#### ANNA R. WIDMAYER AND EDGAR H. BATES v. THE UNITED STATES ET AL.

[Congressional,

11389.

Decided November 11, 1907.]

*On the Proofs.*

The Senate refers to the court under the Bowman Act a hill for the relief of two persons, one the widow of a man who was killed by the falling of a wall of the Northern Liberty market house in the city of Washington; the other a man who was injured at the same time. The court investigates the cases judicially and finds the facts, but not the damages. The questions involved are chiefly those of jurisdiction.

I. The object of the Bowman Act is to relieve Congress and their committees from the inconvenience and labor incident to the investigation of claims, and to secure to the Government the protection of judicial investigation.

II. The *Bowman and, Tucker Acts (22*Stats., 485; 24 lb., 505) are founded upon the necessities of Congress in the discharge of legislative functions.

*520III. The right of the citizen to petition Congress for a redress of grievances is a Constitutional right, imposing upon Congress . tile duty of investigation through committees or this court.

IV. Congress have complete legislative control of the District of Columbia; and either House or a committee thereof may refer to this court a claim against the District.

V.The report of this court in a case under the Bowman or Tucker Act is neither a judgment nor an award, nor a recommendation for the payment of the claim. It is merely a recital of proven facts.

VI.Where a claim referred under the Bowman or Tucker Acts is neither a legal nor equitable demand *in its character,*the court will find the facts,' but can not assess the damages. The relief to be given, if any, will be a gratuity; and the amount of a gratuity must be a matter of legislative discretion.

*The Reporters’*statement of the case:

The following is the history of the case. The legal bearing of the facts are stated in the opinion:

The following bill was referred to the court on the 27th day of April, 1904, by resolution of the United States Senate under an act of Congress approved March 3, 1883, known as the Bowman Act.

[S. 2303, Fifty-eighth Congress, second session.]

“A bill for the relief of Anna It. Widmayer and Edgar H. Bates.

“ *Be it enacted by the Senate and House of Representatives of the United, States of America in Congress*assembled, That the sum of ten thousand dollars be, and the same is hereby, appropriated to pay Anna E. Widmayer, of Washington, District of Columbia, widow of John Widmayer, and Edgar H. Bates, of New York, father of Millard F. Bates, each the sum of five thousand dollars on account of the killing of said John Widmayer and said Millard F. Bates by the destruction of the Northern Liberty market house in eighteen hundred and seventy-two by the public authorities of the District of Columbia, said two sums to be paid out of the revenues of the District of Columbia: Provided, That upon the payment of said sum the said Anna E. Widmayer and Edgar H. Bates, or their personal representatives, shall each execute a receipt in full for all claims for or on account of the deaths, respectively, of said John Widmayer and Millard F. Bates.”

The claimants appeared and filed their petition in this court September 19, 1904.

*521The case was brought to a hearing on loyalty and merits .on the 8th day of June, 1906.

The court, upon the evidence and after considering the briefs and arguments of counsel on both sides, made the following findings of fact:

I. Large public market houses formerly stood on a reser1 vation at the intersection of Seventh and Eighth streets with K street and Massachusetts avenue northwest, in the city of Washington, D. C. The buildings were erected and owned by the city, and the stalls or stands were sold or leased to numerous individuals for market purposes, and were so occupied on September 3, 1872, by persons engaged in that business who had received licenses as stall holders from the' city authorities.

II. The board of public works created by act of Congress (16 Stats., 419, sec. 37) was, in 1872, engaged in making extensive public improvements in the city of Washington, and found that these houses and sheds constituted a serious obstruction to the work then in progress.

III. To avoid delay in carrying out these public improvements and possible litigation with the stall holders therein the board of public works removed the market buildings under an order issued by Alex. R. Shepherd, vice-presideilt of the board, in which the superintendent of public works was directed to remove the buildings and sheds belonging to the Northern Market and to store all private property therein in the reservation “ west of one now occupied by the market,” and to remove the fixtures to the sheds in course of erection on Corcoran square. No notice was given to the stall holders that the market houses would be removed.

IV. Some of the brick walls of the market houses were left standing until the day following the removal on the night of September 3,1872.

V. After the removal of the buildings stall holders appeared on the premises, and among this number was John Widmayer, a butcher and stall holder in the market, who entered therein to remove any of his belongings that might not have been removed from the ruins pursuant to the order. While said John Widmayer was so engaged in the effort to remove his racks and hooks a large section of a heavy brick *522wall of the market bouse which had been left standing on the previous night fell without warning, overwhelming said John Widmayer and Millard F. Bates, a minor, who had accompanied him; and when the two were dug out from under the brick and mortar it was found that both had been killed by the' falling wall. It does not appear that Bates was in the employ of Widmayer, but that he voluntarily entered the premises with Widmayer, and that both voluntarily entered with knowledge that, the wall was standing unsupported, and in the exercise of ordinary care both should have known that the same was liable to fall.

VI. On the night the market building was destroyed the police force of the city of Washington were called on to protect the laborers engaged in pulling down the buildings. No police were on hand on the following day at the time of the killing of Widmayer and Bates, and no rope had been placed around the partly destroyed building and no barriers had been erected and no step taken to warn the public of the danger from the walls left standing.

VII. John Widmayer at the time he was killed was 42 years of age, in good health, and had been a successful business man and supported his family in comfort. He left surviving him a widow, who is the petitioner, and seven children. Nothing was ever paid on account of his death.

VIII. Millard F. Bates was a minor at the time he was killed, being 14 years of age, and was the youngest son of Ijetitioner Bates. Nothing has been paid to the family of this minor child on account of his death.

IX. From the foregoing recitals of fact the court finds the ultimate fact to be, in so far as it is a question of fact, that the matter referred by this bill does not constitute a legal or equitable claim against either the District of Columbia or the United States.

*Mr. John J. Hemflvill*for the claimant.

*Mr. Robert A. Howard,*(with whom was *Assistant Attorney-General J. A. Van OrsdeT)*for the defendants.

Howry, J.,

delivered the opinion of the court:

The jurisdiction of the court exists under an act approved March 3, 1883, commonly known as the Bowman Act .(22 *523Stats., 485). Its object is well expressed by its title, “An act to afford assistance and relief to Congress and the executive departments in the investigation of claims and demands against the Government; ” and the first section is designed to relieve Congress and the committees of that body from the inconvenience and labor' incident to the investigation of claims and demands founded upon supposed legal rights against .the Government. The further object of the act is to secure to the Government the protection of judicial investigation and the consideration of such defenses as may be presented by the Attorney-General and those whom he may select to aid him. These defenses involve pleadings and the examination of witnesses and the procurement of such record evidence pertaining to the matter in hand as the archives of the Government may disclose upon the call of the court. Every claim has the benefit of opposing counsel to cross-examine witnesses offered by claimants; to procure evidence for the Government in rebuttal if it exists, and to arrive at the truth by all those means usual in courts of justice to bring to light all there is in the case. It goes without saying that the Government interests are less likely to suffer where testimony can be sifted in a court of law than in an investigation not judicial in character, because the person interested in the prosecution of a claim before a committee is generally represented by counsel, where the Government is not, and, in the nature of things, can not well be.

The act under which this reference is made, and the extension of that act by the subsequent act of March 3, 1887, commonly known as the Tucker Act (24 Stats., 505), are founded upon the necessities of Congress in the discharge of legislative functions. The Congress may investigate, it is true, as well as appropriate; and this was the practice of the legislative branch, through their committees, before the passage of the acts in question, because of the right of the citizen to petition for redress of his grievances. This is a constitutional right (Amend. I of the Constitution). Though the Congress may and will continue to investigate by their committees such matters as to them may seem proper and make appropriations thereon, the expediency of employing this *524court to assist them in the premises has not been questioned. It is too clear to admit of misunderstanding that Congress intended by the act before us to authorize either House and any committee to obtain the services of the court in ascertaining the facts in any matter or business pending before them. *(Taylor*v. *United*States, 25 C. Cls. R., 75.

Congress have complete legislative control of the District of Columbia. Assuming sole legislative authority over District affairs the Congress deny to citizens of the District the right to vote, or to levy taxes, or to appropriate money, or to incur debt or do any other thing that may or can be done by a city or a county as an integral entity of a State. Any person having legislative business connected with the District is compelled to apply to Congress. (Art. 1, sec. 8, Cons, of the United States.) Under these circumstances there can be no doubt of the jurisdiction of the court to investigate and report a case for such action as Congress may take.

Precluded as the court is from deciding issues of law pertaining to liability, this report can neither be taken as a judgment nor as an award. Neither is it a recommendation for the payment of anything. It is merely a recital of the proven facts. These facts in their relation to the law only constitute material to enable Congress to create a liability by way of gift at discretion. Consequently, no vested right can be considered as acquired by the recital of the facts. As the matter before us is not a legal or equitable demand against the District of Columbia or the General Government, it is for Congress to proceed with the matter as an act of charity, if at all, and by way of exception to the policy of the Government in such cases. The amount of an appropriation, if any shall be made, also rests with Congress. For this reason and because the demand is not a legal or equitable claim, the court can not estimate an amount.

The findings of the court will be transmitted to Congress, together with a copy of this opinion.