
    UNITED STATES vs. EDWARD GREEN.
    Lottery Tickets ; Sale op ; Police Court ; Jurisdiction.
    1. Violations of the Act of April 29, 1878 (20 Stat., 39), to prevent the sale of policy or lottery tickets in the District of Columbia, are triable in this court; the Police Court has no jurisdiction of such offenses.
    2. The Police Court has no jurisdiction over those misdemeanors which by the course of the common law or by reason of the-gravity of the offense are properly triable by jury.
    Criminal Docket. No. 17,181.
    Decided June 23, 1890.
    Justices Hagner, Cox and James sitting.
    Hearing in the first instance of a motion in arrest of judgment.
    
      Motion overruled.
    
    The pacts are stated in the opinion.
    Mr. A. B. Williams for appellant:
    “The Police Court shall have original and exclusive jurisdiction of all offenses not deemed capital or otherwise-infamous crimes, that is to say, of all simple assaults and batteries and all other misdemeanors not punishable by imprisonment in the penitentiary.” 16 St. L., 153, or Sec. 1049 R. S. D. C.
    By the express terms of this act defining the jurisdiction of the Police Court it is given the original and exclusive-jurisdiction of all misdemeanors not punishable by imprisonment in the penitentiary.
    The act creating the offense in question provided first that it shall be a misdemeanor, and second, that the punishment shall be by fine or imprisonment in the District, jail. It' is not an offense known to the common law and in no way can it be said to be a “ capital or otherwise infamous-crime.” Being a non-infamous misdemeanor, it is, therefore, clearly included within that class or group of offenses the jurisdiction of which Congress intended should be vested in the Police Court exclusively. U. S. vs. Marshall, 6 Mackey, 34.
    The Police Court has been in operation as a court continuously since its organization in 1870. It was, therefore, in full operation at the time of the passage of the act creating this offense, and is in full operation now. If, therefore, Congress had intended that the Supreme Court of the District, in criminal term, should have jurisdiction of the offense they were then creating, a provision to that effect would unquestionably have been made. No such provision appears and the jurisdiction of the Police Court over this offense has never heretofore been regarded as doubtful. It has always claimed jurisdiction and both claims and exercises the samé at the present time.
    The precise claim set up on behalf of the Government in this cause is, that because the defendant, after having been arraigned in the Police Court upon an information charging him with this offense, and having entered his plea of not guilty thereto, he then demanded that he be tried by a jury, the jurisdiction of that court is thereby overthrown; and, further, that by the same act on the part of the defendant, another court, to wit, the Supreme Court of the District of Columbia, admittedly without jurisdiction until then, is by that act vested with jurisdiction.
    The sole authority for this transmutation of. jurisdiction, at the will of the defendant, which -was cited in the court below, is to be found in the first section of the Act of Congress, approved June 22, 1874, which is as follows, to wit:
    “ Be it enacted, &c. Sec. 1. That the Criminal Court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information.” 18 St. L., 193.
    
      It plainly was not the intent of Congress in passing this act to enlarge the jurisdiction of what is here termed the “Criminal Court” by taking from the Police Court of the District any part of its jurisdiction. Neither does the act give to the Criminal Court concurrent jurisdiction with the Police Court.
    The true office of the act, as it was passed by Congress, is plainly a very limited one, viz., to endow the Criminal Court with jurisdiction for the trial of all crimes or misdemeanors, if any exist, of which no other court in the District has been given jurisdiction. This clearly appears by the terms of the act itself, for its application is prescribed and limited to crimes and misdemeanors “ not lawfully triable in anj' other court.” The act, therefore, can have no effect upon any crime or misdemeanor, the jurisdiction of which is already provided for by law.
    Messrs. John B. Hoge and A. A. Lipscomb for the United States:
    The defendant’s present position is that the Police Court has original and exclusive jurisdiction of this offense, and he rests upon the decision of this court in the case of the United States vs. Marshall, 6 Mickey, 34, overruling the Buell Case, 1 McArthur, 502, and deciding that the Police Court had power to indefinitely imprison in jail.
    The position of the Government is that the Police Court has no jurisdiction in this case and others of a similar class or grade, by virtue of the decision of the United States Supreme Court in the case of Callan vs. Wilson, 127 U. S., 540, which it is considered overrules the Marshall Case.
    The Act of June 22, 1874, 18 Stats, at Large, 193, Richardson’s Supplement, 85, provides, inter alia—
    “ That the Criminal Court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in the said District not lawfully triable in any other court, and which are required by law to be 'prosecuted by indictment or information.”
    
      The legislative history of the passage of this act throws no light upon the question. It merely shows that the House of Representatives proposed to give, what it styled, the Criminal Court of the District of Columbia, concurrent jurisdiction, with the Police Court, of all crimes and misdemeanors committed in the District. To this, the Senate ■did not assent and the result was the law as it now stands.
    Of course, its construction is not aided by any record or discussion of a bill which did not become a law.
    But subsequent legislation by Congress, affecting this question, is directly in point as determining what is now the jurisdiction of the court.
    Section 763 Rev. Stats. U. 3. for the District of Columbia, ■as it originally stood, reads :
    “Any one of the justices [of the Supreme Court, D. C.] may hold a criminal court for the trial of all crimes and ■offenses arising within the District.”
    As amended by the act “ to perfect the revision of the statutes * . * * relating to the District of Columbia,” •approved February 27, 1877, 19 Stats, at Large, 240-253, Richardson’s Supplement, 264-279, this section now reads:
    “ Said courts shall have cognizance of all crimes and offenses committed within said District; * * * and any one of the justices may hold a criminal court for the trial of all crimes and offenses arising within the'District.”
    It is submitted that this is conclusive of the question. If ;Sec. 783, Rev. Stats. D. C., as originally enacted did not, as it certainly seems to have done, confer unlimited jurisdiction to try all crimes and offenses arising within the District, there can be no question as to the effect of the law as it now stands by virtue of the amendatory act of February 27, 1877. U. S. vs. Schurz, 102 U. S., 394.
    No fuller or stronger purpose to confer jurisdiction can be conveyed than by the employment of the word “ cognizance.” It is defined to be “judicial recognition ; judicial power; jurisdiction.” Anderson’s Die. of Law, 191. .
    
      “A word of the largest import, embracing all power, authority, and jurisdiction ; as in a provision that a particular court shall have full cognizance of capital crimes.” Webster vs. Comoth, 5 Cush., 400.
    “ The power to hear and determine a cause is jurisdiction ; it is coram judice whenever a case is presented which brings this power into action.” United States vs. Arredondo, 6 Peters, 709.
    “Any movement by a court is necessarily the exercise of jurisdiction; so, to exercise any judicial power over the subject matter, or the parties, the question is whether on the case before a court its action is judicial or extra judicial, with, or without, the authority of law to render a judgment or decree'upon the rights of the litigant parties. If the law confers the power to render a judgment or decree then the court has jurisdiction.” Rhode Island vs. Massachusetts, 12 Peters, 718; Grignon vs. Astor, 2 How., 319 ; Peck vs. Jenness, 7 How., 624.
    In this last cited case Mr. Justice Grier said:
    “ It is doctrine too long established to require a citation of authorities that where a court has jurisdiction it has the. right to decide every question which occurs in the cause.”
    In Randall vs. Howard, 2 Black., 585, one of the two questions before the court was that of jurisdiction. Mr. Justice Davis quoted this remark of Judge Grier as a sufficient and conclusive answer to that question.
    “When a court is without jurisdiction it cannot make any order in a cause except to dismiss the suit.” Mail Co. vs. Flanders, 12 Wallace, 130.
    “Jurisdiction is the power to hear and determine.” Cornett vs. Williams, 20 Wall., 249.
    Similar definitions can be produced in abundance from many authorities — State and Federal.
    Now, if the power to determine, to act finally, to conclude with judgment, be a necessary element of jurisdiction, is not ,the converse of the proposition established — that a court which has not been invested with all these powers is-without jurisdiction? — that when the Supreme Court declares that the Police Court does not possess these powers-does it not decide that the court is without jurisdiction of all cases to the determination of which they are essential ?
    Tribunals established by law are not invested with naked powers or functions incapable of employment. They must-be' vital, existent, and active. The power to hear without-the power to determine would involve not only an anomaly-in jurisprudence but an absurdity.
   Mr. Justice Hagner

delivered the opinion of the Court:

The defendant was indicted in the Criminal Court in June, 1888, for a violation of the first section of the Act of April 29, 1878 (20 Stat., 39), entitled “An.act to prevent, the sale of policy or lottery tickets in the District of Columbia.” This section declares;—

“'That if any person shall, within the District of Columbia, keep, set up, or promote or be concerned as owner, agent, clerk, or in any other manner, in managing any policy-lottery or policy-shop, or shall sell or transfer any ticket, certificate; bill, token, or other device, purporting or intending to guarantee or assure to any person,‘or entitle-him to a chance of drawing or obtaining a prize, or share of, or interest in, any prize to be drawn in any lottery, or in the game or device- commonly known as policy-lottery or policy ; or shall, for himself or another person, sell or transfer, or have in possession for the purpose of sale or transfer, or shall aid in selling, exchanging, negotiating, or transferring a chance or ticket in, or share of a ticket in, any policy-lottery, or any such bill, certificate, token or other device, he shall be deemed guilty of a misdemeanor,, and upon conviction thereof shall forefeit and pay á fine of not more that $500 or be imprisoned in the District Jail not less than two months or more than one year, or both, at the discretion of the court.”

The defendant interposed a plea to the jurisdiction of the court, which was overruled; and having been convicted by the jury, he moved in arrest of judgment and assigned •as reasons for the motion—

“First. That exclusive original jurisdiction of the said offense is by lawvested in the Police Court of the District •of Columbia.
“Second. -That the Supreme Court of the District of Columbia, in criminal term, has no original jurisdiction of the .said offense.”

The motion was certified here by the trial justice, and has been heard by us in the first instance.

It appears by stipulation that on June 6,1888, an inform - .ation was filed against the defendant in the Police Court, charging him with the same violation of the statute; and when arraigned there he pleaded not guilty, and demanded a jury trial; and thereupon the Attorney of the United States proceeded to examine ‘witnesses in support of a warrant which had been filed in the Police Court, charging ■the defendant with the same offense, and the court required him to give bail to answer the charge in the Criminal •Court. Báil was given, and this indictment was returned by the grand jury.

The defendant, to show that the Criminal Court has no ■original jurisdiction to punish any violation of the statute in question, but that the exclusive power to do so is vested in the Police Court, relies upon Section 1049, Article 33, of the Revised Statutes District of Columbia-, which was taken from Sec. 1 of the Act of 1870, Chap. 133, and reads thus:

“The Police Court shall have original and exclusive .jurisdiction of all offenses against the United States committed in the District not deemed capital or otherwise infamous crimes, that is to say, of all simple assaults and batteries and all other misdemeanors not punishable by imprisonment in the penitentiary; and of all offenses against the laws -and ordinances of the District in force therein.”

As.the offense is, by the terms of the Act of 1878, constituted a misdemeanor and punishable by confinement in the jail, and not in the penitentiary, this position seems to be sustained by the words of the section; but to arrive at. its proper construction it is necessary to examine other portions of the article, together with the statutes relating to the jurisdiction of the Supreme Court of the District as. construed by this Court and by the Supreme Court of the United States.

Ity Section 3 of the Act establishing the Supreme Court of the District, (1863, Ch. 91, 12 Stat., 763,) it was declared, that “any one of the justices of said court may hold a criminal court for the trial of all crimes and offenses arising within said District, which court .shall possess the same-powers and exercise the same jurisdiction now possessed by the Criminal Court of the District of Columbia.”

Under this section the entire jurisdiction for the trial of all crimes and offenses was undoubtedly vested in the-Criminal Court, as a special term of this court. Seven years afterwards, the Act of 1870, Ch. 133, creating the Police Court, was passed, which carved out of this general jurisdiction so much thereof as Congress designed (and had the right) to confer upon that tribunal. By Section 3 of that Act it was declared “that prosecutions in said Police-Court shall be by information under oath, without indictment by grand jury, or trial by petit jury;” but any party-deeming himself aggrieved by the judgment of said court-might appeal to the Criminal Court, where the case should be tried by a jury as though it had originated there. Sec. 773, R. S. D. C.

This provision, read in connection with the preceding general grant of jurisdiction to the Police Court, must be construed as giving jurisdiction to that court only in “misdemeanors not punishable by imprisonment in the penitentiary,” in which the party accused was not entitled, of right, to a trial by petit jury. In the latter cases, the Police,Court could not be said to have jurisdiction, because it was powerless, by the express words of the enabling statute, to try or hear them by a jury after they were called; and no •court can properly be said to have jurisdiction of a cause unless it has the right to decide every question that may •occur in the trial. Peck et al. vs. Jenness et al, 7 How., 624; Grignon et al. vs. Astor et al, 2 How., 319 ; Cornett vs. Williams, 20 Wall., 24.

Where a com! is without jurisdiction, it is in general irregular to make any order in the case but one to dismiss the suit; except to set aside such order as hád been improperly made before the. want of jurisdiction was discovered. Mail Co. vs. Flanders, 12 Wall., 135.

Hence the jurisdiction of the Criminal Court was loft unimpaired in such misdemeanors as of right were triable by a petit jury; precisely as it was in cases where, by law, the misdemeanor was punishable by confinement in the penitentiary.

The Supreme Court of the United States, in Callan vs. Wilson, 127 U. S., 540, examined the legality of a prosecution in the Police Court for conspiracy, and determined that the reservation of a right to a jury trial upon appeal to the Criminal Court, is not a gratification of the inviolate right to a jury trial guarantied by the third Article and the fifth and sixth Amendments of the Constitution, in cases of the gravity and importance of the prosecution then before them. The court cites with approval the decision of Mr. Justice Blatchford, in re, Dana, 7 Benedict, 14, in which it w^as determined that a prosecution for libel could not be sustained in the Police Court, because that class of offenses was, and had always been, triable by a jury; and the accused w^as “ entitled not to be first convicted by a court and then to be acquitted, but to be convicted or acquitted in the first instance by a jury.”

Of course these provisions of the Constitution were designed only to embrace such prosecutions as at the time of its adoption, by the course of the law, were triable, of right, by a jury.

There was at that time and always liad existed a class of criminal cases which were proceeded against summarily and without the intervention of a petit.jury. To this class of prosecutions these constitutional provisions had no application. The power to dispose of them summarily was undoubted.

The Court of Appeals of Maryland, in State vs. Glenn, 54 Md., 605, says: “In England, notwithstanding the provisions in the Magna Charta of King John, Art. 46, and in that of 9 Hen. III, Ch. 29, which declares that no freeman shall be taken, imprisoned or .condemned ‘ but by the lawful judgment of his peers, or the law of the land,’ it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offenses. And where it is declared that the party is entitled (under the constitution of Maryland) to a speedy trial by an impartial jury, that must be understood as referring to such crimes and accusations as have by the regular course of the law and the established modes of procedure, as theretofore practiced, been the subjects of jury trial. It could never have been intended to embrace every species of accusation involving either criminal or penal consequences.”

Mr. Justice Harlan speaking for the Supreme Court, in Callan vs. Wilson, says:

“Except in that class or grade of offenses called petty offenses, which, according to the common law, may be proceeded against summarily in any tribunal regularly constituted fpr that purpose, the guaranty of an impartial jur£ to the accused in a criminal prosecution conducted either in the name of, or under the authority of, the United States,, secures to him the right to enjoy that mode of trial from the first moment, in whatever court he is put on trial for the offense charged.
Without further reference to the authorities and conceding that there is a class of petty or minor offenses not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury, and which, if committed in this District, may, under the authority of Congress, be tried by the court and without a jury,, we are of the opinion that the offense with which the appellant is charged does not belong to that class.”

In the light of these decisions, the Police Court when organized, had no jurisdiction to enter upon the trial of any misdemeanor which by the course of the common law, or by reason of its gravity or importance was property triable by a jury. It would have been a cruel travesty of justice to enact that a party charged with a serious misdemeanor, although punishable by confinement in a jail instead of the penitentiary, but of a character always triable by a petit jury, should be tried on information in the Police Court; and by the same statute to declare that prosecutions in the court should be conducted without a trial by petit jury, the only agency authorized by the course of the law to determine such case. We are bound to conclude that Congress intended to enact no such contradictory provisions.

It results that when a party is indicted in the Criminal Court for a misdemeanor punishable by imprisonment in the jail, it becomes the duty of that court to ascertain whether the offense charged belongs to the class of offenses, of right triable by a petit jury, or whether it belongs to the class of petty or more trivial breaches of law or of statutory police regulations. If it shall determine that the charge belongs to the former class, it should proceed to hear the case; if to the latter, then the jurisdiction to try it upon information having been confided to the Police Court, it should be tried there.

Addressing ourselves to this inquiry in the case before-us, we are clearly of the opinion that violations of the Act of 1878 cannot be considered trivial or petty offenses; or breaches of mere police regulations. The punishment inflicted by the act may extend to a fine of $500, and imprisonment in the jail■ for one year for each offense; h weighty sentence to be imposed without a jury trial, by a police court, evidently constituted to try minor offenses. In every State where similar statutes have been passed, the offense is cognizable by a court provided with a petit jury. Although formerly permitted by law, and even encouraged, public opinion for nearly half a century almost everywhere in this and all civilized countries has recognized lotteries as fruitful sources of unmitigated mischief; as a cunning scheme by which crafty knaves plunder the silly and credulous; destructive of thrift and honest industry, and pandering to idleness and vice. Tile sale of lottery tickets has been forbidden in this District for nearly half a century, under heavy penalties, and any contract respecting their sale is declared void; and the general statutes of the United States forbids the transmission by mail of any matters connected with their sale. The keeping of a shop within this District for the sale of lottery or policy tickets, is something affecting the entire country; and Congress undoubtedly was impressed with the seriousness of the evil when it passed the Act of 1878, and affixed the severe penalties prescribed in that statute.

To deny the accused the safeguard of a j ury trial on such a charge would he a departure from the practice of the criminal law in cases of such gravity.

It has been insisted on behalf of the defendants that this ruling is inconsistent with the decision of this court in United States vs. Marshall, 6 Mackey, 34, in which it was held the Police Court had jurisdiction of a charge of keeping a bawdy-house. That decision was rendered on the 11th of July, 1887. In accordance with it, the General Term refused to discharge, upon habeas corpus, Callan and others, musicians, who had been convicted in the Police Court of a conspiracy to “boycott” others engaged in the same occupation. But the Callan decision was reversed by the Supreme Court in May, 1888 (127 U. S., already referred to), and so far as that case differs from Marshall’s Case, the former must prevail. In Buell’s Case, 1 MacA., 502, the General Term in 1874 had determined that the Police Court had no jurisdiction in libel; as was decided by Justice Blatchford in Dana’s Case, approved by the Supreme Court-in 127 U. S.; and although one of the grounds of the decision in Buell’s, Case, viz., that the defendant might have been punished in the penitentiary, was undoubtedly incorrect, the reasons assigned by Justices Humphreys and Wylie, in their concurring opinions are fully in accord with the decision of the Supreme Court in the Callan Case.

The further contention of defendant’s counsel that the decision in Callau’s case “expends itself upon the mode of trial heretofore had in that court,” so that the jurisdiction of the Police Court remains undisturbed, though there is no present means of exercising it, for want of a jury, is untenable. It is impossible to conceive of a court having jurisdiction of a case it is unable to try. But while the text of Justice Harlan’s opinion in the Callan Case does not explicitly say the Police Court was without jurisdiction to try a person accused of a misdemeanor which by the course of the law was triable by a jury, it cannot be questioned that the court necessarily decided, as stated in the syllabus of that case, that the Police Court is without constitutional power to try, convict and. sentence to punishment a person accused of a conspiracy, notwithstanding the accused m-aj^ obtain a jury trial on appeal. This would bo in effect, a denial of jurisdiction to the Police Court in that and similar cases. The jurisdiction in that class of cases never having been taken from the Criminal Court by the act creating the Police Court, it of course remains with it still.

Our attention is called to the changes made since 1870 in the language of the Act of 1863 creating the Supreme 'Court of the District of Columbia, by legislation which it •was insisted had diminished in some way its criminal jurisdiction. The changes referred to, in our opinion, can have no such effect.

We have seen that the Act of 1863, Ch. 91, Sec. 3, gave to the Supreme Court all the jurisdiction for the trial of all urimes and offenses arising within the District which was possessed by the old Criminal Court, and this grant remained unchanged in words until the adoption of the Revised Statutes on June 22, 1874. In Section 763, the language was thus printed in the revision: “Any one of the justices may hold a Criminal Court for the trial of all crimes and offenses arising within the District.” But on-.the day the revision was adopted, (six days before the Secretary of State had given the certificate required by the Act of Congress authenticating the revision, and a year before it was’printed), the’ Act of 1874, Ch. 396, was passed, entitled: “An Act conferring jurisdiction upon the Criminal Court of the District of Columbia and for other purposes,” which declared “That the Criminal Court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in-any other court, and which are required by law to be prosecuted by indictment or information.”

It is probable Congress may have thought the language of Section 763, as found in the revision giving the Criminal Court jurisdiction “to try all crimes and offenses arising within the District,” might be considered as not as broad as the original grant in the Act of 1863, which had especially given-to it all the power possessed by the old Criminal Court, and for that reason concluded to pass the Act of 1874, Ch. 396, which, as its title shows, was to confer jurisdiction upon the present Criminal Court. And this provision -was part of the law before Section 763 was printed, in 1875.

The section as thus amended seems to confer as full authority upon the Criminal Court as the original Act of' 1863. The only limitation upon its jurisdiction was that it should not extend to cases “ lawfully triable in any other-court.”

The other change referred to was that effected by Section 2 of the Act of February 27, 1877, Ch. 69, entitled “An Act to perfect the revision of the statutes of the United States, and of the statutes relating to the District of Columbia.” The eleventh paragraph of that section declares that Section 763 is amended by striking out said section and inserting in lieu thereof the following as Section 763:

“Said Court shall have cognizance of all crimes and offenses committed within said District; and of all cases at. law and equity between parties both or either of which shall he resident or shall be found within said District; and also of all actions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiff or complainant; and of all seizures on land or water; and all penalties or forfeitures made, arising or accruing under the laws of the United States; and any one of the justices may hold a criminal court for the trial of all crimes and offenses within said District.”

This Act recognizes the jurisdiction of the Criminal Court in the amplest manner, as comprehending all crimes and offenses committed within the District. Neither of these changes, therefore, diminished the jurisdiction of the Criminal Court.

It is contended by the District Attorney that the Act of 1877 repeals Chapter 393 of 1874, and that the limitation therein to cases “ not lawfully triable in any other court ” has disappeared. But we cannot assent to this view. The Act of 1874-was not stated to be an amendment of Section 763; and in addition to the above language found in its first-section, it contained in Section 2 an important provision declaring that Section 33 of the Judiciary Act shall be applicable to the Courts of the District of Columbia. It is 'impossible to suppose that Congress intended to repeal this provision of the law of 1874 by the Act of 1877; nor do we think it repealed other portions of the former act.

The effect of all the existing statutes on the subject, in our opinion, is to give undoubted jurisdiction in the present case to the Criminal Court.

The objection that we should not recognize the force of the provision in the Act of 1877, because it is “ concealed under the cloak of a correction of errors,” is not tenable. Whether the course is a wise one it is needless to consider; but we know that most important changes in general laws have been frequently made in the form of additions to appropriation bills, or to other acts not germane to their general subject. Such was the case with the two important provisions respecting the testimony of parties and persons interested in suits, which have been so frequently sustained by the court.

Upon the whole case, ive think the motion in arrest should he .overruled; and it is so ordered.  