that it could be made to do so. Entirely within the form of ordinary legislation, as it is, it is difficult to see how the ends to be accomplished could be effected in any other way tha:: that which was pursued. Certain minor objections, however, are still further urged against it; for instance, that it changes the name of the district, a thing forbidden, as it is said by the 7th section of Article III of the Constitution which prohibits special legislation, "Chang ing the names of persons or places." We do not think a poor district is a place within the meaning of this section. But suppose, for the sake of argument, it were? The changing of the name is a very considerable part. of the act and might be struck out without any particular detriment to it. An act may be valid in part and in part not, and if the courts can save any of it they are bound to do so. Were this part of the act, therefore in contravention of the constitution, of which we have not the slightest idea, it still would not affect the rights to which the relators are entitled under the rest of it. Nor are we persuaded that by the power of appointing to vacancies on the board given to the judges of the quarter sessions of this county in the third and fourth sections of the act the prohibition of the constitution is violated which forbids special legislation: "Regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, aldermen, justices of the peace," &c. We should be glad to escape the extra judicial duties imposed upon us by this and other similar statutes, but the power of appointment so given is an administrative function not unlike many others of the court of quarter sessions, a probable relic of the petty sessions held by the justices of the quorum in the mother country; but unfortunately for the argument of counsel as wel as for our own relief it has nothing to do with the practice of the court or its general jurisdiction, and we cannot therefore condemn it as unconstitutional because of its special or local character. As to the relator, Alva Daley, judgment is given on on the demurrer in favor of the respondents; but as to the relators, Henry Carter and Milo Gardner, judgment is given against the respondents with costs and a peremptory mandamus awarded. Commonwealth vs. Krubeck. Quarter Sessions Philadelphia County, August Session, 1899, No. 34. Where a person is not engaged in the commission of any act of violence in the presence of a peace officer and is not doing what is likely to incite acts of violence in others, and there is nothing in the nature of an affray or breach of the peace, accompanied by acts of violence in progress, or the occurance of such a breach of the peace is imminent at the time an arrest is made, the element of violence actual or threatened, which is essential to justify making an arrest without a warrant is wanting. If an arrest is unlawful, all subsequent proceedings based upon it are void, and the indictment will on motion be quashed. Whether the beating of a drum in Salvation Army proceedings amounts to a public nuisance or not, or constitutes a breach of the peace, unaccompanied by violence or otherwise-not decided Motion to quash indictment. GEORGE S. GRAHAM, for motion. SAMUEL M. CLEMENT, JR., assistant district attorney, contra. McCARTHY, J., Sept. 11, 1899.—On Aug. 7, 1899, an indictment was found against the defendant for a misdemeanor in making, and causing and procuring to be made, loud and annoying sounds and noises at unseasonable hours of the daytime and at late hours of the night, in a certain tent on Mitchell street, above Roxborough, in the city of Philadelphia, on July 30, 1899, by beating upon a drum, to the great damage and common nuisance, not only of the neighborhood, but of the public at large. The defendant, by her counsel, now moves that this indictment may be quashed, for the reasons, first, that she was arrested without affidavit and warrant while she was in a tent upon private property, engaged in the performance of her religious duties, and second, that the said indictment is founded upon a return by a magistrate, which discloses that there was no statement supported by oath or affirmation subscribed to by the affiant, and no warrant issued for the arrest of the defendant. In support of these reasons, the officer having charge of the force by whom the arrest was made, was sworn and examined in open court, and testified that he had no warrant for the arrest of the defendant, but had received orders from his superior officers, in obedience to which, on July 30, 1899, he, with other officers under his direction, went to the locality pointed out to him, namely, a lot on Mitchell street, above Roxborough, on which a canvas tent was erected, and stood outside until he heard a drum being beaten inside the tent, and thereupon the officers went into the tent, and, in pursuance of his instructions, he directed the arrest of several persons among them the defendant, whom he found engaged in beating the drum. The original return of the magistrate, referred to in the second reason assigned for quashing the indictment, was also duly offered in evidence. While this presentation of the case necessitates the consideration of matters not apparent upon the face of the record, the power of the court to take such matters into consideration, and to quash an indictment therefor, has been recognized in frequent instances, and to such an extent as to be no longer open to question: Com. vs. Bradney, 126 Pa. 199, 204. It is the undoubted right of every person in this community not to be deprived of liberty without due process of law, and if the defendant has been arrested without due process of law, the indictment against her cannot be sustained. The single question presented for solution, therefore, is, was the arrest lawful? The provisions of the Constitution of the United States, article 4, and of the Constitution of this Commonwealth, article 1, section 8, cited by defendant, do not aid in the determination of this inquiry. Similar provisions are to be found in the Constitutions of many of the states of this Union, and have been under consideration in their courts of last resort, which have uniformly held that the declaration of the inviolable right of the people to be secure in their persons, dwellings and belongings against "unreasonable searches and seizures," although coupled immediately with the inhibition that "no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized," does not, and was not intended to, assert that no arrest shall be made without a warrant: Borroughs vs. Eastman, 24 L. R. A. 859. In our own case of Wakely vs. Hart, where defendants were sued in an action of trespass for the arrest of the plaintiff without warrant, Chief Justice Tilghman, delivering the opinion of the court, says: "The plaintiff insists that, by the Constitution of this state, no arrest is lawful without a warrant, issued on probable cause, supported by oath. Whether this be the true construction of the Constitution is the main point in the cause;" and, after quoting the words of the constitutional provision, continues: "The provisions of this section, so far as concerns warrants, only guard against their abuse by issuing them without good cause, or in so general and vague a form as may put it in the power of the officers who execute them to harrass innocent persons under pretence of suspicion; for if general warrants are allowed, it must be left to the discretion of the officer on what persons or things they are to be executed. But it is nowhere. said that there shall be no arrest without warrant. To have said so would have endangered the safety of society:" Wakely vs. Hart, 6 Binney, 316, 318. The ordinary mode of criminal procedure requires a warrant of arrest founded on probable cause, supported by oath or affirmation, to be first issued against the accused by some magistrate having competent jurisdiction. The accused, who may be an innocent person, thus secures at the outset the efficient guaranties against the oppression of power or prejudice afforded by the moral and legal responsibilities of a public oath, and the liability on the part of his prosecutor to respond in damages if the prosecution be malicious. The fitness and propriety of this procedure, and its equal justice to accuser and accused, make it unwise to depart from it, except under special circumstances or pressing emergencies: In the case of Lloyd & Carpenter, 3 Clark, *58. But the rights of the individuai must yield where the safety and welfare of society are threatened, and hence it has long been recognized that arrests without warrant are justified in cases of treason, felony or breach of the peace, in which actual or threatened violence is an essential element: 1 Hale's P. C., 589; 2 Hawkin's P. C., ch. 13, sec. 8: 1 Burns, J., 287; 4 Blackstone, 292; 9 Bac. Abr., 468; 1 Chitty Cr. Law, 15; Clark's Criminal Procedure, 39; Russell, Crimes, vol. 3, page 83; 4 Am. & Eng. Ency, of Law, 902. In considering the law as applicable to the present case, we have no further concern with so much of it as relates to cases of felony. The indictment is for a misdemeanor, and it is not contended that the acts for which the defendant was arrested amounted to a felony. Consideration of the law is still further narrowed by the fact proven in evidence, as well as charged in the indictment, that defendant was not upon the public highways while engaged in the performance of the acts for which she was arrested, but was in an inclosure, to wit, a tent upon private ground. It does not appear that the entrance to the tent was barred so that forcible means were necessary to enter the inclosure, and the question, therefore, is, in what cases does the law justify officers of the peace in entering private inclosures without warrant and making arrests for acts which do not amount to felonies, but are misdemeanors merely? A careful consideration of the authorities and decisions leads to the conclusion that the peace officer, by virtue of his office and without a warrant, may enter any house or inclosure, the entrance to which is unfastened, and in which there is a nois amounting to a breach of the peace, and may arrest therein any person whom he finds engaged in an affray or in committing an assault in his presence; and if there be an affray in progress within the inclosure, he may even break open the doors to keep the peace and prevent the danger; but unless acts of violence are being committed, or are threatened, or the conditions are such as to indicate the commisssion of such acts, so that an affray is imminent, then an arrest will not be justified by the circumstances: Com. vs. Tobin, 108 Mass. 426; 2 Hale's P. C., 95; Delafoile vs. New Jersey, 16 L. R. A. 500. The facts of the present case do not disclose that the defendant was engaged in the commission of any act of violence in the presence of the officer, nor does it appear that what she was doing was likely to incite acts of violence in others, or that there was anything in the nature of an affray or breach of the peace accompanied by acts of violence in progress, or that the occurrence of such a breach of the peace was imminent at the time the arrest was made. It therefore follows that the element of violence, actual or threatened, which was essential to justify the making of this arrest was wanting. As the arrest of the defendant was not lawful, the subsequent proceedings based upon it are void. The motion of the defendant is therefore sustained, and the indictment is quashed. The foregoing is all that is necessary to be said for the decision of this case as presented, but, in order to prevent possible |