The evening times., 1895-08-17
COLE .SusTlHs THE LAW
Continued from First Page.

=
to pass the law III question w as denied by the
petitioners counsel in this case. 1tlwas said
that Cong ress did not confer general legis-
lative powers on the assembly. The su-
preme Court of the United States has sus
tanned the contention. But the question
here arising is whether the particular ordi-
nance concerning cruelty TO animals is fair
ly within the scope of the regulations of
authority. l think 1t is.
1T was commended that the legislative
body transcribed It's authority by giving
the courts power to make very heavy SEN
tence or penalty for violation of the ordi-
nance, If the courts saw proper. There are
high authorities, it is true, saying that as
sembies cannot make such sliding scales
OF penalties. But the answer to that argu-
ment is identical with that to the similar
question raised In the schoepf case q few
days ago.
Every instance where the judicial de-
cision has been that the penalty for the
commission OF an offense must be regulated
by the municipal council and not by the
courts, you viii fiud, is where the charter
esta blishing said municipal corporation
has expressly required that it be done.
And there Is reason behind such actiosl.
In these Instances the discretion is TO be
left in a Mayor or justice Of the peace,
or some one supposed to be generally
uuversed in the law. There the argument
is a good Que. Those are petty offices.
But that argument does not hold good
when you have a lawyer as a judge, one
who can distinguish between the degrees
OF heiuousue in the matter brought to
his notice. In those cases it Is always
proper to leave matters to the discretion
of the Judge
..The act under which the arrest of Mr..
Dugan was made was passed August %,
1871. Congress created the police court
of the District Of Columbia q year before.
The provision made was that the Judge
In the police court must be learned In the
law. Such court Is not a petty office.
He is therefore supposed 10 be imbued
with legal discretion, thoroughly compe-
tent to consider the matters falling with
in his notice.
but aside from all this, there was an
act passed by Congress June 20, 1890,
1 have lately discovered, confirming in
a degree the act of 1871. This later act
is entitled An act to prevent cruelty
to children and animals The third Sec
ton refers TO and amends the twelfth
section of the act OF August %, 1871, the
section in question, and thus proves CON-
'clusiveIy that the police court has juris-
diction in the matter, the act being un-
doubtedly now valid.
The only remaining question is whether
the penalty is in excess Of the authority OF
of the police cuurt. It is unnecessary for me
to consider that matter now. In the Shea
case, carried to the Supreme Court. 1t was
decided that IL the police court imposes a
penalty i'll excess of that the law permits
the penalty Is invalid insofar as the max
imum limit Of the law reaches, and no
further
ut is not for ME to determine, though,
whether the police court should imprisoii
for more than one year. That question,
can be brought up on a habcas corpus after
trial, conviction and sentence, If such
should be done. But think the police court
has authority to try the case, and the peti-
toner is remanded TO the custody of its Off
GERS"