New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-08-11

such an order: the proceeding against the
Administrator OF Commerce would neces
sarily be of nature entirely within the
jurisdiction Of court Of exclusive civil
jurisdiction.
1t was claimed IN the argument that the
police magistrates have no jurisdiction what
ever in the cases, because under section
three Of act No. 81 the Administrator of
Commerce is required to give information
to the grand jury of the parish of Orleans
of any party or parties who have violated
the provisions Of the act. This is forced
construction. 1t is true that penal statutes
should be constructed strictly, but not SO
as to defeat the obvious intention of the
Legislature, and it is equally true that Sin
the case of all written laws it is the intent
of the law giver that it be enforced
Cooley G.. L. %.
The intent of the Legislature in passing
act No 81, by fair construction, was that
private markets should not be carried on
within certain limits; that whoever dis
regarded the restrictions OF the Jaw should
suffer penalty, that the market should be
closed. and that the prosecution against the
parties should be under an indictment
found by the grand jury, it being made the
duty of the Administrator OF Commerce to
put the grand jury in possession OF the facts
upon which to base the Indictment. The
Legislature having clearly the. power to in
sist that prosecution under act No. 81 OF
1874 should be by Indictment, have exer-
cised that power, but this is by no means
intended to do away with the preliminary
examination before a committing magls-
trate. There are many crimes and otfenses
for which, under the laws of the State, the
prosecution must be by Indictment, yet no
one can claim that the parties accused
should not have hearing before the COM
mitting magistrate.
The relief asked by the relators extends
only to cases which have already been passed
upon by Justice Staes, and to that extent it
can be granted, though l apprehend Justice
Staes will not insist on taking any further
action in said cases. l Can not conjecture
for the benefit of relators what the action
of the magistrate will be in other cases; l
can not take it for granted that heis going to
do wrong. | have no hesitation in stating
that the magistrate should be careful
that accusations brought before him are
Justly made, and he should not countenance
oppressive proceedings; but at the same
time he is sworn to faithful enforcement
of the law, and if the law itself is oppress-
i've, that is not his fault.
The State of Louisiana on the relation of
William Fagan. Application for habeas
corpus and also fer mandamus and prOhlbi-
ton. The relator has filed two petitions,
which were heard together, one praying to
be discharged from the custody of the
sheriff Of the Criminal Court, in which he
is held under mitt1mus issued by the pO-
lice justice of the First Municipal Police
Court, charging him with violation of the
provisions Of section one of act No. 81 of
1874, relative to private markets in the city
OF New Orleans: as reason tor his dis
charge he urges that the magistrate erred
in constituting the business carried on by
him as a private market; that he does not
carry on a private market as contemplated
by the act, but carries on a wholesale busi-
ness in fresh and picked meats. There is
no question of law involved in this appli-
cation; it is simply a question OF fact. viz:
Does the relatOr carry on such private
market as contemplated by the law! Sec
ton one OF act No. 81 reads as follows:
''That it shall be and is hereby made I'M
lawful for any person or persons to open,
conduct. carry On or to continue any prl-
vate market for the sale of fresh meats,
poultry, fresh fish, etc, in the city of New
Orleans within the space of twelve squares
of any public market, under the jurisdictic-
ton and authority of the Administrator of
Commerce of said city OF New Orleans" 1t
is clear to my mind that the intention of
the Legislature was to prevent the carrying
on of that general retail business which s
carried on in the public markets of the
city. The evidence before me does not show
such to be the character of business carried
at wholesale, and almost exclusively to one
class of customers, the steamships, vessels
and steamboats, that land at this port. l
am of opinion that the magistrate has not
properly classified the business Of the rela-
tor, and that he can not be held for VIOLA
ton of act No. 81, SO long as he confines
himself to the character of business estab
lished by the evidence before me; l must
therefore order him to be discharged from
custody.
The writs of mandamus and of prohibi-
ton l can not grant, the parties against
whom they are asked are not properly be-
fore me; the action complained of is not
such as brings the parties within my juris-
diction.
First District Court.
INFORMATIONS FILED.
Assault and battery-J. f. Ringwood,
w. Fullwood, Henry jackson.
NoLLE PRosEQUI ENTERED.
Petty larceny-August Meyers.
ACQUITTED.
Assault and battery-Mrs. Adam Ruth,
Lizzie Scott.
Second District Court.
Henry Doll prays to be emancipated.
Succession OF William Pringle opened.