The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-22
IMPORTANT DECISION.
Judge Whitaker on the vagrant Law and
the W0rkh0use.
.uperIor s,riminal Court.

State ex rel. Frank Rush alias the Weasel vs. j.
d. Houston. Criminal Sheriff--The Court has
given much reflection to the matters presented
by this application Tor discharge upon hdoens
corpus, and acknowledges it's Obligations to j. N.
Hesly, ESQ, attorney for the felator. and Deputy
Sheriff Lionel Adams, appearing IN person for
the Criminal Sheriff, for the lucid manner in
which they have presented the points involved.
ii II but lust TO sav that the opin OF the court
is taken almost verbatim from the careful brief
OF MIR. Adams.
The provisions of aot t21 Of 1855, re.enacted In
1870, authoriss The recofders OF the city OF New
Orleans to deter mine who are vagrants, or vaga-
bonds and suspt ious persons, and to commit
them to the Workhuuse for Term not exceeding
six months, where th y are to b, kep5 At hard
labor. The reIator in the present case was con-
yieted oil being q vagrant within'th terms OF the
act, aud was sentenced to pay line OF twenty
dollars or suffer imprisonment IN the Parish
Prison for thirty DAYS. This sentence OF convic.
ton, the reator claims @ TO oe naau.hos,zsa anu
and because. 2, IL constitutional, the act requires
that the punishment be imprisonment in the City
workhouse and not in the Parish Prison.
The unconsttutioaality of the act is conteDded
for becanse It violates two OF the provisions Of
article of the constitution; the one ordsining
that every accused party ''shal be entitled to a
speedy public trial by au impartial jury OF the par
ish where the offense cpmmlbbed, unless the
venue be changed" and the 'bther requiring that
all prosecutions 'shat be by Indictment or in-
formations and beeau the Conviction OF va
grants by the recorder IL the exercise OF judicial
movers and therefore contravenes the spirit OF
the oath article OF the same constitution which
grants TO officers not included in the section rela-
tive to the Judiciary Department., cognizanoe
only OF cases aiisit under the police regulations
OF towns and cities IN the State.
The act defining aud Furnishing yagrancy was
adopted while the Constitution OF 1864 WAS In
force. That instrument. like the constitutions OF
1864 and 1868, guaranteed the accused speedy
public trial by an impartial jury of the vicnage,
t,,,l ale tai an
like The 13Srd article OF the constitution Of 1854,
vested In the recorders Of the city OF New Orleans
such cfiminsl Jurisdiction as might be necessary
for the punishment of minor crime and often ,es
and as the peace and good order of the city might
require. These articles, exactly similar in the
two constitutions THAT Of 1859 and that OF l864)
are In no way repugnant TO. or inconsistent with
the spirit or letter If article g4 of the constitution
OF 1863 Therefore, under the provisions OF ar.
tice lao of the present constitution, su act bear
ing upon these constitutional articles (which
was In force and valid ut the time OF the adoption
of the consti, ution OF 1869, not inconsistent
Herewith, continues as ii the new constitution
had not been adopted.
The constitutionaiity of the vsgrant act was
denied In written opinion OF the late Judge
Cooley, pronounced In the case OF "The State ex
rel. Fred Cobbier vs. the Keeper OF the City
Workhcuse." This decision was supplemented
by the discharge OF twelve offenders against this
law who applied to the sixth District Court to be
released by habeas corpus. TIE decision OF Judge
by him very ably and very exhausuvely elabor-
ated, These were: |. That the act was repugnant
to the constitute nal ri hit Of trial BY jury guar
anteed the citizen, and OF which he could not be
deprived by Legislative enactments; 2. That pro-
ceedings under the vagrant act were based upon
affidavlts; Offenders were summarily tried, and
finally disposed OF without other pleadlngs, in
violation OF the constitutional requirement that
prosecutions shall be by in iictment or informa-
! tion; and 8. That the provisions OF the aot in
question, applying only to the parish OF Orleans,
violated the seonnd sr,"le OF the ''bl Of rights,
which says: "They tcitzens) rhall enjoy the came
civil, political aud pub 10 rights aud privileges
and be subject to The same pains and penalties" !"
This third reason was urged against the act rela-
tive to vagrants wi hin the Metropolitan Police
District and, Of course, cannot be considered in
o construc ion of the act Of 1855, which appes
% all parts OF the state. These decisions OF Judge
Cooley were fortified by the subsequent concur
renee of the Superior Criminal G Jurt therein, on
an unopposed writ of ha bess corpus.
An examination into the pr nipples involved in
the objections tf the telator, (which are exactly
the points made by Judge Ooo.ey in his opiuion)
diacloses that the very questions now at iseue
have been construed by the Supreme Court of
che State adversely to tn, REALTORS claim. Iu
1859, in New Orleans VS.. Costello, that tribunal
determined that although the constitution OF
1852 (art. 1857 required prosecutions to be by in-
dictment or information an act of the LeRisla-
kure which vested recorders of this city with the
trial of minor crimes aud ofenses, did not violate
that article, because such deleg stion of judicial
powers to the recorders was authorized by the
article I24 OF the same constitution ia A. 49, In
1860. the same court, in the case OF State vs.
Gutierrez, laid down the doctriue that the ar
icle 103 guaranteeing the right OF tr al by jury
9 the general rule to which article l24 forms an
exception, the former p'oclaims right, the
bther recognizes class OF cases to whi h that
light does, net extend. In other words, the