Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-12-22
COURT OF APPEALS RULES
Appellate Tribunal Reverses Judg'
ment in Land Case.
PROCEDURE MUST BE CHANGED
Commissioner of Patents Upheld.
Gen. Harries Not Liable in DAM
ages for Cleveland Drowning.

That the District Commissioners art
creatures Of statute, possess no implied
powers, and must gather their authorit.
to act from the express terms of the Law
granting it is the dictum OF the Court o.
Appeals of the District of Columbia, ex-
pressed today in an opinion by Mr.. Jus
tice Van Orsdel. When the Comm ssion i
attempt to act under a statute granting
authority. the justice declares, they mus
comply literally with it's requirements
The opinion reverses the judgment o.
| the District Supreme Court. which con
| firmed. over objections of John c. Fay, q
| property holder. a verdict of jury con
demning certain land for an alley in the
| square bounded by Fairmont and Girard
i 18th and 14th streets.
/ Mr.. Fay attacked the allegations of the
| petition for the condemnation of the land
which set out that the commissioners
deemed 1t to the public interest that the
| alley in question should be opened, ano
that a request for the alley had como
from more than one-half Of the owners
| in the square.
Justice Barnard overruled the objections
of Mr.. Fay and allowed the jury to he
sworn and later confirmed the award OF
the jury.
Mr.. Justice Van Orsdel holds the action
| OF the lower court to have been a revers
ible error, for. says the court. "the
mere signing of the petition by the com
missioners does not purport such united
consideration and conference togethe,
upon the subject as Is necessary to au-
thorize an official declaration that the
public interests demand the taking of pri-
vate property for public use. Statutes like
the present, authorizing the taking OF
private property for public use, are to be
strictly construed"
Neither has the court, the opinion
continues, ANY implied jurisdiction in
statute comforting jurisdiction upon the
court to entertain proceeding, pro-
vid.ng legal method Of taking private
property, must be compiled with to the
letter. 1t must clearly appear, either by
express admission of the parties or by
competent eyidence, that all the juris-
! dictiOnal requirements are present be-
fore the court can lawfully proceed
| As to the claim ok9the owner that
| no majority of owners had asked for
the alley. the court said that 1t is clear
| that this allegation could be based only
upon the actual possession Of such a
petition by the Commissioners "When
| the truth of the allegation OF the ex.
lenged by proper objection" Mr.. JUS
tice Van Orsdel declares. "the court
could not in the absence of proof other
than the allegation In the petition as
SuIOc tlldL SuC0 an instrument na0 aC
tually been filed"
The petition In this case is similar
| to all those heretofore filed by the
Commissioners in like proceedings, and
the action of the appellate court will
it is said, make it necessary to hold a
board meeting and to have a written
petition signed by a majority of the
property holders whenever the opening
widening or extending of an alley
within the District is desired.
Sustains Commissioner of Patents.
The Court Of Appeals today sustained
the appeal of Edward B. Moore, commits
sioner of patents. from the writ of man.
ldamus granted last July by Justice
Wright of the District Supreme Court, al
the instance OF William III. Boyer Of New
York. The commissioner had declined
to permit Meyer to have access to GER
tain application papers pending the de-
termination of the question Of title on ap-
peal. The lower court directed a man
damus to issue, holding that the depart
ment must accept the rulings Of the cour,
when no supersedeas bond has been given
on an appeal from that decision.
The appellate court In an opinion b,
4 Mr.. Justice Van Orsdel characterizes tn,
action OF the lower court as an instance
lof Judicial interference with the discrc
tionary power Of an executive officer o
thes government" The commissioner o
authority to control and regulate tn.
course of proceedings in his Office IT, i,
his judgment. action on a pending appli
cation should be suspended temporaril,
for what he deems a sufficient reason
SO long as such suspension does not in
terfere with a positive legal right. {
court will not inquire into the wisdom o
his action.
No right of Boyer having been i'm.
vaded, the court held, and all his rights
heinP cd
sented for Interference by the courts
The order directing the mandamus wa.
reversed and the cause remanded, will
direction to dismiss the petition.
Reversal in Ejectment Case.
Another reversal of the action of the
} lower court was made by Mr. Justice
Van Orsdel in the case of Isaac B. Bur
sey against Isaac S. Lyon. This was ar
eJectment proceeding for the possessio,
Of real estate
| The decision of the commissioner n
patents was affirmed in six appeaIs an,
reversed i'm four others
Gen. Harries Not Liable.
Gen. George II. Harries commandin:
the District of Columbia militia was ex
onerated by the Court of Appeals TODAY o
all responsibility for the death of Melyi,
l.. Cleveland. who was drowned frcm
launch attached to the Us s. Oneida. n "a
Blackstone Island. during a cruise of In
Naval Battalion, y. G. ID. c.. in Noye.n
Der, 1906.
Mr.. Justice Van Orsdel delivered tn
opinion of the court, affirming the actio,
OF Justice Wright In holding that Ger
Harries was not answerable i'm damage
for the death of the boy.
We think the selection O: Bleo ant
Durston. the two officers alleged to hay,
been directly in charge OF the beat an
responsible for the presence of the boz
In the launch. to command the vessel OF
this cruise, under the allegations of tn,
declaration. is not sufficient to attach an,
liability TO Gen. Harries The appoint
ment of these officers to the command il
the last point at which the declaratio,
connects Gen. Harries. either directly o.
indirectly. with the accident. 1t fails I,
charge him with having given any direc
, tions whatever as to the manner in wiscl
the vessel should be run. or how til,
launch should be towed. He was not pres
ent when any OF .the events occurred
which led up to the accident. The act
charged upon which it Is sought To at
, tach liability are too remot, and discon
nected from the acts directly alleged Al
causing the accident TO constitute III.
iproXimate cause.