Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-07-25
Similar to That Of the Telegraph
Wires and Poles.
REASONING IN THAf DECISION
Mr.. Pugh Confident That a Writ
Will Be Denied.
THE POLES MUST 60

VIII not near the habeaS corpus case until
Monday. In the meanwhile persons inter-
ested in the move of Prosecuting Attorney
Pugh are specializing on the probable re-
suit Of the proceedings. So far as Mr..
Pugh is concerned, he is confident that
Judge Cole will sustain the prosecution,
and that the poles will have to come down,
and the avenue once more cleared OF the
obstruction.
In speaking Of the case this morning, Mr..
Pugh told a Star reporter that the decision
can. in his opinion. be nothing other than
favorable to the prosecution, and cited the
decision in the case Of stringing overhead
telegraph wires, rendered several weeks
ago by Judge Cole, in which he said:
The Telegraph Wire Decision.
1.-THE case in question here Is an iEforma-
ticn filed in the Police Court against the re-
lators alleging that they had violated an
ordinance of the late corporation Of Wash
ington, approved the ed day Of November,
1862 in the following language: No open
space, public reservation, street, or any
public grounds in the city shall be occupied
by any private person for any private pur-
pose whatever, under penalty Oh not
more than fifty nor less than twenty-five
dollars per day for every day or part OF
day any such place shall be so occupied; to
be collected as other fines, penalties and
forfeitures are collected for the use OF the
city, It is not claimed in the petition that
the ordinance of 1862 Is void for want OF
authority in the corporation to pass 1t, but
that 1t was repealed by the act Of Congress
approved 22d June. 1874; but 1t was contend
ed in argument that 1t Is void for want OF
authority In the corporation to make 1t.
II have not considered the question OF
whether the amended charter of 1913 con-
tanned sufficient authority to the corpora
ton Of Washington to make that ordinance
or not, for the reason that think there Is
no doubt but that Congress has ratified it
and made it its own act, whether the cor
poration of Washington had authority to
pass 1t or not.
Section 81 of the Revised Statutes Of
the United States relating to the District
Of Columbia, which was a section of the
act of 1869 or 1871, 1 do not remember
which Cbut it was the act creating the
board of public works., provided expressly
that all laws and ordinances of the cities
Of Washington and Georgetown not incon-
sistent with this chapter, except as mod
flied or repealed by Congress or the legis-
lative assembly. shall remain in force. 1t
is said in argument that that means only
such as were legal I do not think that that
point is well taken. The express language
Of the act Is that all the ordinances except
those that are Inconsistent with that chap
ter should remain in force, and 1t Is not
Inconsistent with that chapter and I think
that was a ratification absolutely. That is
in accordance with the holding Of the Su-
preme Court in the case Of Mattingly-and
in the case of Shoemaker against the Dis
trict of Columbia, where the Supreme Court
had under consideration the question of the
ratification by Congress Of the acts of the
board of public works, and although the
acts Of ratification there were incidental
and not direct, 1t was held there was q
ratification, and although the acts of the
board of public works were originally void
because without authority. the Supreme
Court said that after the ratification by
Congress they were valid as If they
had been originally authorized by statute
So do not think that there Is any Ques-
ton about the validity of that ordinance at
the time of this prosecution. and we are
not concerned with the question whether
it was originally valid or not.
Nor do I think that it was repealed by
the act of 1874 There Is nothing In the
act of 1874 inconsistent with it. There is
no direct repeal of it, and nothing in the
act Of 1874. that would seem to repeal it by
implication. So I think we must treat that
ordinance as valid.
Other Points Considered.
"Of course II the ordinance was in
valid the Police Court would have no juris-
diction to proceed in the enforcement of
it, and the writ of prohibition would have
been proper remedy. Probably the
remedy might have been by certiorari as
we'll. But as I find that ordinance valid 1t
Is necessary to consider the other points
made in the petition.
1.-The first one is that the REALTORS were
unlawfully arrested and forcibly carried
before the Police Court and the said judge
Of law.
1.-The record shows that these parties
appeared there and pleaded not guilty,
and waived any irregularity in getting
them there, so far as the question of ju1ls-
diction is concerned, certainly The Po-
lice Court, of course, could not proceed to
trial unless it had them properly before
the court, but their plea of not guilty
the purpose of jurisdiction, and If they
were improperly arrested and taken there
their remedy is not prohibition. 1t would
not affect the jurisdiction OF the court
after they once appeared and submitted to
the Jurisdiction by pleading not guilty.
1.-The next point in the petition is that
they were unlawfully convicted under the
said information without jury trial and
the case of Callan VS.. Wilson, 1877 United
States. is referred to as showing that the
Police Court has no jurisdiction to try
them without jury in certain class of
cases, and l think 1t has been made posi-
tive by statute that in this sort of a case
the defendant is entitled to a jury trial.
But the act of Congress that gives the de-
also provides that If he does not demand
jury trial he shall be considered TO nave
waived it.
1.-The first act in relation to jury trials In
the Police Court gave that court turlSdic-
ton to impannel jury to try a case, but
did not say anything about the waiver, and
it was held by the Court in General Term
that the defendant could not waive. While
that statute was in force case was tried,
and there was an express waiver of rec
ord, and the case was tried by the court.
and the defendant was imprisoned under
the judgment, and this Court in General
Term, before the creation of the Court of
Appeals, discharged the defendant on ha-
beas corpus, on the ground that the Police
Court had no jurisdiction to try case
without jury, even upon a waiver, unless
where the defendant was entitled to jury
trial by the law. That case resulted in the
passage by Congress Of an act that gave
the Police Court right to try case that
might come before it, although the party
might be entitled to jury, of which he
made a waiver. expressly Of record. In
case that was prosecuted in this court, Of
second offense of petit larceny, the consti-
tutionality of the aforementioned act was
questioned, and the case went up to the
Court of Appeals. and that court held the
act to be constitutional. (See case Of Belt
agt. the United States. 22d Washington
Law Reporter, page AID
Silence Waiver.
Congress subsequently amended the act,
and provided instead Of a waiver being ex-
pressly made of record that unless the
party demanded a jury trial his silence
cbould he considered waiver NJ n