43 App. D.C. 49 | D.C. Cir. | 1915
delivered the opinion of the Court:
As this court had already ruled that the police court was a proper court of the United States within the meaning of said food and drugs act (Huyler’s v. Houston, 41 App. D. C. 452), and that act required prosecutions to be by the United States district attorney, the writs ought not to have issued, whatever view the court may have entertained of sec. 933 of the District Code [31 Stat. at L. 1341, chap. 854], which provides that if in any case any question shall arise as to whether the prosecution should be conducted by the corporation counsel or by the attorney of the United States for the District of Columbia, the presiding judge shall forthwith, “either of his own motion or upon suggestion of the city solicitor or the attorney of the United States, certify the case to the court of apqjeals of the District of Columbia, which court shall hear and determine the question in a summary way.” The section further provides that “in every such case the defendant or defendants shall have the right to be heard in the court of appeals.”
It is the contention of the appellee that any defendant in any case pending in the police court may, as of absolute right, arrest proceedings therein by raising the question as to who should prosecute him. We do not think this conclusion follows from the language used in the section quoted. Congress knew that a defendant could raise the question regularly as a part of his defense, and that to permit him to take advantage of all tke'provisions of sec. 933 would be to invite almost certain delay in- a class of prosecutions that should be ended expeditiously. Therefore, instead of merely providing that whenever any question should arise as to who should conduct a prosecution the judge should forthwith certify that question to this court, Congress used the qualified phraseology above quoted. We think the language used means that whenever the judge or either of the officials named shall entertain a doubt as to who should conduct the prosecution, the question shall be certified to this court, and not otherwise, and that in the event of such certification the- defendant shall have a right to be heard. Inasmuch
Jndp'ment reversed, with costs, and cause remanded with directions to dismiss the writs Reversed and remanded.