On March 22, 1906, a motion for a rehearing was made on behalf of the appellees by Mr. Thomas and Mr. Stephens, who filed a brief in support of the motion.
Mr. Richardson and Mr. Stewart filed a brief opposing the motion.
On April 3, 1906, the motion for rehearing was denied.
Per Curiam :The disastrous results of our decision in this case upon schemes for the improvement of streets, which the representatives of the District of Columbia seem to apprehend, have caused us to make a careful re-examination of the decision in the light of the printed argument submitted with the motion for rehearing.
No specific instances of the narrowing of streets during the thirty-five years that section 77, D. C. Rev. Stat., has been in force have been called to our attention, so as to present the question of the effect of a further construction of that section through frequent and continuous operation of the power on the one hand and acquiescence on the other. If, in occasional instances, the power may have been exercised without challenge, we regard the meaning of the section as too plain for the adoption of such a construction.
No additional legislation has been called to our attention that tends to increase or enlarge the power given by the section heretofore passed upon, nor has any decision been cited which con*188flicts in. any respect -with the doctrine heretofore enounced. Decisions of the Supreme Court of the United States and of this court, referring to the section, have relation to questions arising in respect of grading streets, encroachments thereon and upon parking, and upon the liability of the District of Columbia for neglect of duty in keeping streets in repair. Not one involved the power herein claimed to widen or narrow a street. In deciding that the section relied on did not confer such power, nothing was said or intended to be intimated as regards the powers of the commissioners, in the reasonable exercise of their discretion, to improve or repair the streets by reducing or raising their grade. Where grading is necessary in order to improve and further a convenient use of the streets, it may be included in the power to repair, but as to that we express no opinion, for the question is not even incidentally involved. Certainly there is nothing in the cases decided that goes to the denial of such power. All that we intended to hold, and that we think is carefully stated in the opinion, is that the commissioners have no express or implied power to narrow an established street. If such power is desirable, application for its extension will have to be made to Congress. The motion is denied.
The appellees, the Commissioners of the District of Columbia, applied to the Supreme Court of the United States for the writ of certiorari. Their petition was denied by that court June 6, 1906.