Savannah morning news. [volume] (Savannah) 1868-1887, 1886-04-25
AGAINST THE MAYOR.
Judge Adams' Decision In the Attach
ment for Contempt Case.


The case arose out OF refusal by the
Mayor and Clerk to produce the informa-
ton docket before the grand jury OF the
Superior Court at the December term.
The case was argued at the beginning
of the present term on rule nisi the re-
spondents being represented by Capt.
Geo. A. Mercer, Garrard d5 Meldrim and
J. r. Saussy, ESQ, and the State by
Solicitor General duBignon. The decis-
ion sustains the State and reserves
the final order.
His Honor first takes up the questi on
OF the validity OF the subpUnas duces
tecum that were served upon the Mayor
and the Clerk OF Council ordering them
to produce the information docket before
the grand jury.
"These subpRnas were issued in pur-
suance OF the practice that has uni
f0rmly obtained so far as we are advise d
III such cases. says the decision.
'Retlection and careful investigation
convince us that there is no reason TO
doubt that this practice is in perfect ac-
cordance with law"
Bishop, Criminal Procedure" vol. l,
sec. 2S1, is quoted upon the duties and
powers OF the prosecuting officer OF the
government.
"He is the attorney and agent OF the
government in whatever concerns his Of
flee and he should perform all acts re-
quired by the situation; as tor example,
cause witnesses to be subp9naed, etc.
Continuing, Judge Adams says: In
the State of New York subpmnas for wit
nesses in support of any prosecution may
be issued and signed by the district att0T-
ney without the seal OF the Court. The
authority to issue subpmuas without the
aid Of court process is doubtless conferred
by statute; but the power to invoke the
process of the court to compel the attend
ance Of witnesses before the grand jury is
a power necessarily resident in the Office
OF prosecuting attorney. Its exercise IS
essential to the proper administration of
justice"
1.-The respondents insist that there must
be case pending 10 support the issu-
ance Of subpoena IN a criminal prosecu
ton, aud that there was no case pending
when these subpGnas were served. When
does the tendency Of criminal cause be-
gn2 Does itOriginate with the Indictment
or presentment found? This cannot be
true, because the indictment or present.
ment cannon be obtained until the wit
nesses are first brought before the grand
jury. Alter the Indictment or present.
ment Is found the witnesses are not
needed by the grand jury. it is sug-
gested that the tendency OF prosecution
begins when warrant is issued for the
arrest of the defendant. There are many
cases, however, where warrants are not
issued. 1t is in these cases that are not
originated or aided by private prosecu
tor that the interests OF justice most de-
mand the exercise of those functions with
which the law invests the prosecuting
officer. When magistrate issues a
criminal warrant he may likewise
issue subp@nas that will com
pei the attendance Of witnesses
before the grand jury. When there is no
warrant there is no way by which the
attendance of these witnesses may be
obtained, unless it be found in the power
which we affirm as resident in the
Office of the prosecuting attorney"
Upon the point made by the respondents
that the subpenas were invalid, because
at the time they were served the term
had not begun and the grand jury had not
been organize q, His Honor says
"W here Is the law or the practice which
gives Warrant to this contention? In
many counties in this State the term of
the court continues only for a few days;
in some only for one day. In these
counties how could the attendance of
witnesses be secured for the use of The
grand jury. in cases where warrants lad
not been taken out, unless the subpoena
ing power of the court was at the dis
pOsal of the Solicitor General before the
term began? ANY litigantmay invoke this
power to procure the presence OF his wit
nesses on the first day of the term. Is the
State to be denied this privilege-the
State acting through its agent, the Solicit
tor General?
''We do not find it necessary, therefore,
tO ~ fots Z fan ar-Th y IN
sustain the validity Otthese subpGnas; but
were this necessary We should say that a
criminal case is pending from the time
that the machinery of the criminal law is
put into operation by the prosecuting
officer, upon whose demand subpGnas for
STATES witnesses are issuad.'
After quoting from ''Phillips on Evil
dence' where he says that 1.-The witness
ought always to have them (the writings
ready to be produced. If required, in ODE
! dience to the judicial mandate" Judge
| Adams says: 1.-The subppnas having
| legally Issued, we think it follows thai
| the respondents should have appeared II
obedience TO their requiem Mt, and should
| have then presented tue questions which
| are now made and which relate to the
prOpriety of enforcing the production 0
the documents demanded"
"Pretermitting this consideration, how
! ever, we are OF Tue opinion bnab lnef6 II
nothing in the character of these dOcu
ments which take from this court tn,
power to compel their production. W.
remark, in passing, that it is by no mean
| apparent that the information book o
| docket Of the CITY Council is a cOur
| record. But without regard to this it il
unquestiOnable that the power to enforci
| the production Of the Police Court record
resides in this court. No law preceden
! or authority has been cited 20 sustain
the contention which challenges thii
power. We find many presidents for it
! exercise. The Police Court 8 an infero
judicat0ry and is subject TO the supervis
DRY and reviewing jurisdiction Of thi
court. The records Of such an inferiO
judicatory are always demandable al
the instance OF the superio
tribunal. In the absence of an,
statute. or rule OF practice prescribing
different course, the subpoena duces tecun
seems to be the only appropriate ant
available method for the assertion OF thi'
demand. When "A witness appears IN re
Spouse 10 such a subpoena and aitrms hi
readiness 70 comply with its terms, uDOI
his application, the court will 50 direc
as TO avoid any unnecessary incOnven
fence TO the tribunal the records Of whicl
are sought. We conclude that these sub
pmnas were legally Issued. and that NJ
reason appears which absolves respond
ents from compliance with their require
ments.
"The respondents disclaim any intention
| TO disObey a mandate Of this court, ant