Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-07-25

nance on the part OF the Police Court
amounts to an abuse of power and the
fifth, that the said ordnance, if it ever
could have been applieai1o the erection of
telegraph wires, vas, FelLthat extent, an
act Of 1866 .e-enacted by secticn 526s ct
States ST
Now the petition alleges the facts to be
that these realtors wefes putting up wires
on poles already erected over 9th street.
While there IS nothing. said in the petition
| as to the height at which they were being
strung. it was stated in the argument that
they were being put up at the usual
height. I think that would be the pre-
sumption that they were being Iut where
telegraph wires are usually put, at con-
siderable distance above the surface of the
street. So that the two questions present
ed on this information to the Police Court
were. first, whether stringing telegraph
wires at that distance above the street
was a violation of this ordinance, which
street or public ground shall he occupied
by any private person; and the second was
whether, If such acts were held to be
violation of that ordinance, the REALTORS
being employees of the telegraph company
| and working for that company and string
ing these wires, were excepted by the act
of 1886 from the operation Of this ordi-
nance; and those were the questions for the
Police Court to determine, and it is said
that it had no Jurisdiction to determine
them. If it had not, a writ of prohibition
will lie; II it had, 1t will not.
The Question to Decide.
IF were sitting here to decide these two
questions myself. it is more than likely 1
would reach a very different conclusion
from what the police judge did; but that
Is not the questten for me. The question
for me IS whettsers Stocking at this ordi-
are said r re >been~befs@ the Polite
Court, l. ~ that the PQlece Court did
not hay, -tion to dhDege of it. The
statute -grante' that jurisdiction.
Judge in his judgment upon the merits, and
think that he committed an error, that
would not Justify me in committing a more
serious error, of granting writ of prohi-
hition, to attempt to correct bis Judgment,
if he made one. 1 think the police judge
had jurisdiction to determine those ques-
lions. 1t is said in argument that the police
judge had no jurisdiction to construe
United States statute, and there Is an Eng
lish case referred to in support of the posi-
ton, which holds long way in that direc-
ton. 1t Is the case of Gould and Gapper,
East, 345 where it was held that writ
Of prohibition will lie to prohibit an inferior
tribunal from constituting a statute improp-
erly, contrary to what common court of
law would construe 1t. But the police judge
Is granted Jurisdiction to construe these
ordinances, and he is granted jurisdiction
also to construe acts of Congress, not ex-
pressly but by implication, for the act
creating the court is an act of Congress,
and the court must certainly have author
ity to construe the act which creates 1t,
and the only act that we have here In ref
erence to the sale of Intoxicating liquors Is
an act of Congress, and Congress has de-
volved upon the Police Court the exclusive
Jurisdiction to construe that as decided by
the Court Of Appeals in recent case. 1
did not study that case in East very much,
but 1t does have very strong bearing to
support the argument of the counsel for the
REALTORS here undoubtedly; but when 1t Is
compared with the language of Mr.. Justice
Gray, which I have just read, where he de-
fined for the Supreme Court what the Of
flee of a writ of prohibition Is and when 1t
will lie, and when 1t will not think
must be governed by that; and he says
that it cannot take the place of writ of
error, or of certiorari, and If l should issue
a writ of prohibition in this cese think II
would be to correct an error. and not to
prohibit the exercise Of a jurisdiction not
belonging to the Police Court.
There is another contention on behalf
of the REALTORS, TO the effect that not only
questions of jurisdiction may be controlled
by a writ of prohibition. but also where 1t
appears that the inferior court is not fair
ly exercising its judgment or has peryerse-
ly decided wrong, and no other remedy ex-
lists There Is an English case. Elston vs..
Rose. 8 b. and s. 500. cited. which at first
view would seem to support that, but upon
a close examination of the case do not
think 1t does
'.There are two cases, however, cited from
South Carolina, where the county court
held that breaking into an clubhouse was
burglary and sentenced the prisoner to
| death, and the court of common pleas, or
| the court of general common law jurisdic-
| ton there, interfered by prohibition, but
have no hesitation in saying that that
| was straining the law. Probably if a court
| was ever justified in doing that, that court
was, for 1t was done to save human life;
| but do not think that those cases can be
used as prece6ents I think it Is clearly
| held by the decisions of the Supreme Court
| of the United States that the writ of pro-
| hibition will lie only where it appears that
| the police court or the court of inferior
Jurisdiction has either not jurisdiction OF
| the subject matter of the particular case,
| or of the parties, or If it has Jurisdiction,
| that 1t Is exceeding the bounds of its par
| ticular jurisdiction in that case.
The Writ Refused.
There was an argument used on be-
| half of the District against the issuing of
the writ of prohibition, based upon the as
| sumption that this court and the Police
| Court have concurrent jurisdiction of these
| offenses against the District. I have not
| considered that question. My impression
| at the argument was against 1t: 1 have
rot considered it, though. II 1t be so, II
| this court and the Police Court have con-
| current jurisdiction, it may have very
| decided effect upon the question OF the
| right of this court to interfere by certiorarf
| in cases of concurrent jurisdiction. This
| court and the justices of the peace have
| concurrent jurisdiction of all civil cases be-
tween 500 and $500, and it is common
every day practice to remove case from
| the jurisdiction Of justice OF the
peace into this court in certiorari
| Now. If this court and the Police Court
have concurrent jurisdiction whether a
party would have right in the discretion
of this court to proceed by certiorari might
| be very serious question. But have not
considered that question. and express no
| opinion upon the point. The writ of pro-
hibition must be refused, the rule dis
| charged and the petition dismissed"
Facts Now Much Stronger.
| The facts in this, the trolley case, against
the lexington and Soldiers Home railroad,
are much stronger, said Mr.. Pugh, than
they were in the case Of the telegraph
wires. In that case there was no charge
made that poles were imbedded in the
street, but simply that the wires were
strung upon existing poles. and poles which
did not exist in violation of law. In order
| to decide In favor of the trolley, Mr..
Pugh thinks that Judge Cole will have to
| reverse his former decision. AS his former
decision was in accordance with the law, he