Evening star., 1900-09-17
CONGRESS SHOULD ANSWER
QUERY RERRUING REQUIREMENTS
OF GHHssMOKE LAW.
Opinion Of AttaRney Duvall to Effect
That tsthesStatute Should
Be Mmended.

Mr.. George H. fHarres, vice president
Of the Washtngten Traction and Electric
Company, recently wrote the health oh-
Ger. stating the consideration the company
has given the question of smoke consum-
ers, and requesting an official statement
from the Districts Commissioners to what
they would requiFe as a compliance with
the smoke law, what per cent OF smoke
must be consumed, and what consumer or
consumers the Commissioners would recon-
mend. The health officer laid the commu-
nication before the Commissioners, who re-
ferred 1T to the attorney for the District,
Mr.. A. B. DuvaJl. for an opinion. Today
Mr. Duvall advised them that the request
of the company should have been addressed
to Congress. which body. in his opinion,
can alone give an authoritative reply by
way Of amendment Of the existing law.
In his opinion after quoting at length the
smoke law, an act of Congress approved
February 2, 1890, Mr.. Duvall explains that,
in the cases of Moses ct al. against the
United States, 90 Wash. Law Rep, 59S
the Court of Appeals held the act to be
constitutional and affirmed conviction
Hereunder In it's opinion the court said:
THE defendants offered evidence tending
to show that they had attached to their
furnace, at the time the best known smoke
consumer appliance, but that neither 1t nor
any other, then known, would prevent the
emission of such smoke Yor a brief period
upon each occasion that fire might be
started, or the furnaces coaled' or 'raked
down. provided that soft bituminous coal
be the fuel consumed The evidence was
excluded and exception taken. In this
there was no error. That there may be no
smoke-consuming appliance that will, un-
der all circumstances, prevent the nuisance
is not matter of relevancy. The facts con-
corning them were presumably within the
knowledge of Congress when 1t took ac-
ton, and no provision has been made for
their use. The use of sn1okeless fuel in
stead may have been expressly contem-
plated"
Intention of Congress.
Congress" says Mr.. Duval designed
by this act to accomplish an expressed pur-
pose, namely, the prevention of the ennis
sion of dense or thick black or gray smoke
or cinders from any smokestack or chimney
used in connection with any stationary en-
glne, etc 1t declared such emission to be
a public nuisance. and the Court of Appeals
in the above mentioned case held that it
was within the competency of Congress to
so declare, and that what constitutes pub
lie nuisance under the statute was prma-
rily for the determination of Congress, and,
lastly, question of law for tie court"
1t vii be observed" continues Mr.. Du-
vail, that section of the act declares
that no discrimination shall be made
against any method or device which may be
used for the prevention of smoke, and which
accomplshes the purpose of this act / am
of opinion that it is beyond the province of
the Commissioners to recommend any
smoke consumer or consumers the use of
which they will consider compliance with
the smoke law 1t is likewise beyond their
province to advise what per cent of smoke
must be consumed. for Congress has de-
clared that the emission of the smoke de-
scrthed. and not the emission of any per
centage thereof, shall constitute a public
nuisance per Sc.
"As suggested by the Court of Appeals
Congress is presumed to have been familiar
with the entire situation, and the use of
smokeless fuel may have been expressly
contemplated The Commissioners are di-
rected to detail an inspector or inspectors of
the health department whose duty it shall
be, under the supervision Of the health off,
Ger, to cause all persons violating the pro-
visions of the act to be prosecuted. Con-
gress gave the period of six months from
the passage of the act within which possible
offenders might make necessary provisions
to comply with it's requirement, and more
than one year has elapsed since the expira-
ton of that period ~, i.tE J
The present request should have been
addressed to Congress, which alone could
give authoritative reply by way of amend
ment of the existing law"