New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-03-05

OoUR3 kkCoRD.
SATURDAY, MACH 4, 1876.
Fifsh Dissrice Cesrt.
The following il the full text of Judge
Cullom's decision on Friday:
State ON tho relation of Jacob Gray for
writ Of habeas corpus W. keeper of the
Parish Prison.-The relator 10 . member Of
the Metropolitan Police torce Of this CITY.
he il an officer, and - such ordered the re-
lease of -, who he'd been arrested for
some misdemeanor. taking his parole to ap-
pear before Lucien Adams, acting Judge OF
the First Municipal Court of this city on
the following morning. Tho Judge caueed
the relator to be arrested AID sent to prison
alleging that, in releasing the parry ar
rested on his parole, he had disregarded q
general order given BY him (said judge) to
the police force, to the effect that no one
arrested by said force should be released on
parole by the officers Of the police without
said Judge. The fact in this, ~ in . previous
case, acted upon by this court, is that .
party had been arrested for some
misdemeanor. No affidavit had been
made charging him with the commission of
any offense. Captain Gray, acting, - he
thought, within the scope of his authority,
released the party ON his parole to appear
promptly and answer to such charges as
might thereafter be preferred by affidavit
act as being in contempt Of his authority,
and accordingly ordered Captain Gray to
be sent to prison. The latter, believing he
had committed no act of contempt of the
riehtful and legal authority Of said Judge,
applied to this court for the writ of habeas
corpus, which the court granted for the fol-
lowing reasons: The ninety fourth article of
the State constitution declares that mo ju-
dicial powers, except "a committing msgis-
trates in criminal cases, shall be conferred
on any officers other than those mentioned
in this title exceptsuch % may be necessary
in towns and cities; and the judicial powers
of such officers shall not extend further
than the cognizance of GASES arising under
the police regulations of towns and cities in
the State" Il may be assumed, then. that
Judge Adams hasthe power of . committing
magistrate, with only such additional power
of Furnishing misdemeanOrs for police pur-
poses, a. have been given him by special
laws. What, then, are the legal powers of
committing magistratess Section 1910 Rays
Revised Statutae, page 198, declares that.
s.Whenever any person shall be accused of
any breach of the peace, crime or misde-
meanor, by the oath of one or more credible
witnesses, it shall be his duty
to receiye the complaint, and to cause the
accused to be arrested" etc. He then has
the authority to hear the witnesses brought
forward to establish the charges made
against the accused, and to determine, &C.
cording to the nature of the ofense and the
extent of his statutory powers in the prem.
Uses, the degree. if any, Of punishment. 1t
does seem plain enough, that if Judge
Adams has NO other than the powers of an
guided by the law regulating the duties of
Committing magistrates. These must act
on afidavits and can not act without one.
If he can not act without one, it is simply
because he has NO jurisdiction until an affi-
dayit is made. What sre the duties of tho
police force ON this subject! It can not be
seriously pretended that the duties of the
police force and of the municipal court are
the same. One 10 the adjunct of the Other,
and each has entirely separate functions to
perform, which, although necessarily re-
lated, are nevertheless separate and indie
pendent. The several officers and members
Of the Metropolitan Police force shall have
power and authority to Immediately arrest
and take into custody, without warrant Il
power which the committing magistrate
does not possAssl any person who shall
C0mmlt. OE SteeWPG oOAS' III
the presence of said officer or men,
Der. or within his view, any breach of
the peace or offense directly prohibited by
act of the Legislature, or by any ordinance
of the cities within which the offense is
committed, threatened or attempted; but
such officer or member of the police force
shall, under the penalty OF ten days
fine, or dismissal from the force,
in the discretion of the board, convey
in person such offender before q court Of
the CITY or parish where the arrest is made,
that he may be dealt with according to
law. If the arrest is made during the hours
that the court does not hold its regular SEES
sion, or if the court is not in session,
such offender shall be detained in a
station house or lookup until the next reg.
ular public sitting of the magistrate, and
without delay, before the court to be dealt
with according to law" Rays Revised
Statutes. section 2275 The whole of this
section proceeds on the theory that, If the
policeman violates any part OF his duty
preceding the appearance of the person ar
rested before the magistrate, he Is respon-
s;b,e to the Board Of Metropolitan Police,
which may, in its discretion, impose pen
atty of ton days fine or dismissal from the
force. This paragraph 10 not properly dic.
tated, but copied literally from the original
act of 1869, page 10l, section forty'one
think there is no doubt it was the inten
t;on of the Legislature to declare that
the board might impose q penalty OF
ten DAYS suspension and deprivation
Of salary, or dismissal from the service.
This is not important. Nowhere IN the act
can any provision be found that gives the
committing magistrate any control OF the
police force in matters not before him by attn
davit. How could it be possible tor the
force. "a such, to perform its important
functions if it be under two controlling
authorities! 1t is very certain 1t 10 amen
able for it's conduct to the Board OF Metro
politan Police for neglect of duty in max
mo arrests, etc., aud in retaining custody
of the persons arrested until the next regu-
lar public sitting of the magistrate" Inc
plain reason why it is not answsra0le 10
the magistrate before bis next public sit,
ting is found in the fact that he is supposed
tn and can know nothing of the arrests IN
til an affidavit is made; until then they are
simply matters of police, or pertaining to
the peculiar Office of tbs police force. An
affidavit in criminal matters ia Just as es-
genital to DISQUALIFICATION or right to take
coonizance of q case, as citation in civil
matters. Any judgment without citation
or appearance would be null, aud any pro-
ceeding by q committing magistrate moi
based on an affidavit, by which person
is deprived of his liberty, Is equally vold
II Il be void why can not courts OIL
comnetent jurisdiction declare them to be
soa 7 have great respect for the opinions
of the States Attorney General, but can not
surrender the sanctions of my Judgment to
4hat wh;ch believe to be his errors of law
sneak of the opinion he expressed IN re-
eponse to interr0gatories propoundeo to
him by Hon. Luoien Adams, Judge OF the
First Municipal Court, parish p OF Urieans !,