Commonwealth v. Leight

Chief Justice Robertson

delivered the Opinion of the Court.

The recognizance in this case does not, as assumed in argument, purport to have been acknowledged before the City Judge of Louisville, out of Court; and the plea sh^ws that the recognizance was taken in the City Court.

The City Charter, (Ses. Acts of 1838,) in attempting to confer on the Mayor the judicial authority of two justices of the peace, “in the commitment of criminals,” intended, in our judgment, to invest him with authority to recognize as well as to commit persons charged with bailable offences.

And, in our opinion! the 3rd sec. of the act of 1836, establishing “a Police Court in the City of Louisville,” which provides ‘ ‘ that the City Court of Louisville shall “have the power, jurisdiction, and authority intended to “have been conferred on the Mayor’s Court of Louis- “ ville,” should be construed as vesting in the City Judge all the judicial authority attempted to be given to the Mayor, whether in or out of Court.

Consequently, it is our opinion that the Police Judge has, in and out of Court, the same power to commit and recognize criminals, as that possessed by two justices of the peace; and, of course, as the committing justices have authority, after the commitment of a prisoner by them, to recognize and liberate him, the Judge of the Police Court of Louisville had, in this case, the same authority to recognize Edwin Bull, who had been committed by him for trial in the Circuit Court of Jefferson, on a charge of felony.

The 2ná section of theactofl821 is merely directory, and a recognizance taken before the committing justices is valid; though the circuit judge be in the county. Cates, Alto. Gen. for pl’tf. Pirtle and Speed fordef’t

If it be admitted that, according to a proper interpretation of the act of 1821, (1 Slat. Law, 777,) this power should not be deemed toexist when the Circuit Judge is in the county of Jefferson: still, as the Judge of the City Court had jurisdiction, and exercised it in this case, it is but reasonable to presume that his act was proper, unless the contrary had appeared by proof of the extraneous fact, which might have suspended his authority. Arid therefore, prima facie, the recognizance should not be deemed void for want of authority to take it.

But we are of the opinion that the 2nd section of the act of 1821, which requires the officer to return a writ of habeas corpus before the committing justices, or those appointed to grant injunctions, &c. whenever the Circuit Judge is not in the county, is not only merely directory, but does not imply that the committing justices would have no legal authority to take a recognizance when the Circuit Judge happens to be in the county. Such a construction of the section would be unreasonable, inconvenient, and often productive of absurd and injurious consequences. Ready vs The Commonwealth, (9th Dana, 38.)

Having thus cursorily noticed all the objections to the recognizance and scire facias, in this case, which we deem worthy of any consideration, and finding no one of them sustainable, it is therefore considered by this Court that the Circuit Judge erred in sustaining the demurrer, and that, consequently, the judgment is reversed and the case remanded with instructions to overrule the said demurrer.