Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-01-18
COx'S OPINION
On Which the Commissioners Base Their
Raid u
Clearing the Streets fof Distractions
With a Legal Opinion as
WarrRnt.


a decision of Judge Cox in the case of the
District against George Munroe. The de-
PENDANT was convicted in the Police Court
"of obstructing street near It'll street, in
the city of Washington, for private pur-
poses, by placing and allowing to remain
certain stand and building for the pur-
pose of selling eatables thereon, in violation
of an ordinance of the late mayor, board OF
aldermen and board Of common council Of
the late corporation Of Washington, enti-
tied An act relating to public squares,
reservations, Streets ETC.. On appeal to
the Criminal Court the conviction was sus-
taired. A motion for a new trial and in
arrest Of Judgment was thereupon made
and overruled in the following opinion:
Judge Cox's Opinion.
'In the case Of the District of Columbia
VS.. George Munroe, 1 have, since my le-
turn, looked somewhat into the case, which
was discussed last summer. 1 think The in
formation charged the defendant with
keeping something in the nature OF a booth
on the sidewalk, within four D feet of
house. There are three G) or perhaps four
"a actS-one of Congress and the others OF
the city of Washington-which l think ne
cessary to consider in connection with this
case. One is the act of Congress Of 1913,
which is repeated in the revision or me
laws of the District, and the others are the
acts of the city of Washington of 1886, 1862
and, perhaps, 1864. At first examination 1T
would seem that there is a conflict between
the act of Congress Of ls4s. and the act OF
hand, and the act of the city of Washing
ton of 1856 on the other. The act of Con-
eress provides that no open space. public
reservation, or other public ground in the
city of Washington, nor any portion of the
public streets or avenues in said city, shall
be occupied by any private person, or for
any private purpose whatever.
THAT is substantially repeated In the act
of 1862: No open space. public reservation.
street, or any public grounds in this
city, shall be occupied by any private per-
son. or for any private purpose whatever,
urder a penalty of not more than fifty dol
lars $50 nor less than twenty-five dollars
60 per day for every day or part of day
any such place shall be so occupied
"On the other hand, the act of the city of
Washington of 1856 declares that: 1t shall
not be lawful for any person or persons to
place or cause to be placed, or allow to re-
main, any goods, wares, or merchandise, or
on either the footways of any street or
avenue further than four feet from the
building line etc. 1t gives an implied
license to occupy portion of the sidewalk
feet of the building line, and if the subject
matter were the same there, would be di-
rect conflict between this act of 1856 and
the act Of Congress OF 1S4S.'
Attempts to Reconcile.
"Thls act of 1856 also permits builders
while engaged in the construction Of a
house to occupy a portion OF the sidewalk
and street with building materials; so that
there is an apparent conflict between this
act of 1856 and the act OF Congress of 1913.
containing this general, prohibition. Now
1T Is sought to reconcile them by interpret
ing the act of Congress as applicable mere
ly to carriageways, and the ordinance OF
Washington as applicable to sidewalks.
The suggestion is quite q plausible enc,
but it fails wholly to reconcile this act OF
Congress with the act of 1856, which, in eX-
press terms, allows the carriageways to be
taken. and occupied in part by builders
with building material, and ito auctioneers
when displaying their goods for sale in
trent of their places of business. So that
there is still an apparent conflict between
the two ca acts. There Is another consid-
GRAFTON to be weighed in this connection.
In contemplation of law the street includes
the whole space between the building likes,
and the title to the streets Is vested in the
United States. The act of Congress of 1913
is an act of legislation for the protection
of this public highway which is the prop
erty of the United States, and the attempt
to reconcile this act of Congress by the
Interpretation of which 1 I've spoken,
leads us to the conclusion that Congress in
legislating for tt2-:>otection of the streets
purposely omitted to protect the footways
and sidewalks, leaving them open to the
chose to avail themselves Of that privilege.
1t Is difficult to conceive that Congress,
by an act of prohibition of this kind,
would simply protect the carriageWays from
encIoachment,and at the same time leave it
open to anybody to occupy and use the
travelled sidewalks. I do not think, there
fore, that this mode Of reconciling these
acts is to be adopted, and it seems to me
that they can be reconciled by interpret
ing them to apply to different subjects.
The act of Congress and the act Of 1862 of
Washington apply to occupation Of the
street or parts of it; and the act of 1856 Of
Washington applies to distractions in the
streets. Now, these are not convertible
terms. Occupation to be sure is an obstruc-
ton, but an obstruction may not always
be an occupation. For example, in the act
of 1885, there is an implied license to per-
sons to place goods. wares and merchan-
disc on the footways of a street within
four a. feet from the building line, and
we can well understand that as license
to business men to have space to display
their goods in front Of their places of
business, and this would constitute an OBJ
struction, a licensed obstruction; but If
anybody should undertake, under author
ity of that implied license to extend his
bidding out four ~ feet from the building
line it would be obviously something more
than an obstruction; it would be an occu-
patton of portion of the street. So, too,
If he should build new house in connec-
ton with his building that rested perma-
nently within the four feet from the build
ing line, it would be occupation within
the prohibition Of the act of Congress Of
194S, and the act of Washington of 1862;
and it makes no difference in my judg-
ment whether it is a new building connect
ed with an old one, or a separate and dis
tinct one. Anything, which, in the shape
of an obstruction. is intended to remain
permanently upon part of the street. and
to be used by the owner exclusively for his
own private purpose, comes within the de-
scription of an occupation, which is in
hibited by the act of Congress and the or
dinance of 1862.
Broad Distinction.
cit is obvious that there Is broad dis
tinction between transgressi6ns of that act,
Of the kind which I have described, and
the mere temporary use of the sidewalk
by business men in the transaction Of their
legitimate business in the display of their
goods, wares and merchandise in front Of
their stores. There is obviously a broad
line of distinction between the two CD
classes of cases. The goods are put upon
the street temporarily and intended for
removal; that Is a licensed obstruction
under the act of 1856. But to erect any
kind of structure, a booth, addition TO a
house. ETC., and to occupy a part OF the
street the whole time, and to be under the
exclusive control and in the use in that
way of the owner Of the adjoining building,
or a stranger holding under his license,
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