The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-02-19

ed, Chief Stahl has gone out OF ONCE
and Tim Donovan has succeeded him.
and probably doesn't care a rap which
way the case IS decided.
The intervening brief just submitted
to the court by Mr.. Clemens is quite
novel In opening il he says:
My connection with this case is so
recent that may be afflicted with Il
new converts proverbiaI over-zeaI, but
it seems to me that the learned counsel
for the respondent have not 'toted fair
in their brief. as I proceed to explain.
when Judge Hazen decided that the
controversy here in controversy was
void, our attention was at first to ap-
peal the case to this court. But investf-
cation revealed the embarrassing ana
painful fact that before reformed and
while I was still in tire bonds of mi
guilty / had induced this entire court, by
a unanimous decision. to decide that a
city cannot appeal Nothing was left us
but to secure the services of some
obliging jointist who would let US use
him and thus by habeas corpus indirect
" review Judge Hazen'S decision We
found a patriot in the petitioner,
member of the african race-a race
which has lonS been noted for its self
sacrificing disposition. Had we applied
to Judge Hazen he would have released
our man in an instant because of his
decision. But we did not wish to get
our client loose We wished to do him
error lies in habeaS corpus, and our eli
ent might enjoy his liberty and we be
nearer our goal. so we IlteQ the nee
eSSary affidavit and came here. We sup
posed it was distinctly understood that
we should so manage matters here that
this court would pass upon the single
question of the validity of this ordi-
nance as to its provisions for imprison-
ment and search and seizure: but we
greatly fear that our associates on the
other side have precluded this and have
wrecked our scheme. On pages 81 and %
of their brief they make the point that,
even if all our contentious be granted,
the ordinance is still good as an ordl-
nance defining an offenSe and providing
for fine; and the authorities they cite
seem to support this proposition. This
court may even add to these other well
known cases of its own selection. .WhaI
will the harvest be-?
IF the court should take the suggest
ed view that the ordinance is valid as to
its definition of the petitioners offense
and as to simple fine for it, and that
the police court therefore had a right to
try him. and that 1T Will be time enough
to pass upon the question whether he
can be imprisoned: if this court should
say that it has sufficient necessary bus
mess on hand to prevent violent ennui.
and that it is not disposed to solicit
constitutional questions to decide mere
ly by way of mental gymnastics know
not what will become of our case. But
it is not my fault If our plan is ruined
the sin be upon the heads OF counsel
for the respondent
However, trusting that the court will
overlook the settled rule in such cases
and will kindly reach out for a chance
to decide the constitutional and statu-
tory questions we have worked so hard
to raise, 1 proceed to consider those
questions-or some of them"
But the supreme court has decided
that the attorneys have not rot down
to the real questions involved in this
special case. They do not want out
side matters discussed and yesterday
they issued an order for new briefs to
be prepared on the two propositions
whether the court has jurisdiction in
this case and whether Gray will be en-
titled to a discharge if any part of the
city ordinance involved is upheld. The
entire order is as follows:
1T is ordered that attorneys for pc
titioner serve brief upon counsel for
respondent within ten days from re-
ceipt of this order. and that counsel for
respondent file reply brief thereto with
in five days from the receipt of brief
for petitioner, on the following ques-
tions:
'First-Will application to this court
for the writ of habeas corpus lie in thi.
case by reason of the provisions of sec
ton GIL of the code, defendant not hav
ing been tried or convicted at the date
of making his application for the writ
''Second-If any part of ordinance
No 2211 of the city of Topeka is valid,
will petitioner be entitled to his dis
charge l1DOD writ of fa haaS corr11S