The Montgomery advertiser., 1901-06-28

advice, information and belief. that each and every provision Of said char | ter of the city of Montgomery wnicn seeks to confer upon the Recorder, Ser geant of Police or any other municipal i officer or agent of said city power or authority to administer oaths or issue | W arrants, or to set in motion as such municipal officer or agent any pro- ceeding looking to the apprehension, aFraiennept or trial of any person ac- cused of a violation of any odense against the laws of the State H Ala bana, and against the peace and dig nity thereof, are unconstitutiona1 end void. And petitioners aver that the af- fdavit of said D. W. NcIver. upon which sach warrant was issued tor the arrest Uf petitioners was made be- fore one J. G. Thomas. ss Sergeant Of Police of said city, and that the war rant itself, authorizing the arrest of petitioners, was issued by said J. G. Thomas as such Sergeant, returnable before the Recorder of said city ant that said Thomas was not State of facer and had no authority to take said affdavit or Issue said warrant.
 And petitioners aver that by proper plea or suggestion made before said B. C. -Tarver, as Recorder of the city of Montgomery, when he assumed to try
 said cause. these petiu ners duly pie ad- | cd to his jurisdiction to try them un- der the warrant under the alleged au- | thority of which they were arrested. ss aforesaid; which said pleas were, fn words and figures, as follows. to wit:
 City Council of Montgomery vs. L. L. Hin. W. W. Hill, W. C. Hill and R. $. Fill, before B. C. Tarver, Recorder Of the City of Montgomery"
 Comes the said defendants and for plea and objection to the Jurisdiction or said Recorder to try them in this pro- ceedins say:
 i. That this prosecution is, as shown on the face of the warrant l'icr which they were arrested. a prosscu- tion for the offense of assault with ie- tent to murder. which Is an offsnse against the laws of the State of Ala bama and not an offense against any
 valid ordinance of the city of MontEom try, and that, therefore. the saiA Re- eorder has no jurisdiction to try CT put on trial before him these defena- ants on such a charge.
 2. That the warrants, under which these defendants were arrested, End which is the basis of this prosecution, was sworn out, as appears on it's face. on the fith day of January, 1901. and that, on said date, the Recorder of the city of Montgomery had no turisdic- ton, whether sitting as a committing | magistrate or otherwise to hear end | determine this prosecution.
 B. ThAA, as appears on the face or l said warrant, the same was issued by \ J. C. Thomas, Sergeant of Police ot the \ city of Montgomery; that the said J. I c. Thomas, as such Sergeant, or other wime, had no power or authority in law \ to Issue any such warrant for the sF~ nest of these defendants onsuch charge. \ And hence the came is mall and voids ana the said Recorder. whether sitting
 as . committing magistrate, or other wise, has no jurisdiction or authority | to try these defendants on such alleged charge based on such warrant.
 A That. S appears frem the afisda- vit on which said warrant issued, the sasne was sworn to before J. G. ThAaaas Sergeant of Police oF the CAty of Saons- EoHnery. and the said Thomas, wh7tner as sach Police Sergeant. or otherwise. had no authority to take sach affidavit. | making any such charge as therein | set forth. against these detenjaats, | and thereby setting on foot any such | prosecution against these defendants" | And petitioners also flied motion to | qnash said warrant and affidavit, which 1 said motion Is hereto attached. marked Exhibit B. and made part of th:s pe l tition. and also certain other pleas to | the jurisdiction of said Recorder. which 1 said pleas are hereto attached. marked
 1 exhibit c. and made part hereof
 1 All of which said pleas or objections 1 were duly presented in writing to said 1 Recorder. on to wit. the 24th day of 1 June. 1901. both by way of motion to | Quash said warrant and by way of plea | or objection ,as aforesaid. But the said | B. C. Tarver. wholly disregarding his | plain and positive duty in the premises, | overruIed such motions to quash said I proceedings and said pleas and sug | sestions, and announced that he would force these defendants to trial on said 1 warrant, and thereupOn set said case | for trial on the 27th day of June, 1901 Retltioners further showeth: That the said B. c. Tarver, as such Recorder. l was not and is not qualified to try he | said cause against petitioners for lh!s: | That after the said warrant was was aworn out, as aforesaid, for the | arrest Of petitioners. which said warrant was returnable before him as I therein stated. he. the said Recorder, stated that the petitioners were guilty of assault and battery, which state ! ments were made by him before he had
 heard any evidence in said cause. and
 made other statements showing that
 he had prejudged the case against these | petitioners; all Of which is shown by l the copies of certain afFidavits hereto attached, marked Exhibits l. ?. 8, 4. s,
 6: that the attention of said Recorder
 was duly called to the fact of his be- ing so incompetent to try said cause,
 for the reason above stated, but not
 withstanding this, he announced his
 determination to try said cause, as afoFeBaid.
 | Wherefore, the premises considered.
 petitioners pray Your Honor to issue a rule Rigi, directed to Hon. B. C. Tar
 veP Recorder of the City of Montgom-
 cry. as aforesaid, commanding him to
 be and appear before Your Honor's
 Court at the next term thereof. and show cause why a writ of prohibition or nfhAr remedial writ ahn1ild mt iss,,e