Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-05-08
Lower Tribunals Were Reversed in
Four Instances.
8-HOUR LAW CONSTITUTIONAL
So-Called Drainage Act Upset-Liabil-
ity for Repairs to Concrete
Pavements Decided.

bunals appealed from were sustained in
twelve cases and reversed in four in
stances. The eight-hour law was held by
the appellate court to be constitutional, the
so-called drainage act of the District was
upset. the Barber Asphalt Company was
declared to be liable for repairs to con-
crete pavements which before the explra-
ton of five years from the laying had be-
come disintegrated from water and gases,
and the will of DIR. Henry E. Woodbury.,
which provided a fund of $4,000 for Car
field Memorial Hospital and the Children's
Hospital, was sustained.
The judgment of about $4,000 rendered
by the District Supreme Court against the
executors of the estate of the late Dr.
Daniel B. Clarke who was surety on
bond of the late Thomas E. Waggaman
was reversed by the appellate court In an
opinion by MIR. Justice McComas. The
court held that the bond was void because
the equity court had no jurisdiction to en-
tertain the bill of complaint or to decree
a sale of the property. Mr.. Waggaman
was appointed trustee to make sale under
a decree entered upon suit in equity by
a Mrs. Hine to sell a piece of real estate
in which she was bequeathed only life
interest by the terms of her husbands Will.
The court ordered the property sold and
Waggaman gave bond in the sum OF
$4,000, with DR.. Clarke as surety, to Sc
cure the faithful performance of his duty
as trustee. Waggaman proceeded to sell
the land for $500 and failed to account
for the proceeds. After the failure Of
Waggaman, Mrs Hine and her son, who
was entitled to the land or proceeds at her
death. brought suit against Waggaman
and DR.. Clarke to recover on the bond.
Under the 73d Rule.
The District Supreme Court under the
seventy-third rule Of court granted judg-
ment against DIR. Clarke for the $4,000
which was to be entered satisfied on the
payment of 50 800 and interest from ugust,
1899. Dr. Clarke died shortly after the
Judgment was rendered. and his executors
prosecuted an appeal, which resulted yes
terday in a reversal of the action Of the
lower tribunal.
Justice McComas declared that the Equity
Court, being without Jurisdiction to decree
a sale of the land, bond given to carry
out void decree Is itself void and recovery
may not be had on 1t. He remanded the
case to the lower court with directions for
further proceedings not inconsistent with
the opinion Of the appellate tribunal. The
case will probably 60 to the United ted states
The Penn Bridge Company, contractors
on the Piney Branch bridge, must pay
fine of $500 imposed on 1t in the Police
Court for violation Of the eight-hour law
ter, to work more than eight hours In one
day, according to the decision of the Dis
trfct Court Of Appeals rendered yesterday
by Justice McComas. The opinion holds the
law constitutional and defines an extraor-
binary emergency.
The court said:
''In this statute the term extraordinary
emergency imports a sudden and unex-
pected happening to aver imminent dan
ger to health, or life. or property, an un-
usual peril, actual and not imaginary, sud
denly creating a situation so different
from the usual and common order and the
or ordinary instances In the
prosecution Of the public work. that the
court may and must conclude that Congress
contemplated excepting from the operation
Of the law such an occurrence SO sudden,
rare and unforeseen.
Hardening Of Concrete.
I'm the case before us the District and
the contractor should know that concrete
in an arch may not harden In a given
part In eight hours, and since the contract
permitted the District engineers to make
changes in the plans, the contractor might
have contemplated that the excavation
would need greater depth to support the
arch of the bridge than an earlier exam
nation had shown likely to be required
The evidence relied upon by the defendant
would not have justified the jury In con-
GLIDING that either or both Of these cir
cumstances constitute an extraordinary
emergency.
The company In defense Of its action
pleaded the VI fhS 49,
and on that plea being overruled 1t claimed
that the work then in progress came under
the provision of the law for extraordinary
emergency. Along the latter line testimony
was offered to show that the contract had
been changed and the changed conditions
required the bridge company to put In a
certain amount of concrete masonry, and II
was alleged that it was not possible to
do the work specified and required within
a period of eight hours daily work. be-
cause If the work was stopped at the end
OF eight hours the concrete would harden
and might be cleft, causing cracks and
perhaps disintegration of the arch, and
that, on account of the scarcity of labor.
It was necessary to keep men employed
for more than eight hours out of the
twenty-four.
In Favor Of District.
The Barber Asphalt Company decision
by Mr.. Justice Robb in favor of the Dis
trict of Columbia is regarded as of great
Importance to the municipal authorities,
because it involves the construction of the
guaranty clauses in street paving con-
tracts, under which the contractor obligates
himself to keep the pavements laid by him
in repair for period of five years The
particular pavements which were the sub
ject of controversy in this case were on NJ
street from 32d to 36th streets, which were
laid a number of years ago by the Barber
Asphalt Company and which became badly
disintegrated near the expiration of the
guaranty period.
The company declined to repair the pave
ments alleging a reason for it's declina-
ton that the injury to the pavements was
caused by the action of illuminating gas
which escaped from the mains in that
street. The District made the necessary re-
pairs and charged the cost, about 5000
against the retent held by the United States
treasurer as security for the fve-year
guaranty. The Barber people filed suit
for an injunction to restrain the treasurer
from paying any portion of the retent to
the District government on account of the
repairs to the pavements in question. The
lower court sustained the contention of the
complainant and granted an injunction d.
recting the United States treasurer to pay
over the entire retent to the company.
From this decision the District authorities
appealed
Justice Robb. in his opinion reversing the
lower court, holds that under the proper
construction of the guaranty clauses OF
paving contracts the contracting company
Is obligated to keep the pavements laid by
1t in repair for the full period of five years
unless such repairs are made impossible
by the act of God or of the other party to
the contract.
Will of Dr. Woodbury. Upheld.
The court upheld the will of DIR. Henry
E. Woodbury.. by the terms of which a fund