The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-08-01
CITIZEN SCH WAB.

ASSERTING HIS RIGHTS AGAINST THE POLICE
JUDGE SHEA REFUSES AN ORDER OF AEREsr
AGAINST THE LATTER asa
Al about quarter to O'Clock the morning OF
Monday, the I'D OF July last policeman found Tho
saloon OF Citizen Jusius H. Schwab, No SO First
street, open and the redoubtabie Communist within
and prepared to assert his rights TO keep 1t He
says Officer George Mayforth ordered him to close his
saloon but be refused saying he was violating
law by keeping It open at that hour The POLICEMAN
then arrested ana brought him tho station house.
where Sergeant Michael NJ. Rooney caused him
be locked up In coil which he (Schwnb)
says filthy. After b.ng confined from
two until eight o'clock In tho morning he
conducted before Judge Bixby In tho Police
Court, by whom lie was discharged. He has now
brought suit in the Marine Court to recover from
theserscant who imprisoned ana tho oficer who
rested him, So 900 damages claiming that their acts
were wholly unwarranted by law. unjus,habe ana
malicious, aud in contcmptuous disregard OF his
rights The came before the Court yesterday,
application Judge Shea Tor orders civil arrest
against both defendants, and the occasion OF
quite an interesting discussion on Citizen Schwab's
rights IN the promises, and the propriety Of issuing
OF civil sgainst public officers. Although
the application is according 10 genera practice OK
parte proceedings, tho police had been ad vsed Of
what was DO dons, ana represented by Mr.
Charles +. Mclean, counsel TO the Commssioners
while Me- Henry WehIe appeared Tor Schwab
JUDGE suEA's OPINION.
Alter remarking that he not July advised as to
the requirements oil the Excise law, Judge Shea
said 1.-THE question is whether the onlccrs have
acted in such manner that the authority givon them
for the preservation OF the peace was abused by
tncm Their public position eniorces upon them
duties and the act was within the general scope
OF those dutesthRt s to see that the regulations OF
contrary appears the reasonable presumption Is that
they we're in the performance OF their duty Mr..
Schwab's rights as citizen must DO respected. He
has the additional right that he has license gvcu
HIM by the CITY VIII say is the usual proceed
ing, where the papers show that injury has been
DONE TO issue warrant OF arrest. But Whenever n
appears to me or to any Judge that the act mas been
done within the general scopc tho oGcers authority
the warrant should not be ssue1. Great inconven-
icnce would result from having officers arrested whose
duties are 10 protect lives and property and 10
preserve order-to havc them taken away on mere
civil order IRON the performance OF their duties II
that grew into habit would result tnjur ously
tho public aud imp pair the proper efficiency OF the po
| lice AS l am Informed, whenever application Is
made olcer whose duty It IS to preserve
the peace, notice must BIO sent Tor him 10 show cause
why warrant should not be issued and II he shows
cause warrant Will be issued-a course which COM
mends itself TO rcason will now hear II the oiosrs
have anything 10 say
In reply Mr. Mclean Informed tho Court that the
question presented tor its consideration was new. ana
! whom the case came before Judge Bix0y hc was AZ
first Inclined to decide Ia favor OF he police. The TACT
that defendants found the place Of the plaintiff
| y
did close It, He replied tnst sunday was passed
and no bud right TO keep It oDen. and would like TO
and confined him in a CELL with which no Was already
| familiar
settled am that there should 10 any doubs
about a law OF that KIND
Mr.. wohle said the law was notin doubt as far AZ
the police were concerned, they having nxcd upon
| their practice and determined that Sunday cnds at
midnight, In winch they concur with tue asrono-
mers. The Sunday had exproa nttesn minutes or
moro at the time the store was open. IL was well
settled practice Of the Police Department IN this par
tcuar, that hen Tue Law regulating Sunday per-
forapcpx WAS vigorously enforced the propSieors OF
some tae.ires arranged for performances a, twelve
toned thcre. and when the curtain rose they
| ntcrfered.
| Judge Shea hero remarked that finding public
open alter twelve o'clock the inference was thae
| u had been continuously kept open
DETERMINED RIGHTS.
Mr. Weihe-But tho police have authority "a
draw differences. In this case MT. Schwsb has ten.
dered good security. I'VE say that the officers acted
malic0usly, and sode observations by the opposing
cou nse the effect that Mr. Schwao In the cell
with which no had acquaintance, confirms this They
| Communist schwab Now, Mr. Schwab has deser-
mined TO assert his rights.
to protect Mr. schwabs rights In all things, and in
tend that my conduct IN this ease viii SHOW
n..e M scAws0 .ss,S' sms rf. ssur ~
| II Is none oil my business Il Is enough
,Sa he has a., Gsns. INN. ..,ms will re. ain
verdict OF Jury Is In favor OF sch wab Instantly and
before judgment Will issue warrants Of arrest II
the is against him he Will have the gratica-
ton of knowing that he has deprived no citizen OF
liberty without tho verdict Of jury Any person en-
gaged In public life, especially mt this tme La more
anxious than any other tnst citixsn shall DO de-
prived Of liberty without tue verdict Of a Jury.
"ihis,' said both counsel simultaneously, "is per.
| fociIy satisfactory"
Judge shea tnon ordered tina, issue DO Joined ana
tho placed tho calendar for trial on tho nrss
| Tuesday OF September
Citizen Schwab did not make his appearances II
court.