revealed IN
the petition, and what they are seeking was
developed IN tne course VI lut ISuiueAU u
their counsel.
First, am asked to determine that act
No. 81, regulating the private markets is
unconstitutional; this l can not do, for
even admitting that such is the opinion
entertained by me, it would be most indel'
icate act, and subversive OF all proper
notions OF the respect due to the court OF
highest and controlling jurisdiction OF the
State to disregard its decision maintaining
the constitutionality of the law, even
though that decision has not become final.
1t is urged that the committing magis-
trates 1.-THE police justices) of the city of
New Orleans have no Jurisdiction of the
offense created by act No. 3 because the
act itself does not confer that jurisdiction.
If this proposition be correct then these
courts should be Immediately closed, for
they have no power to act in the examination
and investigation of any crime or ottense if
that power be not derived from the act
creating the municipal police courts, and the
general statutes of the State. Section TOUR
of the act creating the police courts, ex-
pressly confers upon them the necessary
Jurisdiction to act as committing magis-
trates TACT No. 80, 1879, aud under the gen.
eral provisions of the Revised Statutes of
the State, it is made the duty of all COM
mitting magistrates to inquire into and
take proper action in regard to all otfenses
brought to their notice by the oath OF any
person.
From the evidence submitted to me in
the proceedings upon the return to the order
to show cause why the prayer of the petit
ton of relators should not be granted, it
appears that the parties were arrested upon
the oath OF officers Of the police, made be-
fore Mr.. Police Justice Staes. charging the
violation of the provisions of the act No. 81,
of 1874. 1t is difficult to understand how
the magistrate could lawfully avoid the
duty imposed upon him Of Investigating the
charges brought to his notice, and to exer-
else his judgment as to the proper disposi-
ton to be made Complaint is made before
me that the magistrate exacted a promise
that the parties would not reopen their
markets, or that he (the magistrate) would
order their arrest; the evidence is not to
this effect l understand that when these
parties were brought before the magistrate,
they demonstrated against their frequent ar
rest for the same offense, and upon hearing
the remonstLance, the magistrate advised
the parties as it was exceedingly proper he
should; that the only way for them to avoid
arrest was to cease violating the law by
keeping open and carrying on private mar
kets within the limits designated by the
law. 1t seems to me that the magistrate has
in no way exceeded his jurisdiction. While
l know full well that under the provisions
of the law creating the Superior Criminal
Court that court has the power to prevent
illegal action on the part of committing
magistrates, yet it is no way vested with
authority to interfere with the perform
ance of their legitimate duties or trammel
the exercise of the Jurisdiction conferred on
them by law.
am of the opinion that the relators have
entirely mistaken their remedy, and feel
assured that my opinion is sustained by
consideration Of the law. Sec
ton two of act No. 81 provides 'that the
of Commerce be and he is
hereby authorized and directed to close, or
cause to be closed, any private market that
NAV hereafter be established for the sale of
meats. poultry, etc., in violation of the pro-
visions of section one OF this act" There is
nothing ambiguous in the language of the
section: the Administrator OF Commerce
has no discretion in the matter; the Legls-
lature establishes a police regulation, and
calls upon him to enforce 1t. The duty lmpos-
ed upon him must be performed in lawful
manner. He may either himself make oath OF
the violations of the law or he may call upon
the Metropolitan Police force to aid him IN
his duty. Section forty OF the
act creating the Metropolitan Police district
provides, among other duties, "that 1t Is
hereby made the duty of the Metropolitan
Police force, at all times of day and night,
within the Metropolitan district, and the Off
GERS and members of such force are hereby
thereunto empowered, to specially preserve
the public peace, prevent crime,
enforce and prevent the violation of all
laws and ordinances in force in said district,
and for these purposes, with or without
to arrest all persons guilty of vio-
lating any law or ordinance for the suppress
sion or punishment of crimes and offenses."
Act No. 80, p. 80, acts of 1869.
The evidence before me establishes the
fact that the afidavits upon which warrants
uere issued for the arrest of the narties