Perth Amboy evening news., 1912-08-31
POLICE TO ASK
| COUNCIL TO AID
Determined that Public Ser
vice Shall Live Up to
Terms of Franchise.
LOSE CASE LAST NIGHT
Recorder undbIe 10 Hold
Conductor for Ejecting Pa
an--0pinioh is Cited.

An action for assault brought by
| Patrolman Charles Quinn against
David Lanburge, a conductor for the
Public Service Railway Company, be-
cause he elected the officer from a
car last Tuesday when he refused to
pay a fare, was dismissed by Record
! er Kehoe, last night on the conten-
ton that there was nothing before
plant will be sworn out and another
action brought upon the return Of
City Attorney Hommann.
Wholesale Arrests Unlikely.
AS the result of decision of the
Supreme Court against Chief of Police
Patrick j. Burke, for arresting Freder-
ick Erwin, another Public Service con-
ductor, method other than the whole
sale arrest Of Public Service employees
may be employed. 1t is the intention
of tho police to fight for rights they
declare the trolley franchise affords
them. To that end they may endeavor
to have the privileges extended to the
trolley company by the city revoked,
unless all terms of the franchise are
binding. The police contend that, if
parts Of the franchise favoring the troll
| ley company are in force, clauses In the
same agreement favoring the city must
likewise be binding.
| In the case of Erwin VS.. Burke, ct al,
heard on demurrer to plea, Judgment
/ was given on demurrer for the plaintiff.
The case was argued in the February
term before Justices Gummere, Garri-
son and Swayze. Frank Bergen, of
Newark, represented the plaintiff, and
| City Attorney c.. G. Hommann appeared
for the defendants.
Opinion in Former Case
| The opinion handed down by the SUI
preme Court follows: "The declara-
tion AYERS that the plaintiff, while en-
gagged in his duty as a conductor of
street railway car, was assaulted by
| the defendants, Burke and Harding.
dragged from his car, and imprisoned
A special 'ea filed by the defendant
Harding, alleges that he was at the
time of the alleged assault, city
policeman on duty, and while lawfully
riding on the car in question was fore
IDLY eJected for refusal to pay the five
cents fare demanded of him by the
plaintiff, and that he thereupon took
the plaintiff into custody in order to
convey him before the city recorder.
70 this plea the plaintiff has demurred.
Upon the facts of the declaration
that are uncontradcted and those of
| the plea that are admitted the question
| presented by this demurrer is whether
n conductor of street car may law
fully be arrestd without warrant for
the ejectment of passenger, who was
in fact policeman, for refusal to pay
his fare.
"We think not.
Assuming that the defendant, by
force of certain city ordinances under
which the street railway company had
constructed its lines, was entitled to
free TRANSPORTATION, and that he has ali
action against such a company based
upon the breach Of such contract or
duty, whichever it may be, that cir
cumstances did rot render his eject
ment for refusal to pay a fare an un-
lawful act Of the conductor
Controversies of this nature are not
to be settled in wrangle between a
passenger, and the conductor over the
payment of fare, nor is the latter
the agent selected by the company to
determine its legal rights and duties,
or to represent it in controversies in
| which they come in question, The mat
ter is set entirely at rest by the decision
of tho Court Of Errors and Appeals in
the c')se of Shelton vs. Erie Railroad
Co., ETC., where, speaking of the agency
of the conductor in this respect, it was
said: 1T is all comprised in his duty
to collect fare from every passenger
or to eject him from the train As
between the plaintiff and the defend
ant, for anything set up in his plans,
was IN the wrong in arresting the plain
tiff.
We do not dwell upon the fact that
the defendant was not in uniform, or
did not tell the conductor that he was
policeman, or that he was on duty,
deemlng these circumstances to be un-
| important, in view of the broad rules
as to the carriage of passengers laid
down by the case cited. The right of
policeman to arrest without warrant
for breach of the peace committed in
his presence has, of course, no rational
application to a case where the police
mar himself provoked the breach and
was IN the wrong, and the man he ar
rested was in the right.
Judgment on demurrer is given for
the plaintiff"
Patrolman Harding was the officer
who arrested Erwin when he would not
let the officer ride free Of charge. Chief
Of Police Burke was made defendant
together with Harding in the $4,000
suit brought by Erwin, for what reason,
he does not know. Judgment was rem
dered to show who was in the right and
who was in the wrong. The defendants
may be charged with costs of the suit.
NAnT lIlAA lAAHnIIAIl