Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-09-11
RADE CROSSlN GS
Power of the Commissioners to. Regulate
Protection at Them.
An Act of the Legislative Assembly
That May Prove to Be APP
plicable to the Case.

When the attention of District Attorney
Birney was called this afternoon by q
Star reporter to the opinion of Mr. 8. T.
Thomas. the attorney to the District. in
which Mr.. Thomas holds that the District
Commissioners have no authority to make
police regulations requiring the Baltimore
and Ohio Railroad Company to station
hagmen at all of the roads grade cross
ings. and keep them there at all hours of
the day and night, MIR. Birney stated that
while he had not carefully read Mr..
Thomas opinion, it was undoubtedly true
that in the absence of statutory require
ment railroads are not compelled to SO
protect their crossings.
Act of the LIE gislative Assembly.
The district attorneys attention was
then called to section of the act Of the
legislative assembly of August q, 1871 re-
curing rail- lads to keep at their crossings
flagman with red flag in the daytime,
and in the night time a flagman with flag
ard lighted lamp. Mr.. Birney then said
tory requirement. 1t depended. he thought,
whether Congress, as In the case of the
Baltimore ard Potomac railroad, specially
reserved to itself the right to make such
regulations.
In a case which came before the late
Chief Justice Cartier some years ago, said
Mr.. Birney, in which the road was sued by
some one who complained that the road
had failed. as required by the act of the
legislative assembly. to protect Its cross
ings. the judge sustained the point raised
by the road, that Congress in chartering
the road had reserved to itself the right to
regulate such matters, and that, therefore,
the act of the legislative assembly did not
apply.
II No Reserved Right Was Made.
But" remarked Mr.. Birney, eff no such
right was reserved to Congress when it
chartered the B. and o. railroad. then. ac
cording to the logic Of Judge Carriers
opinion. the act Of the legislative assem-
bly, would. I think. apply, and the B. and
o. railroad could be proceeded against for
failing to protect its grade crossings as re-
Quired by that act"
Mr.. Thomas Explains.
When Mr.. 8. T. Thomas attention was
called by Star reporter to the act Of the
legislative assembly, he said he had not
noticed it, and when asked whether that
act does not compel the Baltimore and
Ohio railroad to maintain fiaRman and
lanternman at every crossing and all
night, until the last train arrives and de-
parts. he stated that he could not say
that the act did not apply. But he ex-
planned that the question which called
forth his opinion was, Had the District
Commissioners authority to make police
regulations requiring the Baltimore and
Ohio railroad to station f1agmen. day and
night. at all of its grade crossngs?"
What He Decided.
Il simply decided" said Mr.. Thomas,
that they have no such authority in the
present state of legislation. The act of the
legislative assembly. If 1t applies, is in itself
police regulation on the subject. and the
question now to be ascertained is, did Con-
gress. in chartering the B. and o. railroad,
expressly reserve to itself the right to alone
provide for such protection? If Congress
did reserve to itself such power 1t may be
doubted whether the legislative assembly
had authority to legislate upon that sub
ject. Just now, not having the acts of Con-
gress relating to the B. and o. railroad be-
fore me, am unable to say whether those
acts reserve to Congress the right to regu-
late the operation Of the road at grade
crossings.
IF they do not reserve such right, then
the act of the legislative assembly would
seem to apply. That is" explained Mr..
Thomas. In conclusion, unless the courts
should hold that the act was a piece of
general legislation, and, therefore beyond
the powers of the legislative assembly"