District of Columbia v. John R. Thompson Co.

Citation81 A.2d 249
Decision Date24 May 1951
Docket NumberNo. 967.,967.
PartiesDISTRICT OF COLUMBIA v. JOHN R. THOMPSON CO., Inc.
CourtCourt of Appeals of Columbia District

Chester H. Gray, Principal Asst. Corporation Counsel, Washington, D. C., with whom Vernon E. West, Corporation Counsel, and Edward A. Beard, Asst. Corporation Counsel, Washington, D. C., were on the brief, for appellant.

Ringgold Hart, Washington, D. C., with whom John J. Wilson and Jo V. Morgan, Jr., Washington, D. C., were on the brief, for appellee.

Phineas Indritz, Washington, D. C., for Greater Washington Area Council of American Veterans Committee, Inc., amicus curiae.

Harry C. Lamberton, James A. Cobb and Joseph Forer, all of Washington, D. C., for District of Columbia Chapter, National Lawyers Guild, amicius curiæ.

Sanford H. Bolz, Stanley B. Frosh, William C. Koplovitz and Phineas Indritz, all of Washington, D. C., for American Council on Human Rights et al, amicius curiæ

Foster Wood, Washington, D. C., for Washington Chapter, Unitarian Fellowship for Social Justice, and The Washington Friends Joint Social Order Committee, amicus curiæ.

Leroy H. McKinney, Washington, D. C., for Washington Bar Ass'n, Inc., amicus curiæ.

David Rein, Washington, D. C., for Coordinating Committee for Enforcement of D. C. Anti-Discrimination Laws, amicus curiæ.

Margaret A. Haywood, Washington, D. C., on behalf of a group of twelve citizens of District of Columbia, amicus curiæ.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

The District of Columbia appeals from an order of the Municipal Court quashing an information which charged that defendant John R. Thompson Company, Inc., a restaurant operator, had in violation of law refused to serve prospective patrons because they were of the Negro race.

The information stated the charge in four separate counts and the matter was presented to the trial court on an agreed statement of facts from which it appears that three persons of the Negro race, who concededly were "well-behaved and respectable persons," entered defendant's restaurant and asked to be served, but were told by defendant's local manager "that it was not the policy of the restaurant to serve members of the Negro race." Defendant then and there refused to sell or otherwise accommodate the three aforesaid persons, or any of them, solely because of race and color. This the government charged was in violation of two Acts of the Legislative Assembly for the District of Columbia passed respectively in 1872 and 1873.

In a written memorandum,1 the trial judge ruled that the Acts of the Assembly were valid and "in their objective light were not unreasonable," but he also ruled that the Acts had been repealed by implication and proceeded to dismiss or "quash" the information. Thus the case comes here for review on appeal by the District of Columbia. In addition to the briefs of appellant and appellee, there have been filed with our permission several briefs of amiciæ curia as indicated in the caption.

The government assigns as error the ruling that the Acts of the Legislative Assembly had been repealed by implication. Appellee contends not only that the Acts are no longer in force, but that they were void ab initio.

The Legislative Background.

By Act of the Congress of the United States passed on February 21, 1871, a government was set up for the District of Columbia. 16 Stat. 419. Section 5 of the Act vested legislative power in a Legislative Assembly, specifying certain conditions and reserving to the Federal Congress certain enumerated legislative powers and also supervisory control over the Legislative Assembly. In one section (18) it was separately provided "That the legislative power of the District shall extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act, subject, nevertheless, to all the restrictions and limitations imposed upon States by the tenth section of the first article of the `Constitution of the United States; but all acts of the legislative assembly shall at all times be subject to repeal or modification by the Congress of the United States, and nothing herein shall be construed to deprive Congress of the power of legislation over said District in as ample manner as if this law had not been enacted."

Acting under the Congressional authority just recited, the Legislative Assembly on June 20, 1872, Comp.St.1894, c. 16, § 148 et seq., enacted the following: "And be it further enacted, That any restaurant keeper or proprietor, any hotel keeper or proprietor, proprietors or keepers of ice-cream saloons or places where soda-water is kept for sale, or keepers of barber shops and bathing houses, refusing to sell or wait upon any respectable well-behaved person, without regard to race, color, or previous condition of servitude, or any restaurant, hotel, ice-cream saloon or soda fountain, barber shop or bathing-house keepers, or proprietors, who refuse under any pretext to serve any well-behaved, respectable person, in the same room, and at the same prices as other well-behaved and respectable persons are served, shall be deemed guilty of a misdemeanor, and upon conviction in a court having jurisdiction, shall be fined one hundred dollars, and shall forfeit his or her license as keeper or owner of a restaurant, hotel, ice-cream saloon, or soda fountain, as the case may be, and it shall not be lawful for the [Register] or any officer of the District of Columbia to issue a license to any person or persons, or to their agent or agents, who shall have forfeited their license under the provisions of this act, until a period of one year shall have elapsed after such forfeiture." Ch. L.I, Sec. 3.

A year later, on June 26, 1873, Comp.St. 1894, c. 16, § 151 et seq., the succeeding Assembly enacted much lengthier sections dealing with the conduct of restaurants, eating houses, and similar establishments, and again made it a violation of law to refuse to serve "any well-behaved and respectable person or persons who may desire the same" or to discriminate against any such person in any one of several ways.

The Validity of the Acts.

We must first consider the contention of defendant restaurant keeper that the Acts were void. The first contention is that these were not mere regulations but Acts of general legislation and therefore beyond the power of the Assembly to enact. The trial court ruled otherwise, and I think correctly. I think that Congress clearly had the power under the Federal Constitution to delegate to the local Assembly the right to promulgate regulations of this type. I also think that a municipality has the right in the exercise of its general police power to regulate the conduct of public eating places for the protection of the public health, safety and order. Further, I think that in passing the Acts here in question the Assembly was not creating new rights, as the defendant contends, but was merely, by local regulation, defining and assuring the observance of existing rights of citizens within the local jurisdiction. Decisions of the Supreme Court and of the local appellate courts support this view. Stoutenburgh v. Hennick, 129 U.S. 141, 9 S.Ct. 256, 257, 32 L.Ed. 637, relied on by both parties, invalidated an Act of the Assembly on the premise that by imposing licensing restrictions on commercial agents doing business outside the District, it constituted a regulation of interstate commerce which could not properly be interfered with by local government. But the court recognized that "local affairs shall be managed by local authorities," and that though the power to make some laws cannot be delegated, "the creation of municipalities exercising local self-government has never been held to trench upon that rule."

The Supreme Court of the District of Columbia2 in Roach v. Van Riswick, MacArthur & Mackey, 11 D.C. 171, held invalid an Act of the Assembly which made court judgments operate as liens on equitable interests in land, the court ruling that this was general legislation and hence in the sole province of Congress. "We cannot doubt, however," said the court, "that Congress intended to confer on the District government the fullest legislative power with certain express restrictions. Their power is declared to extend to all rightful subjects of legislation consistent with the Constitution and the provisions of the organic act, and subject to the restrictions and limitations imposed upon the States by the 10th section of the first article of the Constitution." The court also recognized that "the regulation of local concerns in a town, is considered as properly belonging to its inhabitants * * * and it is hardly looked upon as a delegation of legislative authority."

A few months later the same court in Cooper v. The District of Columbia, MacArthur & Mackey, 11 D.C. 250, 251, referring to the Roach case, said, "All that was decided there was that Congress had no right to bestow upon the legislative assembly of the District any powers which were not necessary for it as a municipality; but the decision expressly, in more than one place, declares that whatever was granted by Congress to the legislative assembly of the District, in respect to matters properly pertaining to municipal government, was a valid grant."

Another case relied on by appellee is Smith v. Olcott, 19 App.D.C. 61. There the Court of Appeals of the District of Columbia, created in 1893,3 held invalid a section of a licensing statute prescribing maximum charges which could be made by auctioneers on the ground that it set forth "one absolute, invariable charge for all sales of real estate." The decision added nothing to what had already been said in the Stoutenburgh case.

The most recent case applicable to the subject matter is Johnson v. District of Columbia, 30 App.D.C. 520, decided in 1908, in which ...

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4 cases
  • John R. Thompson Co. v. District of Columbia
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 22 January 1953
    ...repealed by the Organic Act of June 11, 1878, 20 Stat. 102. The District took an appeal from that order to the Municipal Court of Appeals, 81 A.2d 249. That court, as to the first count of the information, affirmed the order of the Municipal Court, Judge Hood being of the view that both the......
  • District of Columbia v. John Thompson Co
    • United States
    • U.S. Supreme Court
    • 8 June 1953
    ...affirmed the Municipal Court insofar as it dismissed the count based on the 1872 Act and reversed the Municipal Court on the other counts. 81 A.2d 249. On cross-appeal, the Court of Appeals held that the 1872 and 1873 Acts were unenforceable and that the entire information should be dismiss......
  • Tynes v. Gogos
    • United States
    • D.C. Court of Appeals
    • 22 August 1958
    ...of such, fine shall be paid, * * * to the party who may have been the informer in any such case." (Emphasis supplied.) 5. D.C.Mun.App.1951, 81 A.2d 249, reversed in part, 1953, 92 U.S.App.D.C. 34, 203 F.2d 579, reversed, 1953, 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480. For discussions of t......
  • John R. Thompson Co. v. District of Columbia, 11039
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 15 February 1954
    ...in the consideration or decision of these cases. 1 John R. Thompson Co. v. District of Columbia, 92 U.S.App.D.C. 34, 203 F.2d 579. 2 81 A.2d 249, 262. ...

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