the case of Moore v. Illinois, 14 Howard 20, 14 L. Ed. 306, wherein it was said:

"Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the state, a riot, an assault, or a murder, and subject the same person to a punishment, under the state laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses; for each of which he is justly punishable."

CONCURRENT POWER MEANS

Equal power by state and nation to carry out the purpose of the Eighteenth Amendment.

It means co-operating, not conflicting or contracurrent power. There can be no conflict when both powers are used as intended. The Supreme Court well said: "It cannot possibly be that Congress and the states entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated."

It means equal co-operating power to enforce National Prohibition by appropriate means. The court said: "The second section of the amendment does not enable

Congress or the several states to defeat or thwart the Prohibition, but only to enforce it by appropriate means." "Observe also the words of the grant which confines the concurrent power given to legislation appropriate to the purpose of enforcement.

Appropriate legislation to effect the purpose of Prohibition has a well defined meaning. It includes the prevention of the use of intoxicating liquor. Legislative bodies may exercise this power when it is necessary to provide against the evils arising from the traffic. The courts have said repeatedly, "The purpose of legislation to prohibit the manufacture and sale of intoxicating liquors, is to prevent their use. It is clear, therefore, that under concurrent power either the state or the Federal government may go as far as it desires in enacting appropriate Prohibition laws and enforcement legislation, that has a reasonable relation to the purpose of the Eighteenth Amendment. Each may exercise its full power to prohibit, but neither can prevent the other from enforcing its legal Prohibition acts or permit what the other unit of government prohibits.

MUNICIPAL CORPORATIONS-PARKING ORDINANCE VALID

MCGUIRE v. WILKERSON

209 Pac. 445

Criminal Court of Appeals of Oklahoma, Oct. 2, 1922

For provisions of a city ordinance regulating the parking of automobiles and other vehicles, and limiting and providing a zone wherein automobiles, jitneys and other vehicles conveying or transporting passengers for hire, and trucks and drays engaged in the business of hauling freight or merchandise for hire, shall not park, held not to deprive owners and operators of such vehicles of their liberty or property without due process of law, and not to be unreasonable and discriminatory, see body of opinion.

Application for habeas corpus of A. McGuire against W. R. Wilkerson, Chief of Police of the City of Pawhuska, Okla. Writ denied.

Petitioner, A. McGuire, applies for a writ of

habeas corpus, alleging that he is unlawfully restrained by the above-named respondent, Chief of Police of the City of Pawhuska, Okla.; that the cause of said restraint is as follows: That petitioner was, on the 19th day of June, 1922, convicted in the police court of said city of a violation of Sections 1 and 3 of Ordinance No. 36 M of the city of Pawhuska, and sentenced to pay a fine of $16 and $4 costs, and remanded to the custody of said respondent chief of police until said fine and costs were paid.

Petitioner alleges that said ordinance is void and without effect, in that it deprives him of liberty and of the use of his property without due process of law; that said petitioner was engaged in the business of transporting passengers by automobile for hire within and without the city of Pawhuska, Okla., and that said ordinance permits all persons owning and using automobiles, jitneys, trucks and drays to park the same and carry on their business and occupation in the district prohibited to those using such vehicles for hire; that said prohibited district, as defined by the ordinance, includes the entire business district of the city of Pawhuska, except two or three minor businesses carried on away from the business district on side streets; that if said ordinance is enforced against petitioner it will drive him from the business district of Pawhuska and compel him to park his cars and carry on his business in the residence district; that affiant carries on his business in an orderly, quiet, and peaceable manner, commits no nuisance, and molests no one by reason of his business; that the attempt to enforce Ordinance No. 36-M is for the sole purpose of depriving petitioner of his business and destroying the only means of transportation open to the public in the city of Pawhuska; that petitioner is one of several engaged in that line of business, and against whom the city is now attempting to enforce the ordinance; that on the 19th day of June, 1922, petitioner applied to the district judge of the Twenty-fourth Judicial District for a writ of habeas corpus, praying for his release from said restraint, but that upon a hearing said district judge discharged the writ and remanded petitioner to the custody of this respondent. Petitioner attaches to his petition a copy of the order of the district judge in said proceeding, also a copy of Ordinance 36-M

As a return and answer to the writ, the respondent admits that he is chief of police of the city of Pawhuska, and that he has custody of the person of petitioner, and holds such custody by virtue of the authority of a commitment issued by the judge of the police court of said city on a conviction for a violation of

Ordinance 36-M, and that the copy of the ordinance attached to the petition as an exhibit is a true and correct copy thereof; that said ordinance has been in full force and effect in said city since the 9th day of June, 1922; that. on the 17th day of June, 1922, petitioner herein was duly and regularly informed against for a violation of the terms and provisions of said ordinance, as evidenced by a copy of complaint attached to answer; that on the 19th day of June, 1922, petitioner was duly and regularly adjudged guilty of violating Sections 1 and 3 of said ordinance, and fined $16 and costs, taxed at $4, and committed to jail until said fine and costs were paid, as appears by a transcript of the docket of the police court of said city, copy of which is attached to respondent's answer.

Further answering, respondent states that the area in said city in which automobiles and other motor vehicles engaged in the occupation of conveying passengers for hire is prohibited is limited to the congested district of said city, the location of said restricted area being shown upon a map or plat of said city, which is attached to the answer; that as shown on said plat, Main street is 80 feet in width from property line to property line, Osage avenue is 70 feet in width from said lines, Ki-he-kah avenue is 70 feet in width from said lines, Sixth street is 80 feet in width from said lines; that upon each of said streets and avenues sidewalks on each side thereof extend 12 feet from the property line, leaving traffic ways on 80-foot streets 56 feet wide, and on 70-foot streets 46 feet wide, and at places such traffic ways are less than that; that the means of transportation in said city is almost exclusively by automobile or other motor vehicles, and that by reason thereof that the traffic on such streets and avenues, and the parking of such vehicles at the curb, results in practically a congestion of traffic on said streets and avenues, to the extent that the peace, comfort, health and safety of the inhabitants of said city and those lawfully using its streets and avenues and traffic ways is endangered; that as a part of the plan to relieve such congestion, and to otherwise facilitate traffic on such streets and avenues, the board of city commissioners enacted Ordinance No. 36-M, and the enactment of said ordinance was solely for the purpose of relieving traffic congestion in said restricted area, and not otherwise, and this, respondent is informed and believes, was without prejudice to petitioner or others engaged in operating automobiles, trucks, or other conveyances engaged in the business or occupation of conveying passengers for hire; that there are approximately 50 automobiles and other conveyances subject to the provisions of said ordinance, and

re

that permanent parking and the operating of places of business within the congested district, being the restricted arca as set out in the ordinance, has tended seriously to interfere with traffic on said streets and avenues, and is against the peace, health, comfort and safety of the inhabitants of said city and others rightfully entitled to use the traffic ways of said streets and avenues; that the population of said city is approximately 9,000 inhabitants, and is steadily increasing; that it covers an area of approximately two square miles; that, as shown on the map or plat, the area stricted by the ordinance extends to a very small portion of the business section of said city; that a large number of desirable stands for those engaged in operating automobiles for hire, and being in the business district of said city, are not within the restricted area, for which reasons respondent is informed and believes that the provisions of Ordinance 36-M are reasonable, and not intended to, and do not, discriminate against petitioner or those engaged in a similar business, but said ordinance was enacted in good faith, for the sole purpose of promoting the peace, health, comfort, safety and general welfare of the inhabitants of said city, and not otherwise.

The cause was submitted on the 23d day of June, 1922, at which time petitioner was enlarged on his own recognizance, pending final determination of the application.

L. P. Mosier, of Pawhuska, for petitioner. E. E. Grinstead, City Atty., of Pawhuska, for respondent.

MATSON, J. (after stating the facts as above). This proceeding presents the question of the validity of Ordinance No. 36-M of the city of Pawhuska, Okla., effective June 9, 1922, especially Sections 1 and 3 of said ordinance.

Said ordinance is entitled as follows:

"An ordinance regulating the parking of an tomobiles and other vehicles within the city of Pawhuska, Okla.; regulating, limiting and pro viding a zone therein in which automobiles, jitneys and other vehicles conveying or transporting passengers for hire within said city, or trucks or drays engaged in the business of hauling freight or merchandise for hire therein, shall not be permitted to park; and providing a district therein in which the owner or driver of such automobile, truck, jitney or other vehicle engaged in the business or occupation of transporting or conveying or hauling passengers, freight or merchandise for hire, shall not park, solicit business or maintain a stand therein, and providing for necessary signs, markings, traffic regulations and prescribing a penalty for a violation thereof," etc.

Sections 1, 2 and 3 of aid ordinance read as follows:

"Section 1. That all automobiles, trucks and other vehicles, except as hereinafter pro

vided, shall be parked at an angle of forty-five degrees, with the right front wheel touching the curb, on the following designated streets and avenues, and within the following described limits, in the city of Pawhuska, Oklahoma, to-wit: Main street, between its intersection with the east line of Matthews avenue and its intersection with the west line of Leahy avenue; Osage avenue, north of its intersection with the north line of Fifth street; Ki-he-kah avenue, south of its intersection with the south line of Seventh street; and Sixth street, between its intersection with the west line of Leahy avenue and its intersection with the east line of Ki-he-kah avenue.

"Sec. 2. On all other streets and avenues not mentioned in Section 1 of this ordinance, said automobiles, trucks and other vehicles shall park parallel with the curb.

"Sec. 3. No owner or driver of an automobile, truck or dray, jitney or other conveyance engaged in the business or occupation of conveying pasengers or merchandise for hire to or from any place within or without the city of Pawhuska, Oklahoma, shall park, solicit business or maintain a stand either on the streets or avenues or on the sidewalks contiguous thereto within the limits prescribed in Section 1 of this ordinance."

Then follow ten other sections prescribing methods of parking automobiles on various streets, prohibiting parking on certain sides of certain streets, providing for the direction traffic shall take on certain streets, repealing a certain other ordinance of said city, declaring an emergency, all of which provisions are not pertinent to the isues here presented.

No question is raised as to the power of the board of city commissioners of the city of Pawhuska to pass local legislation on the general subject embraced within the ordinance. On the presentation of the application for the writ, counsel for petitioner contended that the ordinance was void on two grounds: (1) That it deprived petitioner of his property without due process of law; and (2) that it was an unreasonable discrimination against the petitioner and those engaged in a similar occupation, and that therefore it is void as an unreasonable exercise of the police power.

[1] Habeas corpus will lie to discharge a prisoner restrained of his liberty by virtue of a conviction based upon a void ordinance.

In re Unger, 1 Okla. Cr. 222, 98 Pac. 999. "The streets and highways of the State belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The State, and the city as an arm of the State, has absolute control of the streets in the interests of the public. * * The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege and not as a matter of natural right." Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942.

*

[2] The petitioner would have no vested right to use the streets for carrying on a private business as a common carrier, and the city has power to regulate the operation of jitney busses over the streets. State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916A, 209; Nolen v. Riechman (D. C.), 225 Fed. 812; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Rast v. Van Deman & Lewis Co, 240 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Desser v. Wichita, 96 Kan. 820, 153 Pac. 1194, L. R. A. 1916D, 246.

[3] A valid ordinance stands on the same footing as a statute, and its construction is for the court Berry on Automobiles (2d Ed.) Sec. 68, p. 80.

[4, 5] Whether or not an ordinance is reasonably necessary is committed in the first instance to the municipal legislative body, and the ordinance when passed is presumptively valid. Berry on Automobiles (2d Ed.), Sec. 69, p. 82.

In Swann et al. v. Baltimore City, 132 Md. 256, 103 Atl. 441, the Court of Appeals of the State of Maryland held a statute of that State "authorizing the board of police commissioners in the city of Baltimore to set aside an desig nate certain places therein to be occupied and used as public or private stands for hackney carriages, to stipulate the number which may occupy and use such stands, and make regulations for their occupation and use, and also providing a fine for violating its provisions and regulations made by the board", to not deprive the owners and operators of such vehicles of their business or property without due process of law.

In Yellow Taxicab Co. v. Gaynor, 143 N. Y. Supp. 279 (82 Misc. Rep. 94), it is held:

or

"Parties maintaining hack stands in the streets under contracts with the owners licensees of abutting property had no property rights in the streets within Const N. Y., Art. 1, Sec. 6, and Const. U. S. Amends. 5 and 14, providing that no person shall be deprived of his property without due process of law, and hence an ordinance abolishing such hack stands was not invalid, since abutting owners could not, by their private contracts, confer any right upon the hackmen inconsistent with the right of the local authorities to regulate the business of hackmen and prescribe reasonable regulations as to the use of the streets."

In Sanders et al. v. City of Atlanta et al., 117 Ga. 819, 95 S. E. 695, it is held:

"A city ordinance, providing that 'no taxicab, motor bus, hack, or other vehicle for hire shall park on any street within the fire limits of the city of Atlanta longer than to discharge or take on passengers, unless in actual service, except in front of railroad stations, and except that three taxicabs or hacks, for the exclusive

use of the patrons of hotels, shall be allowed to park either in front or on the side of hotels where permission is obtained in writing from the proprietor of such hotel', and that 'no hotel proprietor can give permission to park in front of any place of business occupying the store on the ground floor facing the street,' etc., and providing a fine not exceeding $50, or imprisonment on the public works not exceeding 30 days, either or both penalties to be inflicted at the discretion of the recorder for a violation of the ordinance, is valid as against the objection that it is unreasonable and confiscatory. See Berry on Law of Automobiles, Sec. 64; Pugh v. Des Moines, 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345; Com. v Fenton, 139 Mass. 195, 29 N. E. 653; Cohen v. New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506."

In the case of Pugh v. City of Des Moines et al., 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345, the Supreme Court of Iowa held an ordinance prohibiting the parking of automobiles between fixed times in the streets of a restricted area, but allowing them to stand not over 20 minutes while such vehicle is being loaded or unloaded, to be not invalid.

In City Cab Co. v. Hayden, 73 Wash. 24, 131 Pac. 472, L. R. A. 1915F, 726, Ann. Cas. 1914D, 731, it is said:

"The general power of municipalities to reg ulate and control the conduct of hackmen and others soliciting the privilege of carrying travelers from railroad depots to their place of destination cannot, we think, be sucessfully questioned. This the city must do in the interest of good order, public peace and safety." In the case at bar, the petition discloses no property rights which the petitioner would be unlawfully deprived of by the continued enforcement of the ordinance. Petitioner and others operating automobiles for hire in the city of Pawhuska have no property rights in the streets of that city that would be superior to the regulation adopted by the board of commisisoners under its police power as delegated by the laws of this State. The city of Pawhuska, having the authority to pass reasonable regulations governing automobiles operated on its streets for hire, this Court would not be authorized to declare the provisions of the ordinance here attacked unreasonable, unless it clearly appeared that they

were so.

Numerous other cases from various States, construing ordinances and statutes regulating the operation of jitney busses and other automobiles used for hire over the public highways and streets, might be cited. But from what has heretofore been stated, and from the authorities above cited, we think it sufficiently appears that the ordinance in question is not unreasonable, discriminatory, nor arbitrary,

nor does it deprive petitioner of his liberty or property without due process of law.

The writ is denied, and petitioner remanded to the custody of respondent, chief of police of the city of Pawhuska.

DOYLE, P. J., and BESSEY, J., concur.

NOTE-Validity of Parking Ordinances.-An ordinance prohibiting between certain hours, the standing of vehicles on certain designated streets for a longer period than one hour, and prohibiting vehicles from being left standing in certain other streets at all between certain hours, except that vehicles in charge of some person might stand in said streets not longer than 20 minutes while being loaded or unloaded, was upheld as a valid regulation. Pugh v. Des Moines, 176 Ia. 593, 156 N. W. 892; People v. Harden, 110 Misc. 72, 179 N. Y. Supp. 732. An ordinance which prohibits any person from allowing his vehicle to stop in a street for a longer time than 20 minutes is valid, and the fact that one has a license as a hawker and peddler does not exempt him from the ordinance. Com. v. Fenton, 139 Mass. 195, 29 N. E. 653.

An ordinance of Atlanta, Ga., providing that no taxicab, motor bus, hack or other vehicle for hire shall park on any street within the fire limits longer than to discharge or take on passengers, with certain exceptions, was upheld. Sanders v. Atlanta, 147 Ga. 819, 95 S. E. 695.

ITEMS OF PROFESSIONAL INTEREST

IDENTIFICATION BY HANDWRITING

The danger of convictions which rest chiefly on the evidence of handwriting experts was strikingly shown in the Lewes postcard case last year, when the Home Office released a convicted schoolmistress on finding that the libels, alleged to be in her handwriting, continued after she was in gaol. The same danger has been illustrated recently by a case before the Highgate Bench, noted in the daily press, in which a postman was accused of stealing a registered letter, and was proved to be innocent by a most fortunate chapter of accidents. Here complaint was made to the postal authorities that a registered letter had not been received by the addressee; but inquiry showed that the postman had received the letter for delivery and had brought back the official receipt signed 'Dorothy Smith'. Now Dorothy Smith was not the addressee, nor was there any person of that name on the premises; and, on investigation, similarities between the postman's own handwriting and that of 'Dorothy Smith' were discovered. On being asked for an explanation he recollected that he could get no answer when he knocked, but that a woman, who appeared to be a neighbor, had taken the packet for the addressee, and had signed for

it. Unfortunately, no neighbor named 'Dorothy Smith' could be traced. Naturally the case looked conclusive against the accused.

During the remand, however, the real 'Dorothy Smith' saw the case in the newspaper, and at once identified the incident. She had been calling at neighboring premises and had taken the letter for the purpose of handing it over to the occupier of the house to which it was addressed when the latter returned; some delay had occurred in doing so. Her evidence, of course, exonerated the postman entirely. But the moral of all such cases is clear: it is exceedingly dangerous to rely on apparent similarities of handwriting. Handwriting is largely a matter of (1) age, (2) occupation, and (3) the frequency with which a person writes; and where all three conditions happen to be of much the same character in the case of two persons, their handwriting will often appear to have a certain superficial resemblance. Solicitors' Journal, Nov. 4, '22.

BREAD AND WATER DIET FOR JURORS

After the jury, which convicted accused of selling intoxicating liquors, had deliberated several hours, they returned into open court and stated that they were hopelessly hung and stood 10 to 2, whereupon the Court told them that they had not considered their verdict long enough; that it was early in the week, and that he would keep them together for the balance of the week, and along toward the end of the week he would put them on bread and water. While these remarks were held to have been improper, the judgment of conviction was affirmed by the Supreme Court of Arkansas in Holmes v. State, 240 Southwestern Reporter, 425, for the reason that no objection was interposed when the remarks were made.

In the opinion, which was written by Judge Smith, it was said, in discussing the statement "We are all of the opinion that the remark was highly improper and should not have been made; but the majority are of the opinion that the error was waived when appellant failed to object. In their opinion, the attention of the Court should have been called to the possible effect of the remark on the jury, thereby giving the judge an opportunity to withdraw it or to explain that it was not to be taken literally. It is the practice of this court to require an objection to be made in the trial below, and, unless made there, the error will be treated as waived; and this rule has been applied to remarks of the Court as well as to other proceedings at the trial."-Chicago Legal News.