The times., 1898-07-12
JUSTICE COLES OPINION.
The Commissioners May Construe
the HufIdfng Regulations.


Of Mr.. Justice Cole, of the Supreme
Court Of the District Of Columbia, in the
mandamus proceedings against the Dis.
trict Commissioners instituted by Alonzo
o. Bliss:
THE petition in this case prays the
writ Of mandamus requiring the respon-
dents, the Commissioners of the District
of Columbia, to issue a permit to the
relator TO construct an apartment house
on Sixteenth Street northwest, between
X and L Streets, of the height OF 10
feet above the level of the street, If the
plans and specifications therefor shall be
found in all other particulars in sub
stantial conformity to the building regu-
lations
THE relator claims the right TO con-
struct building of said height at said
point under the provisions of the first
paragraph of the fortieth section Of the
building regulations, which is in the fol-
lowing language:
. No building shall be erected or al
tered on any street in the District of CO.
lumbia to exceed in height above the
sidewalk the width of the street in its
front, and in no case shall building
exceed ninety feet in height on a resi-
dent street, nor 10 feet in business
street, as defined in these regulations
except on avenues 160 feet wide where
a height not exceeding l30 feet may be
allowed when the lot IS of sufficient
frontage and depth, in the judgment of
the Commissioners, 10 justify the same
"A schedule of what are 10 be consid-
cred business streets is made part of the
building regulations and Sixteenth Street
Is not among them, and must be consid-
cred resident street within the mean
Ing of those words as used in the said
fortieth section.
The respondents, in their answer,
deny the right of the relator 10 a per-
NIT 10 erect building one hundred and
ten feet high at the place in question.
and contend that. according TO the prop
! er construction of the fortieth section.
buildings of greater height than ninety
/ feet are prohibited on a residence street,
and that they denied the permit in this
ease on that ground.
The relator, on the contrary, main
tains that the exception contained I'm
said section applies alike 10 resident and
business streets, and that the respondents
make no objections to the proposed
helght, on the ground of the width or
depth or the LOT on which he proposes
TO build, he is entitled to run his building
to the height OF 10 feet or might go as
nigh as $50 feet, if he desires, as Six
ieenth Street is wider than the last
] --aNttNaDAANN Ar4EHA % IIdI the real con-
/ troNersy Is whether the said exception
applies TO the business streets only. or
the resident streets as we'll
1t was suggested, rather than serious
ly argued, on behalf of the respondents
at the hearing. that. as the word ave
nue., and not the word street is used
( in the exception, ii does not apply TO
/ Sixteenth Street. as that is not designat-
/ ed as an avenue, but as street on
. u Agf II rnsa or Igrrr
4 is clearly untenable A familiar con-
struc1ion of statutes is that words are
! TO receive their ordinary popular signifi-
/ ration, unless there be something in the
J context To indicate that they are used
! in more restricted or different sense.
/ While there is a shade of difference
! in the definitions of streets and ave
/ nues' as given by the leXicogra piers in
! common parlance. they are synonymous
words. and instead of the context indi-
eating that the word avenue is used
| here in its more restricted sense the
/ use of the words streets and avenues
| throughout the building regulations
shows that they are used indiscrminate-
| ly, as having the same meaning.
/ But there is another argument on be-
half of the respondents which is enti-
tied to more consideration. The first part
| of the section preserves a difference of
/ twenty feet in the maximum height of
buildings on business and resident streets,
while the exception. if il applies TO both
classes of streets, does away with this
1 distinction. II is quite apparent that
| there may be adequate reasons for al
lowing buildings of greater height on
! business than on resident streets. but
| If the construction contended for by the
| relator be adopted, a party would have
| the right TO run buildings as high on
resident street as on a business street.
provided his lot was wide and deep
1 enough to justify il. While the position
4 OF this exception in the context is such
that il would naturally apply to both
/ classes of streets. the court is unable TO
say that the consideration above men
toned is without weight. and that the
/ construction contended for. limiting the
! exception to business streets, is mad
missible.
.'Tt is the well settled doctrine of the
/ Supreme Court that executive and minis
! terial officers have A discretion TO exer-
/ else in constructing statutes which they
have to apply. and enforce in the dis
charge of their duties. and that such dis
! cretion cannot be controlled by manda-
mus If the statute is fairly open to con-
] struction although the court might not
/ adopt the same Interpretation that the
J officer complained of did. The question
! in such cases is not whether the officer
/ has adopted the construction which the
court thinks the proper one, but whether
! the statute is susceptible of more than
one meaning, and whether the one adopt
! ed by the executive officer is reasonable.
There is another view of the case en-
] titled to consideration. Although il is
rule probably without exception in the
| construction of statutes that the opin-
! ions or declarations of the individual
i members of the legislative body, as to
| what was intended by the language used.
! cannot be considered IN interpreting the
I law still ii is TO be borne in mind that
the same body which enacted this regu-
] lation is called upon to construe ii In ap-
plying il, and TWO of the respondents are
the same persons who formulated and
adopted the regulation under considera
! tion. And while the respondents could
not be permitted to adopt an unreason-
| able construction or to construe the same
| regulation differently on different occas-
/ ions still in this case, although the court
/ should be of opinion that the construc-
ton they have adopted was inadmiss-
+ ible in view Of the language used mas
/ much as this seems TO be the first oc-
/ casion they have had 10 construe ii in
/ this particular, even if 1t be admitted
/ that they have used language which con-
( fers right to construct a building high
er than they intended on resident streets