Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-02-06
ARGUMENTS. ON SMOKE LAW
Attorneys Submit Views on 0onstitutionality
Of the Act,
Motion to Quash . Case Against W.
H. Moses Being Heard by
Jadge KinabaH.

Motion to auash the information against
| Mr. W. H. Moses, who is charged with vio-
| lating the smoke law, was today made in
the Police Court before Judge Kinball by
Mr.. H. F. Woodland.
Mr.. Woodland stated as the grounds of
his motion that the information does not
state cause Of action against the defend
ant that the act of Congress for the pre-
vention OF smoke in the District of Column
bia is unconstitutional and void; that IT is
repugnant to the fourteenth amendment of
the Constitution of the United States: that
1t is unreasonable: that 1t does not affect
alike all persons similarly situated; that IL
discriminates against some and favors
others: that the Information does not aver
that the smoke emitted was a public nui-
Sance. and for various other and supdry
reasons"
Mr.. WOodard's Claims.
In the course of his argument Mr.. Wood
ard said: THE act drew no distinction as
to the quantity of time smoke shall be
emitted. Smoke for a minute or a day
was alike declared to be public nuisance.
The starting Of a fresh fire usually gave
rise to greater volumes of smoke and
cloudy weather would beat down the smoke
and the putting on of fresh coal increased
the volume of smoke. The question was.
tons; who should exercise discretion in
the -lnatter2 The -ancwer would be, the
officials charged with the duty of enforcing
the act would exercise a wise and temper
ate discretion, but the citizen would be then
left to the capricious or mistaken judgment
of a public official. Such an act was I'M
reasonable and, therefore, unconstitutional
and void.
Not a Nuisance.
THE information" continued Mr.. Wood
loft ntJy-a in hat fail tn %
that the dense or thick black or gray smoke
emitted from the chimney of defendants
building was a public nuisance.
The mere words Of the act cannot make
a thing a public nuisance when in fact
it is not.
There are some things that were null
sances at common law. The emission of
smoke was not. Whether the emission of
smoke is a nuisance or not is question OF
fact and as question of fact must be de-
termined by the jury. The information
must charge the emission of smoke to be
public nuisance or there is no foundation
for proving II to be before the jury. 1t IS
not sufficient for Congress to declare it so.
1t must have been a public nuisance in
fact and the calling or designating it as
such does not make it so. If the defendant
can establish that the emission of smoke
was not public nuisance he would be en-
titled to an acquittal- No evidence can be
given on this point, unless it is charged in
The information
Another point" he said, ought to COM
mend itself to the serious consideration of
the court Under the act the emission of
smoke for single minute would be a vfo-
lation of the law. Could it be said that
the emission of smoke for sixty seconds
would constitute a public nuisance And
yet If the defendant were prevented from
showing it was not he would be subject to
a fine. In order to show it was not the in
formation must SO charge. Even II there
were devices to consume and prevent the
emission of smoke, yet such devices might
get out of order and upon the slightest
preteXt or the capricious will of an official
the innocent citizen fined"
A Decision Quoted.
Mr.. Mullowny replied for the govern
ment He claimed that the act under
which Mr.. Moses was charged was consti-
tutional and that the Court in General
Term, in the case of the Washington Gas
Light Company against the District of Co.
lumbia. had declared that Congress had
the right to declare that black smoke was
nuisance
Motion OverruIed.
After hearing Mr.. Mullowry Judge KIM
ball said he would override the motion 10
qrash. Mr.. Woodland announced that he
would ask for jury trial for mis- client, and
day will be fixed by Mr.. Mullowny for the
hearing.