Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-08-08
THE WRIT DENIED
No Habeas Corpus for General
Manager Schoepf
JUDGE COLE RENDERS els DECISION
The Police Court Had jurisdiction
in the Case.
A n A P P E A L 7 A K E n

Home Railroad Company on New York
avenue. must be taken down, according to
the decision Of Judge Cole this morning in
Circuit Court No. 2. The poles ;1ust be re-
moved as soon as, IL the judgment of the
District Commissioners. it can be done
without Inconvenience to property owners
Or citizens patronizing the line.
In his decision, Judge Co1e after sustain
ing the ordinance on which the prosecu-
ton is based, and indicating that the writ
of habeas corpus must be refused, suggest
ed his opinion that as Congress by it's acts
had shown it's intention to do away with
horse power throughout the city, that
power should not be substituted for the
trolley system. but added that the question
of the time of continuance of the poles was
to be decided in the sound Judgment of the
Commissioners, over which question he had
no control in a habeas corpus proceeding
Authority of the Court.
1.-THE first question that presents itself
upon this application" said Judge Cole, in
rendering his decision on the petition of
William kesley Schoepf to restrain the
Commissioners from removing the poles on
New York. avenue, 'is what the authority
of this court is upon the writ of habeas
corpus under such circumstances; how far
it may or may not review the proceedings
of the Police Court. The Supreme Court
has settled that question. There can be no
doubt about it,"
Judge Cole recited the decision of Mr.
Justice Miller in similar case He said of
that decision:
Recognizing tie doctrine as set forth by
Justice Miller, the counsel for the petitions
er claims that the Police Court was with
out jurisdiction in this prosecution, and the
first contention in that regard Is that the
District of Columbia cannot maintain a
prosecution in the Police Court or elsewhere
in its own name for the removal cf an OBJ
struction in the streets; that the fee of
the street being in the United States, it has
the exclusive right TO protect the property,
and that the acts of Congress which have
been passed in relation thereto clearly in
dicate that that was and is the intention of
Congress. We, are referred to several acts
of Congress, among them section 222 of the
Revised Statutes of the United States, re-
lating to the District of Columbia por-
ton of the act of May 1T,1SiS which pro-
yides that no public reservation, street,
&c, in the city of Washington snail be oc-
cupied by any private person or for any
private purpose whatever. Reference is
also made in the same connection to sec
tions 226 and 221 of the Revised Statutes
relating to the District of Columbia, which
makes it the duty of the cfnef engineer in
charge of public buildings and grounds to
cause obstructions of every kind to be re-
moved frcm streets AMI sidewalks i'll the
city of Washington as have been or may be
improved by the United States, and keep
the same at all times free from obStrLc-
tions Reference IS also made to section
1918 of the Revised Statutes of the United
States, which imposes like duty upon the
Secretary of the Interior in relation 10 pub
lie streets, avenues, squares and reServa-
tions of the United States. The case of the
United States against Cole, which was a
proceeding under this section, for the re-
movai of distractions from public reServa-
tions is referred TO as being an indication
that 1t was understood by the United States
authorities that that was the proper meth
cd of removing an obstruction IN the
streets. Other cases ale also referred to,
but they are of the same general purpose
of the case of the United States against
Cole and undoubtedly that proceeding was
a proper one.
The More Important Question.
"The more important question of this case
is whether that, as an exclusive remedy,
the United States can prosecute a suit of
that character, having that object in view,
or whether the District of Columbia Is also
authorized to prosecute for the purpose of
removing distractions and occupations of
streets where they are illegal. The act of
1871, section Il, gives the board OF publlc
works entire control which was deemed
necessary for keeping in repair streets, ave-
nues and alleys in the city of Washington.
In case of the District of Columbia agt.
Woodbury. the court had this question to
construe, and decided as to the powers of
the Commissioners of the District of Co
lumbia. 1t is said in that case that the
Commissioners have full control of the
streets, &C., and are under duty to keep
public highways of the city in such condi-
ton that they can be used with reasonable
safety. That case decides that the District
of Columbia, municipal corporation, is
liable for damages for any improper OBJ
struction of the streets which may result
in damages to the individual. When the
Woodbury. case went up the whole question
was reargued. 1t was insisted with great
force that the District of Columbia should
not be responsible for damages for the rea-
son that it had no power or authority to
remove distractions. But the Supreme
Court reiterates its doctrine in the Barnes
case and held that the District of Columbia
was liable for these Instructions and it
mrst follow from that principle that the
District of Columbia must have authority
to keep the streets in repair and in proper
condition, and thus the liability for dam
ages arises.
Jurisdiction of the Police Court.
Now, if they have that power, how is it
to be exercised? May it be exercised by
prosecution in the Police Court? The last
act of Congress in relation to the jurisdic-
ton of the Police Court of March, 1891,
says that that court shall have Jurisdiction
of all offenses thereafter committed against
all the laws, ordinances, &c, of the Dis
trict of Columbia. This prosecution being
ca rried on under an ordinance of the Dis
trict of Columbia passed by the city council
In 1862, it is Substantially the same thing
as an act of Congress. 1t follows that if
the ordinance is valid the District of CO.
lumbia has the right to prosecute in the
Police Court.
TT was contended also by the petitioners
counsel that the ordinance is not valid for
the want of authority of the city council
to make it. I have looked into the charter
of 1918. 1t first provides that power should
be given to remove nuisanceS; second, to
open and occupy streets, avenues, &C., and
third, imposes fines and penalties aud for
FIXTURES for the breach Of their laws or
ordinar ces. 1t would seem from that that
the city council would have authority to
pass an ordinance to keep people from i'm
properly occupying or obstructing streets,
and that they would have the authority to
impose a fine or pehalty for the infraction
of such ordinance and provide how that
penalty should be collected or imposed,
But I do not consider that very material
question in the case, for the reason that
Congress, by section 901, R. S., re-enacts
that very ordinance. The: language of the
section is very broad and comprehensive
It thereupon became valid, for certainly
Congress had the authority to pass it, and
it is the same as If Congress had passed
it. 1t is also obvious that that ordinance
is not void, because it does not specify
with certainty the penalty to be inflicted