Palmer v. District of Columbia

Mr. Justice Morris delivered the opinion of the Court: The appellant, Frank W. Palmer, was arraigned in the police court of the District, and there was judgment rendered against him'there for the violation of what is known as the “smoke law” of the District; that is, the act of Congress of February 2, 1899 (30 Stat. at L. 812, chap.79), entitled “An Act for the Prevention of Smoke in the District of Columbia, and for Other Purposes.” The act has been repeatedly before this court for construction, and its validity has been uniformly upheld. This, however, is the first occasion in which a public official, charged with the custody and control of one of the great public buildings of the city, has been held for a violation of the act. The appellant is the Public Printer, and the question now to be determined is whether, as the custodian for the time being of the Government Printing Office, he is amenable to the courts for a violation of the law in permitting the issue of dense black or gray smoke from the chimneys of that office. Under the numerous adjudications cited on his behalf, there is undoubtedly great plausibility in the appellant’s contention that the executive offices of the government in this city are not subject to the municipal regulations which all other citizens are required to obey. But we cannot give our assent to the proposition that there is any class of officials above the lawr, or that there is one law for the official and 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 it is to be at all effectual for the purpose for which it was enacted. We cannot think that it was the intention of Congress to suppress — 34 — the nuisance of smoke emanating from a private hotel, and at the same time to authorize it tenfold, perhaps a hundredfold, greater in volume in the great public building across the street. Such discrimination, if it be assumed to exist, would be manifestly unjust, and, by its palpable injustice, would tend to bring the statute into odium and contempt, and would contribute more than aught else to prevent its effective observance. If there is any one principle of our American institutions which is dear above all others to the hearts of our people, and of which the disregard is above all other things repugnant to our sense of justice, it is that of equality before the law. And this principle of equality is more applicable than anywhere else to the matter of municipal regulations. Municipal regulations intended for the safety of life and limb, and for insuriug the public health, if they would be effectual, cannot be permitted to be violated with impunity by anyone, 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 international privilege. The individual citizen, desirous to obey the law and to conform to alí its reasonable requirements, will feel himself sorely tempted in a contrary direction, and will not be solicitous 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, if, on the opposite side of the street from him, the agents of the municipality, or the agents of government, are under no obligation on their part to contribute anything to the public safety in that regard. The act of Congress, for the violation of which the appellant has been charged, is an exercise of the police power of the State, and is intended to suppress a public nuisance injurious to human comfort and human life. The nuisance is equally deleterious and equally a nuisance whether committed by a private person in the management of a factory, store, hotel, or apartment house, or by an officer of the government in the management of a large building, such as the Government Printing Office, temporarily intrusted to his care; and neither in the letter, nor in the spirit, of the law, is there any apparent purpose — 35 — to be found to discriminate against tbe private citizen and in favor of the public official. The terms of the statute are general and comprehensive. In the broadest, and most emphatic language it declares the emission of dense black or gray smoko from any smokestack or chimney in the District, other than the chimneys of exclusively private residences, to be a public nuisance and punishable as such. It did not content itself with forbidding and punishing the act, but it characterized the act as a public nuisance, in order that there should be no doubt about the scope and purpose of the enactment, and in order to eliminate the nuisance of smoke from the District of Columbia. For apparently good reasons, which are obvious h> everyone, the movable engines used for the propulsion of railroad trains and steamboats were excluded from the operation of the act. And for still more obvious reasons, of which this court may take judicial cognizance, namely, because in them hard or anthracite coal was almost universally used, which emits little or no smoke, the chimneys of private residences were specially excepted. But, 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 enactment as are department stores, office buildings, and hotels. Indeed, were there discrimination in this regard, a grave question of constitutional right might arise, based upon the ground of palpable inequality, which such legislation would then suggest. The same general purpose is evidenced in the sweeping enumeration of the persons liable to the penalty of the act, which comprise “the owner, agent, lessee, or occupant of any building of any description.” Here, of course, if the scope and purpose of the enactment were such as to exclude the agents of the government from its operation, we would not hesitate to hold, in accordance with the adjudications and with well-established principles of law, that these were not intended to be embraced within the statute, notwithstanding its very general and comprehensive language. But when we find the purpose to be general, and to be best subserved by the inclusion of the agents of the government, and when the language of the statute is amply sufficient in its — 36 — generality to include such agents, we fail to see why they should not be regarded as embraced within its terms. This conclusion is further strengthened by the 5th section of the act, which prescribes “that no discrimination shall be made against any method or device which may be used for the prevention of smoke, and which accomplishes the purpose of this act.” This would seem to be rather a direction by Congress to the agents of government than an intimation to private citizens that they are entitled to use any proper device for the prevention of smoke. As an acknowledgment of private right in individual citizens, it would be meaningless; as a direction to officers of government, it was eminently right and proper to insert it in the act; and the fact of the insertion of such a provision tends to show that the Congress intended that the officers of the government in charge of public buildings should be included within the purview of the act. On behalf of the appellant, reliance is placed upon the well-established rule of law that where the State is not named in an enactment it is not bound by its provisions. Thus, the State ordinarily is not bound by the statute of limitations to which individual citizens are held, and there are numerous other illustrations to be found in the books; but this rule, it seems to us, is not here applicable. The appellant is not the State, nor does he represent the State, in this case. On the contrary, the State, or its representative, the municipality, is the party in interest against him. The State is interested, even as against its own officials, in having its laws enforced, especially those laws which are made for the preservation of the public health. It is not left to the public officials to determine for themselves whether they will obey the laws or not. It is not left to them to create a public nuisance at their pleasure, and then shield themselves behind the pretense that they are the State and cannot be held for that which the legislature expressly prohibited from being done. In France, in the days of Louis XIV., when he said that he was the State, this plea might hold. It might have availed a defendant even in the days of personal government in England, when the infamous maxim was in force that the King could do — 37 — no wrong, and his officers were shielded by his privilege. But we cannot see how, in our country, and in this age and generation, a public official, charged with the commission of a piiblic nuisance, which the legislative power of the State has endeavored most rigidly to prohibit, can protect himself by the claim that in the performance of the act he represents the State. "We have held in the case of Roth v. District of Columbia, 16 App. D. C. 323, that the municipality, even in the course of its performance of its governmental functions, is not entitled to perpetrate a nuisance. And the same rule will apply still more strongly to the executive officers of the government, whose duty it is to execute and obey the laws, not to violate them. All laws are presumed to be consistent with each other until the contrary is shown; and, therefore, it is no excuse to a public official to secure him immunity for the violation of one law that he is obeying another. He must obey both. He must take all laws as qualifying each other, and, if he is the Public Printer, he must do the public printing under such rules and regulations as Congress has prescribed; and especially he must not do it under such conditions as Congress has prohibited. Apart from the general principles which we have considered, and which we hold do not excuse him, the plea of the appellant is that he made estimates for the use of soft coal in the building under his charge; that he submitted those estimates to the proper committees of Congress, and that Congress approved them, and made its appropriation of money for the conduct of his office in accordance with them. But we fail to see how, in law or in reason, this affords any justification for a violation of the law against public nuisances. If this were the case of an agent for a private building, submitting to an absent or intangible owner, an estimate for the soft coal to be used in such building, and having the approval of such owner for his estimate, could it reasonably be contended for one moment that such estimate and approval would relieve the agent from liability for the creation of a public nuisance ? Repeatedly in this court have we heard in this connection the pleas of parties that they have taken all the precautions in their power, and yet have been unable to prevent the — 38 — prohibited emission of smoke from their chimneys; but, in the face of the express prohibitions of the act, and in the face of the fact taught by practical science that the nuisance is preventable, even with the use of soft coal, by the use of proper appliances and proper management, we have never held such pleas to be valid. Congress has never prohibited the use of soft coal in this District. Such prohibition may be the inevitable result, if obedience is not otherwise rendered to the statute. But thus far it has evidently been the view of Congress that the use of soft coal is not inconsistent with the prevention of the public nuisance created by the emission of dense smoke from chimneys. This being the case, it is not apparent why the appellant should regard his use of soft coal under the authority of Congress as a justification of a public nuisance, which Congress has been careful to prohibit. In other words, it is not the use of soft coal that causes the public nuisance, but the use of it in an improper way or without the proper appliances, and the appellant has not said that he has used this coal in the proper way, or that he is without the proper appliances for the prevention of smoke from it. His true defense is, not that he has used soft coal under the authority of Congress, but that Congress has not furnished to him the proper appliances wherewith to devest such use of its resultant nuisance of smoke. And this defense he has not made. ■ But let us assume that he has made it, and that this is what he means. Is it a good defense ? We think not. The smoke law has now been in force for upwards of six years. So far as the record before us discloses, it does not appear that during that whole period the appellant has at any time made any effort to conform to the requirements of the statute. It will not do for him to say that Congress has not provided him with the proper appliances when he has made no effort to procure such appliances. It cannot be assumed that, in the multitude and magnitude of its public duties, Congress can take the initiative in the determination of the details needed for the conduct of any public office or department of government. The appellant was appointed to his office with the duty imposed upon him to conduct that office according to law,—accord — 39 — ing to all'the laws affecting it,—the smolte law, as well as others; and he is not at liberty to conduct the business of that office in violation of law. The duty was incumbent upon him, as upon all executive officers, to report to Congress the requirements necessary for its management in accordance with the law. It does not appear that he has done so. If it appeared that he had made application for the proper appliances, and that the application had been refused or ignored, perhaps a different question might be presented here. But that question is not presented now, and we cannot assume that Congress will deliberately refuse to executive officers of the government the necessary appliances for giving effect to its own act and its own specific and reiterated requirement. We are of opinion that the judgment of the police court in this matter was right and just, and that it should be affirmed. But, inasmuch 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 session and application cannot immediately be made to it by the appellant to remedy the result of past negligence, the municipal authorities, we think, would do well to exercise discretion in the matter of further prosecutions at this time. Affirmed.