Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-05-24
use OF PUBLIC STREET
Rightof Merchants Upheld by
Court of Appeals.
CONDITIONS NOTED
COURTS COMMENT ON APPEAL
MADE BY DISTRICT.
Reversal of District Supreme Court in
Case of Waggaman
Against Earle.
CONDITIONS NOTED

The right Of the owner of premises to use
the abutting street in reasonable manner
for the purposes of his business upheld
In an opinion filed late yesterday afternoon
by the District Court of Appeals. The ac
ton was taken in the case of Thomas o.
PRODIGY. who convicted in the Police
Court and fined $50 for an alleged obstruc
ton of the public street by permitting a
delivery wagon to stand in front of his
place of business. In reversing the judg-
ment of the Police Court Justice Duell re-
ferred to the case of Gassenheimer against
the District. recently decided, and said that
the opinion in that case should have been
followed in the case of Mr.. Prodigy and this
appeal would have been unnecessary.
Raymond Gets New Trial
A new trial was granted by the Appellate
Court in the case of Albert NJ Raymond
who was convicted Of libeling Maj. Sylves-
ter and other District officials. on the
ground that there was error in the present
ing of additional testimony after the YER
dict had been rendered. Although the pur-
pose of the testimony was to enable the
court to decide as to the character of the
sentence to be imposed, it was a reopening
of the case. Raymond acted as his own
counsel in the trial court but his appeal
was argued by Attorneys A. A. Lipscomb
and Albert Sillers
Lower Court Sustained.
In the case of Bushrod T. Garrison, a
grocer. who was tried and acquitted in the
Police Court on a charge of refusing to sell
a sample of milk to a health department
inspector, the Court Of Appeals yesterday
ha Of tha no
appellate court held that dealer Is not re-
quired to sell to an inspector an amount
less than is usually sold to customers. The
District appealed the case after several
dealers had been acquitted of similar
charges In the Police Court.
In his opinion Justice Morris took occa-
sion to say:
The fact does not appear in the record,
but 1t does appear in the briefs and oral
arguments of counsel in the cause, and 1t
is conceded that the value of a pint of
milk is four cents, and the value of a half
pint is two cents. The amount rendered
by the inspector in this case two cents
for the sample of a half pint which he de-
sired. and the appellee rendered him a pint
for four cents.
Courts Caustic Comment.
so 1t appears that this whole contro-
versy Is over the sum of two cents, and the
time of this court has been wasted and the
money of the United States and of the peo-
pie of the District of Columbia, to the ex-
tent at least five hundred times the amount
involved, has been needlessly expended over
a matter which the slightest amount OF
common sense should have dictated Is i'm
proper to be made a subject of litigation.
Nor is there any question whatever of prin-
ciple involved in this case. If there were,
the ridicuousy small amount of money In
volved might be overlooked. But there is no
such question. And We must say that If
this court had fully understood the scope of
the appellants application for a writ of err
ror the writ would not have been allowed.
ut is true that it Is said this is a test
case. and that the question of the uncon-
stitutionality Of the statute has been sug
gested.
No Ground for Test Case.
But there is no good ground for making
any test case here. and only In the frivolous
and absurd procedure of the District Off
Gals is there any basis for the theory of
nconstitutionality of the section of the
statute here In question. He Zap
pellee) rendered to the inspector a reasona-
bic sample and 1t refused. The differ
ence in bulk and in value between a pint
and half pint of milk, required for the
purpose of analysis is too insignificant as a
matter upon which to base.
"A reasonable sample is what is required
by the act of Congress. Under the cir
cumstances of this case a pint was a rea-
sonable sample, and half pint was not
such a reasonable sample. The appellee
was fully within his rights and fully per-
formed his duty in rendering the former;
the Inspector was wholly at fault in de-
handing the latter and insisting upon 1t
against the will of the appellee"
Waggaman Against Earle.
The decree Of the District Supreme Court
was reversed In the case of Thomas E.
Waggaman, administrator OF James II.
Causten against Henry NJ. Earle, admin
istrator of William E. Earle. deceased The
case grew out of the French spoliation
claims, Mr.. Waggaman having employed
William e. Earle to prosecute certain
claims. The appeal was taken from a re-
port of the auditor to which exceptions
were taken by both sides. The Appellate
Court held that certain items allowed by
the auditor to Mr.. Earle were lobbying
services and were not properly allowable.
The decree confirming the report was there
fore reversed and the cause remanded for
a restatement of the account.
In an opinion by Justice Duell, the APP
pellate Court affirmed the case against An
drew ]. Ct cen, who was sentenced to serve
two years in the penitentiary for the al
legged converting to his own use the pro-
ceeds of two car loads of produce consign-
ed to him as a commission merchant
Green claimed that he was a broker and
not a commission merchant but the opin-
ion holds that the facts sustained the rul-
ing of the trial Judge that Green was a
commission merchant.
Conviction Affirmed.
The conviction of J. Harry Byram, tr,
was also sustained by the Court of APP
peals. Byram former mail carrier
and was charged with secreting and en-
bezZling the contents OF a letter The court
held that the letter was subject to the pos
tai regulations, thus overruing the con-
tention of the appellant that being only
a decoy letter 1t was not one as in purvew
Of the statute was intended to be conveyed
by mail.
Opinions affirming the lower court were
also filed in the cases OF Travers against
Reinhardt and Cherry against Whalen.
The action of the District Supreme Court
was reversed In the case OF Brandenburg
against Uphoff The patent appeal OF Lat
tig against Dean was dismissed and the
cause remanded to the commissioner of
patents. to be dealt with as law and equity
may require.
The decision Of the commissioner Of pat
ents was sustained in the case of Jones
against Cooke and in the matter of the an