Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-11-01
SAYRES' WRIT DENIED
An Important Decision Given by
Judge Cole Today.
TIE POLICE COURT had JURISDICTION.
Judge KimbaIl Is Judicial Officer
Under the Law.
NO HABEAS CORPUS TO ISSUE.

Immediately after delivering his opinion
;, the Shea case, elsewhere reported in The
Tar. Judge Cole delivered the following
opinion In the case of VIM. B. Sayres. now
undergoing a work house sentence upon
conviction of vagrancy: The applicant In
this case was convicted OF being vagrant
and required to give recognizance, with
security. for his good behavior for six
months, under section 8 Of an act for the
preservation OF the public peace and the
protection of property within the District of
Columbia, approved July %. 1892, and upon
failure to furnish such security was COM
rnitted to the work house for ninety days
by virtue Of the 18th section of said act.
All the grounds upon which he claims his
discharge. except two, have been considered
in disposing of Shea's case, habeas corpus.
No. 2A.
Two Main Grounds.
The two grounds alleged in this case. not
found In the Shea petition are: First, that
the judge of the Police Court had no juris-
diction to try him, but that he was entitled
to jury trial. and second, that Judge KIM
ball of the Police Court. who tried and SEN
fenced him, is not a judicial officer. the act
purporting to create the Office which he
holds being void
The law under which the petitioner claims
that he was entitled to a jury trial Is found
In the act of July q, 1882, in the following
language: I'm all cases where the accused
would not by force of the Constitution of
the United States be entitled to a trial by
jury the trial shall be by the court without
jury, unless in such of said last named
cases wherein the fine or penalty may be
so or more. or Imprisonment as punishment
for the offense may be thirty days or more,
the accused shall demand a trial by jury,
In which case the trial shall be by jury"
Not Entitled to n Jury Trial.
The penalty prescribed by the act of July
%. 1892, for the offense of which petitioner
Is convicted is neither fine nor imprison-
ment. but a requirement that he should give
security in a penalty not to exceed 500 not
to repeat the offense for the space of six
months, and that he should in all other re-
spects conduct himself properly, and the
sentence requires such security in the pen
atty of 800, which petitioner failed or re-
fused to give. whereupon the court COM
Initted him to the wOrkhouse for ninety
days. under the provisions of section Is,
which provides that where the penalty is
a fine or to give security, and the person
convicted fails to pay the one or give the
other, he shall be committed to the work
house not to exceed six months. 1t is
claimed that because Imprisonment may
follow conviction for this offense If the
party cannot or does not give the security,
H..
But In this and like cases, the accused is
not entitled to a jury trial by virtue of
the constitutional provision, but If at all by
virtue of the statute, and that confines the
right 10 cases where a fine of at least $50
or Imprisonment as punishment for the
oHense may be thirty days. This statute
cannot be enlarged by construction to in
clude cases not comprehended by It's terms
and the construction contended for would
SO enlarge 1t. The conclusion, therefore is
that in this class of cases the party is not
entitled to jury trial.
Judge KimbaIPs Office.
The remaining point is that the act ad-
oing another judge to the Police Court
fails to fix the terms for which he shall
be appointed. and the law is for that rea-
son so uncertain and indefinite as to te
Incapable Of execution. The act creating
the Police Court provides for one Judge,
and fixes his term at six years. The act
providing for an additional Judge gives
him the same powers and Jurisdiction and
compensation as the then existing one, but
does not expressly fix the time for which
ne shall be appointed But the last men,
TONED act is amendatory of the first and
conSuufng them together IT might we'll be
neio tnat Congress intended the additional
Judge to be appointed for the same term
tnat the one is provided for in the original
act However this may be IL is not i'm
portant to be determined so far as the re-
n
ever Congress creates an office and pre-
scrfoes duties and compensation but does
TOT Tx the term, the appointing power NAV
appoint Tor a definite term or during the
pressure OF the appointing power In a
large majority of all Appointments made
oy the heads of the executive departments
tne term Is not only not fixed by the statute
SedunS the or1ce, but generally is not
nxeu IN the commission or appointment
MS Is also true of many departmental
omcers appointed by the President and CON
nrmed by the Senate. yet il never has been
uouDted that these are de jure officers For
instance. the assistant secretaries of the
treasury are not appointed for any specified
a. ui anu IL Is also my impression that such
or the cabiret
IN ls6l Congress passed an act creating
the office of register of wills for each of
ahe tnen two counties of this District and
q PROBATE judge for the District but did nor
nx the terms Of either officer The Presi
usnt t appointed them to hold during his
pressure, and upon reference to Mr.. Writ.
men attorney General. of the question
wneIher the commission was a valid one
ne answered in the Affirmative and Said
tnat IN such a case the President might
commission for fixed term or during bis
10 Sdsure. Opinions, Attorneys-General,
No Error shown.
L am therefore compelled to reach the
same conclusion in this case as in Shea's
Ease, lnat there is no error shown by the
peulon "hlch goes to the Jurisdiction of
'ie rOnce court 10 try the case, or to its
power 10 pass the sentence complained of,
and that the prayer of the petition for the
writ Of habeas corpus must be denied
Counsel for Sayres stated that an anoa.,
70 the Court of Appeals would be taken in
the case and also in the case of Shea.