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Opinion of the Court.

[18 App. the order releasing the petitioner from custody would prevent his prosecution; and hence it becomes an important question to determine just how far the courts should go in reviewing the action of a committing magistrate. There is no doubt but they may go into the merits of the case on habeas corpus, and if the evidence shows the order of commitment to be void, or that an offense could not have been committed, by reason of the undisputed facts, of course the prisoner should be released. Where, however, the magistrate is shown to have acted in good faith, and there is room for a trial court to hold that an offense has been committed by the petitioner, under any law, the order of the magistrate committing to jail for default in giving bail, is a proper and valid judgment, and should not be disregarded in a collateral proceeding.

It may be determined in the progress of this case, should it be investigated by the grand jury, that in order to make out an offense under said section 5418, or section 5479, a technical forgery as known at the common law, must be shown; but still there is room for difference of opinion on that proposition, when the purpose of the said sections, and all their contents, and relative provisions, are considered.

Forgery is briefly defined by some common-law authorities as the "making, malo animo, of any written instrument for the purpose of fraud and deceit." 2 East's Pleas of the Crown, 852. The court uses this language in the case of United States v. Staats, 8 How. 41:

"A genuine instrument containing a false statement of facts, used in support of a claim, the party knowing it to be false, and using it with intent to defraud, presents a case not distinguishable in principle or in turpitude, or in its mischievous effects, from one in which every part of the instrument is fabricated; and when the one is as fully within the words of the statute as the other, we may well suppose that it was intended to embrace it."

However this may be regarded, there is, as it seems to us, probability that the facts stated may constitute an offense under the provisions of section 5440, Revised Statutes United

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States, relating to conspiracy, " to defraud the United States in any manner or for any purpose."

It is claimed by appellee that to defraud the United States, must mean to deprive it of money, wrongfully, or of something of money value; and that a falsehood or trick by which its officers are deceived in the matter of selecting those who are to perform work for it, could not be a fraud against the United States. We do not agree to this proposition.

The Civil Service Commission is a legal agency of the United States, created by act of Congress; and through it the President undertakes to find and appoint such persons as may best promote the efficiency of the civil service; and to that end regulations are prescribed by means of which the age, health, character, knowledge, and ability for the branch of service into which he seeks to enter, of each candidate, may be fully ascertained.

If falsehoods are imposed upon the persons charged with the duty of ascertaining these qualifications, and made to take the place of facts, then the United States is defrauded, is deprived by deceit of the knowledge justly due to its officers in the proper discharge of its business, and it is thereby liable to obtain a less efficient employee.

We think the trial court may properly hold that the appellee's alleged conduct, in co-operation with the candidate in this case, in making a false statement as to her past experience, constitutes an offense under this section 5440; and that such attempt at deception, if successfully carried out, would defraud the United States, within the meaning of the law. United States v. Bunting, 82 Fed. Rep. 883.

We do not wish to be understood, however, as laying down any rule of action, or method of construction, by which the trial court should feel bound; but what we decide is, that in our judgment, the facts presented to the United States commissioner, by the affidavit filed in this case, were of such a character as to justify his order, holding the accused to bail, to await the action of the grand jury; and if an indictment should be found, then all the questions sought to be raised on this habeas corpus proceeding could be properly

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raised in the further progress of the cause in the trial court, and the judgment of that court would be subject to review on appeal, if errors were committed.

It follows from these views, that the order discharging the appellee from custody, must be reversed, and the cause remanded with directions to dismiss the writ of habeas corpus.

MERTZ v. DISTRICT OF COLUMBIA.

BUILDING REGULATIONS; PERMITS.

Where the proprietor of a store cuts a door in a partition wall between his store and the entrance of an adjoining theatre, without applying for or obtaining a permit from the building inspector, he is property convicted in the police court of violating section 182 of the building regulations, relating to theatre entrances and their construction, and is also guilty of violating section 20 of the same regulations, which requires the building inspector to determine whether an intended repair to a building is such as to require a formal permit.

No. 1074. Submitted May 16, 1901. Decided June 18, 1901.

IN ERROR to the police court of the District of Columbia. Judgment affirmed.

The facts are sufficiently stated in the opinion.

Mr. Sidney T. Thomas for the plaintiff in error.

Mr. Andrew B. Duvall, Attorney for the District of Columbia, and Mr. Clarence A. Brandenburg, Assistant Attorney for the defendant in error.

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Mr. Justice BARNARD, Associate Justice of the Supreme Court of the District of Columbia (who sat with the court in the hearing of this cause in the absence of Mr. Chief Justice ALVEY), delivered the opinion of the Court:

This case comes here on a writ of error from the judgment of the police court of the District, wherein the said plaintiff in error, Edward P. Mertz, was found guilty of violating a provision of the building regulations, and sentenced to pay a fine of $10.

From the bill of exceptions it appears, that said plaintiff cut a door in the partition wall between his store and the F street entrance to the Columbia theatre, on March 19, 1900, without a permit from the inspector of buildings. It also appears that such opening did not affect the strength, or stability, of the building; did not increase the cost of insurance against fire; and that its presence does not endanger public safety.

The plaintiff in error claims that the cutting of said door is a minor repair, such as does not require a permit; and that cutting the door without a permit was not, therefore, an unlawful act.

He also claims that the building regulation said to be violated is unreasonable and, therefore, void, if intended to apply to a case such as this is shown to be by the evidence.

By the joint resolution of Congress passed February 26, 1892 (27 Stat. L. 394), the licenses of theatres or other public places of amusement in the city of Washington, were terminated, unless compliance should be made by the holders, within ten days, with such regulations as the commissioners might prescribe for the public safety.

The second section of the said resolution authorizes the commissioners to make and enforce all such reasonable and usual police regulations as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the District of Columbia.

By virtue of the powers vested in them under this resolu

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tion, said commissioners adopted certain regulations, entitled:

"Regulations for the public safety in theatres and other public places of amusement and assembly in the District of Columbia."

These are found in the collection of "building regulations" of 1897, beginning with section 173, although they may properly be classed in many respects with the "police regulations." Section 182 contains this provision:

Every approach to, or exit from a theatre or other place of amusement, through any other building, shall have inclosing walls of brick, stone or iron, and floors and ceilings of approved incombustible, fire-resisting materials, and there shall be no opening through said walls, floors, or ceilings.”

As shown by the bill of exceptions, we must assume that as matter of fact, the cutting of the door in this case, while the store is occupied by the plaintiff in error in the manner stated, does not endanger public safety.

Is that a sufficient cause, however, to authorize the court to set aside the regulation, made by the authority of Congress, and by the public officers specially charged with the duty of providing general rules for public safety in connection with theatres and other places of amusement, where there may be large numbers of people assembled?

It is the exercise of care, which the commissioners are charged to do, to provide against any probability or possibility of fire or panic in, or at the entrance of a theatre, where crowds are so frequently assembled; and if in their judg ment the general regulation quoted, will best protect the public, should the court set it aside in a special case, where its nonobservance might not endanger public safety?

If after the door is held to be properly there, the store of Mr. Mertz should be used for other purposes than those for which it is now used; or if it should be rented to some one for a more dangerous business, and by reason of such dangerous use a fire should occur therein, while the people were in the theatre, or just going out, there would be great danger of injury to those in that entry-way, not

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