Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-06-15
APPEAL NOT GRAN TED
Government Buildings Anne
nable to Smoke Law.
G O q r T DIVID ED
MAJORITY, HOWEVER, RENDER
AN OPINION.
Case Of Frank W. Palmer Convicted in
the Police Court Case in
Question.
G 0 q RI DIVIDE D

Question.
The smoke law of the District applies to
government buildings as well as to private
business houses, declared the District Court
of Appeals today in an opinion written by
Justice Morris. The court was, however.
divided on the question Chief Justice
Shepard filing a dissenting opinion.
The case came up on an appeal by Frank
w. Palmer. as custodian of the government
printing office, from a Judgment of the
Police Court convicting him of violation
of the smoke law in permitting the issue of
dense black or gray smoke from the CHM
neys of that Office building.
Although there would appear to be some
plausibility in the contention of the appel
liant that executive officers of the govern
ment in this city are not subject to the
municipal regulations, which all other citi-
zens are required to obey, says the decis-
ion. the court finds itself unable to give as
sent to the proposition that there is any
class of officials above the law.
There is not to be one law for the Off
cial,' says the opinion. land another for
the private citizen with reference to the
same duty equally incumbent upon all and
which requires the equal obedience of all.
if the statute, which commands 1t, is to be
at all eff ectual for the purpose for which it
was enacted"
Congress did not intend."' said Justice
Morris in his opinion, Ito suppress the
nuisance of smoke emanating from pri-
vate hotel and at the same time to author
ize 1t ten-fold perhaps hundred fold great
er in volume, In the great public building
across the street.
Applies Equally to ALI.
Municipal regulations intended for the
safety of life and limb and for insuring the
public health. if they would be effectual.
cannot be permitted to be violated with i'm
punity by any one, no matter what may be
his station or his official position and even
though the offender should seek to shield
himself behind the protection of interna
tional privilege. The individual citizen, de-
Sirous to obey the law and to conform to
all its reasonable requirements, will feel
himself sorely tempted in a contrary direc-
ton, and will not be soiicitous to suppress
the nuisance of smoke on his own premises
or to remove the dangerous accumulation
of snow and ice from the sidewalks in front
of his residence. IL on the opposite side of
the street from him the agents of the
municipality or the agents OF the govern
ment are under no obligation on their part
to contribute anything to the public safety
in that regard"
The court holds that the act of Congress
known as the smoke law Is an exercise Of
the police power Of the state and is in
tended to suppress public nuisance in
furious to human comfort. and is to sup
press a nuisance equally deleterious and
equally a nuisance whether committed by
a private citizen or public official. The
act is general and comprehensive and in
the broadcast and most emphatic language
declares the emission Of dense black or
gray smoke from any smokestack or CHM
ney in the District, other than the Chin
neys of exclusively private residences, to
be a public nuisance and punishable as
such. Congress did not content itself with
forbidding and Furnishing the act, but char
acterized the act as a public nuisance in
order that there should be no doubt about
and In order to eliminate the nuisance of
smoke from the District.
For good reasons" says Justice Norris.
which are obvious to every one, the NOV
able engines used for the propulsion of rail-
road trains and steamboats, were excluded
from the operation of the act; and for still
rGore obvious reasons were the chimneys
Of private residences excepted. With these
exceptions the prohibition Is general, and
the buildings used for the business of the
government are as much within the spirit
and the letter and the purpose of the enact
ment as are department stores. Office build
ings and hotels. Were there discrimination
In this regard a grave question OF consti-
tutional right might arise, based upon the
ground of palpable inequality. which such
legislation would then suggest" -
Right and Just.
In concluding the majority opinion Of
the court Justice Morris says: I'VE are of
opinion that the judgment of the Police
Court in this matter was right and just,
and that 1t should be affirmed. But. mas
much as the operations of the government
printing Office might be seriously interfered
with by a rigid enforcement of the act at
the present time, when Congress Is not in
md ovn1fo af lon iyopa n oil
be made to it by the appellant to remedy
the result of past negligence. the munic-
ipal authorities we think. would do well
to exercise discretion in the matter OF fur
Their prosecutions at this time
The Dissenting Opinion.
In his dissenting opinion Chief Justice
Shepard says:
Congress provided by law for the opera
ton of the energies ss the government
printing Office through the use of bitumi-
nous coal without providing at the same
time for the necessary appliances to con-
sumo the smoke therefrom. The single
question for determination is Whether the
act Of Congress approved February 2. $780,
applies to the buildings In the District of
Columbia belonging to and operated by the
United States''
After quoting the statute the chief JUS
tice proceeds: 1.-THE general object of the
exercise OF legislative power Is the enact
ment of laws for the regulation Of acts of
citizens. and not. of the sovereign. And the
universal rule of construction is that the
sovereign state is not bound or its rights
anected by statute of apparent general
application unless expressly named therein
or unless the words used are so clear and
unmistakable as to leave no doubt thar
such was the legislative intention"
Numerous authorities are cited bv tbo
Chief Justice illustrating this principle and
he expresses the opinion that the smoke
law does not apply to the public building
OF the United States in the District of Co
iumbia; that the act was Intended "a a
municipal regulation: that the United States
was not named in the act; that the term
agent or occupant" does not describe the
relation OF the public printer to the owners
OF the building In the case OF the owners
being the United States
1t Is most unreasonable" concludes Chief
Justice Shepard, Ito presume that Congress
contemplated the prosecution and punish-
ment OF the public printer equally with
the agents OF private owners when in the
exercise of ordinary care he was engaged
In the performance of public duties i'm
posed upon him by law with the only
means and appliances provided for the pur-
pose.
TT requires more than inference to con-
49, =