The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-26
ACT NO. g..
1T Is EFFECTUALLY sQUELCMA.' by
THE DECISION OF JUDGE
HOUSTON.

Antonio AKosti Liberated and the unfa
nous Law under which he was Arrest
ed Declared Unconstitutional, NuI
and Void.
Yesterday, the Fourth District Court was
crowded with citizens anxious to hear Judge
Houston's decision in the habeas corpus case
OF Antonio Agostl. Soon after the opening of
the court the Judge read tho following decis-
ion indicative Of tho constitutional rights
and liberties OF the people
| No. 45,079. State of Louisiana OK rel An
tonic Agosti vs.. s. }. N. Smith, Recorder of
the First Recorders Court. relator, who
asks to be released under the writ Of babeas
corpus, Is held In custody by the Recorder of
the First Recorders Court of this city In u
failure to pay fine OF S25 Imposed by tho
said recorder on the said rolator for an al
legged violation Of act No 9 Of the session of
tickets in the city Of New Orleans The act
| Is In these words "That any person who
shall, within the city of New Orleans, with
out license OF tho company now authorized by
pose OF, or offer to sale, barter, exchange or
otherwise dispose Of any lottery ticket or
token policy, combination, device or certifi-
cato, or fractional part thereof, In any lottery
shall be liable to pay fine of $25 to the
city OF New Orleans, one-half OF which
shall be for the benefit OF the informer, and II
shall be the duty of any police officer to ar
rest any person who may violate this act,
and take such person before the police court
OF the district wherein the violation may have
occurred and upon due proof being made said
police court shall condemn the offender for
each onense to pay the fine imposed by this
act and in default OF payment to i1nprison-
ment for five days"
The relator contends that the Recorder OF
the First District is without any authority,
power or jurisdiction TO try or to commit
under said act; that in 30 doing he Is In anita
gonism to and In open violation Of article %
OF the State OF Louisiana; that the act itself
is unconstitutional and violative Of article 3
OF the constitution"
The answer Of the respondent states first,
| that he has the body Of the relator In custody
| by virtue OF his authority as Recorder Of the
First Recorders Court. and that said relator
Is charged upon oath with violation of act No.
. session OF 1874, relative to the sale of lottery
upon due proof found and adjudged guilty
and sentenced to pay five Of S25 to the city
Of New Orleans, and in default Of payment To
imprisonment for five days, that reator has
not paid the fine, and was about being legally
committed when the writ was served on re-
spondent.' The respondent makes the objec-
ton that this court is totally without juris-
diction to issue writs Of habeas corpus on the
relation Of persons In custody under the au-
thOrity OF the courts of criminal jurisdiction; ,
that the Issuance of said writ Oh tho relation
OF persons accused or convicted of crimes Of
lenses or misdemeanors would be an in
fringement upon the rights and jurisdiction
OF courts Of criminal jurisdiction"
I he answer to this objection is, that the
jurisdiction Of tho police magistrate as such
is not technically criminal jurisdiction. AS a
police magistrate he Is considered as an
officer OF public corporation, enforcing it's
ordinances or the statutes Of the State, whose
operations are confined to the corporation
The Supreme Court, In the case Of the State
ex rel. Herbert Geale vs. the Recorder Of the
First Recorders Court Of New Orleans re-
Gently decided. say:
Even without this delegation of partial
and limited judicial power to u police magis
trate, 1t has been elsewhere held that the
power could not be exercised because it would
not be, In the strict sense, judicial; thus when
the power Of the Mayor Of Hagerstown to try
and fine under an ordinance imposing fine
for an offense was disputed, and the same
ofiense was punishable by the State as a
Maryland was like our own in
respect to the court, whenever judicial power
was vested 1t was said the argument that
the Mayor could not try and fine under tho
is judicial, which by the constitution IS con-
tded to certain classes OF persons, would be
entitled to d great weight IL we thought the
power exercised by the defendant was in the
sense OF the constitution a part of judicial
power, but we entertained no such opinion
We regard 1T as but part Of the police power
as contradstingushed from the regular iu-
dietary powers OF the State, from time i'm
memorial distinction has been observed be-
tween the two, both in England and this
country. Shaffer VS.. Mu-
mura, il Med s3l See Floyd vs.. Eatenton, IA
Ga. 35t. On this point, and also on that Of non
tI1ai ny jury in the fourteenth Geor-
s s ths act ' i nc" as' in G asnct 1t wth
section OF the third article of our State
constitution, which provides that the supe-
rior courts shall have exclusive jurisdiction
in all criminal cases, except in the cases
which arc therein specified. The criminal
cases to which reference Is here made are
voative Of the public laws OF the State, and
not the local bylaws or police regulations of
q town or city which are not embraced in
nized by our penal laws. SO this court has
> decided in the case Of Williams VS.. the City
Council Of Augusta, ii Georgia r. 500 1t is
clear from these authorities that police reg
ulation for city or town, whether created by
the statute Of the State or ordinance of the
city or town, is not part Of the penal law OF
Che State, and that the enforcement of such
police regulation is not the exercise OF crimi-
nal jurisdiction
Tho reiator Is not in custody under the
) authority OF o court OF criminal jurisdiction,
but, as the answer OF the respondent shows, in
custody under the authority OF police court
engaged In enforcing statute Of the State
which was intended as police regulation for
, the city OF New Orleans. There is no force in
the objection Of the respondent that this court
IS without Jurisdiction to issue the writ Of
habeas corpus in this case 1t is not neces-
sary to consider in this case whether the law
has made any distinction between civil and
criminal courts as to their power to issue
writs of habeas corpus, on the relation
) Of persons imprisoned under authority Of
courts Of criminal jurisdiction. 1t becomes
necessary now to consider and determine the
question of the constitutonality Of act No. .
Of the session Of 1874 That question involves
, also that OF the jurisdiction Of the respondent
and the Recorder Of the First Recorders
Court to condemn the relator to pay fine Of
md in IN, riu nar,t