The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1895-07-19

Vogel were arrested by Chief of
Police Knorr, and taken before Presi.
dent Greasy at the Town Hall. On
the witness stand Greasy testified that
on refusal to pay, he fined them Saso,
and committed both to Jail for 60
days, because he understood that
both were the owners of the store.
1t appeared however that Vogel was
clerk, and the case was not pressed
against him before the court. There
appeared to be some irregularity in
the papers made out by the President
for their commitment to Jail, which
was conceded by the counsel for the
town. After arguments by Fred
Ikeler and James Scarlet, the court
rendered the following opinion
OPINION OF THE COURT.
OF course this case must stand up
on the evidence here, as produced by
the commonwealth. Under and ac.
cording to the law governing hearings
of this kind, the defendants are not
permitted to give any evidence. We
have heretofore, In Montour County
where, in a similar case, the prisoners
were petitioners, carefully examined
this questionable questions raised in
this case. We have examined the
acts Of assembly relating to them.
While we are quite clear that the
mel chants Of the town may be pro-
tected by a proper license under
proper law--by constitutional act
of assembly and a town ordinance
properly drawn hereunder while we
are satisfied that such an act and such
an ordinance pursuant thereto would
control the license and warrant its
collection and would be no doubt
wise remedy for the evils existing and
contemplated by the present legisla-
ton, and would be wise means of
protecting the resident merchants Of
town or other municipality: we are
yet fully convinced that the act OF
assembly of 1850 and the ordinance
drawn under it are void, If we were
passing upon the record as it stands
before us, we would have been oblig
ed to discharge the petitioners at their
first hearing but we have permitted
the commonwealth to give evidence
and to show the facts. When we per
NIT that to be done it is our duty to
construe the act of assembly and the
ordinance strictly. That is, after al
lowing the commonwealth to give
oral evidence in support of, and in
addition to, the warrant of arrest, re-
cord of conviction and commitment,
it becomes our duty to consider the
invalidity of the ordinance and the
constitutionality of the statute under
which it was framed.
There are sone cases, however,
which hold that the constitutionality
of a law, statute or ordinance can not
be tested under habeas corpus, and
when that is the only alleged ground
for relief the prisoner would be re-
manded. But the contrary rule is the
soundest in reason and best supported
by authority. In this case the com,
monwealth admits that it has no
cause to detain M. Vogel, one of the
prisoners, and consents to his immedi-
ate discharge. The other prisoner,
N. Lieberman, must be released, not
only because there is no proper judg-
ment, warrant, commitment, or re-
cord of conviction, but because the
statute of 1889, under which the town
ordinance was drawn, is unconstit
tional and the ordinance under which
the prisoner is held is found to be IN
valid. This is strictly in accordance
with the able and lucid opinion rend-
cred in April 1895, by Judge Scott
in an almost similar case of South
Bethlehem VS.. Hackett Carhart & Co.
reported in the Northampton Re-
porter, page s8I. There being no
evidence to warrant the detention OF
the prisoner we find that he is depriy-
ed Of his liberty without due process
of law, and we accordingly direct him
10 be released.
Bloomsburg Pa, July 18th, 1895
By the Court.
THE ELECTION INJUNCTION.
On Friday afternoon a bill in equity
was filed in court by F. P. Drinker
to restrain the Town Council from
holding an election on Tuesday, the
10th, on the question Of increasing
the town indebtedness and an electric
! light plant. The plaintiff was rep
resented by c. r. Buckalew, ]. G
Freeze aud Fred Ikeler Esqs. a
preliminary injunction was granted
, and hearing fixed for Monday morn
ing at nine o'clock, at which time th'
defendants were represented by R. X
: Little and James Scarlet Esqs.
The defendants in the bill are thu
President and members of Council
= and the election officers of the fou
: election districts. The bill sets fort
among other things, the following: