John R. Thompson Co. v. District of Columbia

• Decision Date: 22 January 1953
• Docket Number: No. 11039,11044.,11039
• Citation: 203 F.2d 579
• Parties: JOHN R. THOMPSON CO., Inc. v. DISTRICT OF COLUMBIA. DISTRICT OF COLUMBIA v. JOHN R. THOMPSON CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

203 F.2d 579 (1953)

JOHN R. THOMPSON CO., Inc. v. DISTRICT OF COLUMBIA.

DISTRICT OF COLUMBIA v. JOHN R. THOMPSON CO., Inc.

Nos. 11039, 11044.

United States Court of Appeals District of Columbia Circuit.

Decided January 22, 1953.

Writ of Certiorari Granted April 6, 1953.

Ringgold Hart, Washington, D. C., John J. Wilson and Jo V. Morgan, Jr., Washington, D. C., on the brief), for John R. Thompson Co., Inc., appellant in No. 11039 and appellee in No. 11044.

Chester H. Gray, Principal Assistant Corporation Counsel for the District of Columbia, Vernon E. West, Corporation Counsel, Edward A. Beard, Assistant Corporation Counsel, and Clark F. King, Assistant Corporation Counsel, on the brief, for the District of Columbia, appellee in No. 11039 and appellant in No. 11044.

Phineas Indritz and S. Walter Shine, Washington, D. C., by special leave of Court, for American Civil Liberties Union, Inc., et al., amici curiae.

Philip B. Perlman, Solicitor General, Washington, D. C., filed a brief on behalf of the United States of America as amicus curiae, urging the validity of the Equal Service Acts of 1872 and 1873.

James A. Cobb, Harry C. Lamberton and Joseph Forer, Washington, D. C., filed a brief on behalf of the District of Columbia Chapter, National Lawyers Guild, as amicus curiae, urging the validity of the Equal Service Acts of 1872 and 1873.

Margaret A. Haywood, Washington, D. C., filed a brief on behalf of A. Powell Davies, et al., as amici curiae, urging the validity of the Equal Service Acts of 1872 and 1873.

Phineas Indritz and George Bunn, Washington, D. C., filed a brief on behalf of the American Veterans Committee, Inc., as amicus curiae, urging the validity of the Equal Service Acts of 1872 and 1873.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, PROCTOR, BAZELON, FAHY and WASHINGTON, Circuit Judges.

Writ of Certiorari Granted April 6, 1953. See 73 S.Ct. 784.

Chief Judge STEPHENS announced the judgment of the court and an opinion in which Circuit Judge CLARK, Circuit Judge MILLER and Circuit Judge PROCTOR concurred, and in the result of which Circuit Judge PRETTYMAN concurred.

By the Act of February 21, 1871, 16 Stat. 419, c. LXII, the Congress created a Legislative Assembly for the District of Columbia, consisting of a Council and a House of Delegates, the council to be appointed by the President, with the advice and consent of the Senate, the House of Delegates to be elected by the male citizens of the United States resident in the District.¹ The Assembly existed only until June 20, 1874, when, by the Organic Act of that date, 18 Stat. 116, it was disestablished. By an Act of June 20, 1872, D.C.Laws 1871-72, pt. IV, c. LI, ? 3, Comp.St.1894, c. 16, ? 150, the Assembly made it a misdemeanor for any restaurant keeper to refuse to serve any respectable well-behaved person, without regard to race, color or previous condition of servitude. The enactment provided that upon conviction of the offense defined a restaurant keeper should be fined one hundred dollars and should forfeit his license for one year. The text of the enactment, so far as here pertinent, is set forth in the margin.² A further enactment with similar objective and sanction was passed by the Assembly on June 26, 1873, D.C.Laws 1873, pt. II, c. XLVI, ?? 3 and 4, Comp.St.1894, c. 16, ?? 153, 154. The text of that enactment, so far as here pertinent, is also set forth in the margin.³

On August 1, 1950, the Corporation Counsel for the District of Columbia filed in the Municipal Court for the District an information charging the John R. Thompson Co., Inc., as a restaurant keeper in the District, with violation of the enactments of 1872 and 1873 ?€” by refusal of service, solely because they were members of the negro race, to named well-behaved and respectable persons. The information was in four counts, the first charging violation of the enactment of 1872, the second, third and fourth with violation of the enactment of 1873. The Municipal Court, acting sua sponte, entered an order quashing the information upon the ground that both enactments had been 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 1872 and 1873 enactments were invalid as beyond the power of the Assembly, Judge Clagett thinking that the 1872 enactment was repealed by the enactment of 1873. As to the second, third and fourth counts of the information, the Municipal Court of Appeals reversed the order of the Municipal Court, Judge Clagett being of opinion that the 1873 enactment was valid when enacted and that it had never been repealed, Chief Judge Cayton being of the view that both the 1872 and 1873 enactments were valid when enacted and that neither of them had been repealed. The Thompson Company petitioned this court for the allowance of an appeal from the judgment of the Municipal Court of Appeals in so far as it reversed the order of the Municipal Court quashing the information as to the second, third and fourth counts. The District, on its part, petitioned for the allowance of a cross-appeal from the judgment of the Municipal Court of Appeals in so far as it affirmed the order of the Municipal Court in quashing the information as to the first count. We granted both petitions, and ordered the appeal and the cross-appeal heard in banc.

As the appeals stand before this court on the record and briefs they present two principal questions: The first, were the enactments of the Legislative Assembly of 1872 and 1873 on which the information against the Thompson Company was based within the power of the Assembly; the second, were those enactments repealed.

I.

Were the enactments of 1872 and 1873 within the power of the Legislative Assembly? We think the answer to that question lies in certain constitutional provisions and principles and in certain rulings and reasoning of the Supreme Court and of this court and of its predecessor, the Supreme Court of the District of Columbia in General Term, which we shall briefly review.

The Constitution in Article I, Section 8, Clause 17, endows Congress with power "To exercise exclusive Legislation in all Cases whatsoever, over such District. . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . .." The Act of February 21, 1871, creating the Legislative Assembly for the District of Columbia, provided in Section 1:

That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.

In Section 5 the Act provided, inter alia:

That legislative power and authority in said District shall be vested in a legislative assembly as hereinafter provided.

In Section 18 the Act 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.

In December 1888, there was submitted to the Supreme Court of the United States a case which for the first time in that Court questioned the power of the Legislative Assembly, to wit, Stoutenburgh v. Hennick, 129 U.S. 141, 9 S.Ct. 256, 32 L.Ed. 637, decided in January 1889. The Assembly, by an Act of August 23, 1871, amended June 20, 1872, forbade "commercial agents" ?€” persons whose business it is, as agent, to offer for sale goods, wares or merchandise solely by sample, catalogue or otherwise ?€” to engage in that business in the District of Columbia without having first obtained a license to do so. An agent of a Baltimore, Maryland, merchandise firm was convicted in the District of a violation of that enactment and was sentenced to a fine and, in default of payment of the same, to the workhouse. In a habeas corpus proceeding he attacked the validity of the enactment upon which the conviction rested upon the ground that, as applied to persons soliciting in the District the sale of goods on behalf of those doing business outside of the District, it was a regulation of interstate commerce and hence within the exclusive power of Congress. The decision of the Supreme Court in the case is important here because of a distinction made and the reason given therefor. The Court, speaking through Chief Justice Fuller, said:

It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to the...