Tynes v. Gogos

• Decision Date: 22 August 1958
• Docket Number: No. 2131.,2131.
• Citation: 144 A.2d 412
• Parties: Leopoldine M. TYNES, Appellant, v. Pandora P. GOGOS, Appellee.
• Court: D.C. Court of Appeals

144 A.2d 412

Leopoldine M. TYNES, Appellant, v. Pandora P. GOGOS, Appellee.

No. 2131.

Municipal Court of Appeals for the District of Columbia.

Argued March 3, 1958.

Decided August 22, 1958.

Rehearing Denied September 5, 1958.

Oliver Ellis Stone, Washington, D. C., for appellant.

Donald J. Caulfield, Washington, D. C., with whom Bond L. Holford, Washington, D. C., was on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The right to maintain a civil action for damages predicated on the so-called "anti-discrimination laws" effective in the District is in issue on this appeal. The matter is before us from an order of the trial judge granting a motion to dismiss appellant's complaint for failure to state a claim upon which relief can be granted.

The complaint filed in this case alleged that appellant, a white woman, accompanied by her husband, a member of the Negro race, entered a restaurant and dance hall owned and operated by appellee in this city. They were admitted into the restaurant, ordered, and were served refreshment. Sometime in the course of the evening appellant and her husband went to the area of the restaurant reserved for dancing and began to dance when, according to the complaint, an employee acting on appellee's instructions informed them that "mixed dancing" was not permitted and ordered them to stop. In addition to these allegations the complaint states that when appellant attempted to protest the order in a peaceful manner, insulting and abusive remarks were made to her in the presence of other patrons. For humiliation, embarrassment, anguish, and anxiety, appellant sought compensatory and punitive damages.

Although the complaint as originally drawn included an allegation of assault, this was deleted by amendment in the trial court prior to the hearing on appellee's motion, and counsel for appellant in oral argument before this court has assured us that assault is not alleged in the action.

Appellant's claim is in main based on the violation of two Acts of the Legislative Assembly passed in 1872¹ and 1873² and an Act of the Corporation of the City of Washington, aproved June 10, 1869, as enlarged and amended in 1870.³ The pertinent portions of these Acts are set forth in the margin.⁴

The validity of these Acts is not in dispute. In District of Columbia v. John R. Thompson Co.,⁵ the Supreme Court upheld the validity of the 1873 Act and left open on remand to the United States Court of Appeals for the District of Columbia the status of the 1872 Act. That court ruled "with respect to restaurants, the 1873 Act repealed that of 1872 * * *."⁶ Two years later this court affirmed a conviction under the 1869 Act as amended. Central Amusement Company v. District of Columbia, D.C.Mun.App. 1956, 121 A.2d 865.

The applicability, however, of these Acts to the facts as pleaded in this case raises some doubts. The Act of 1872 does little more than require that equal service be accorded patrons without regard to race or color, a matter not in issue here. Its unrepealed provisions apply only to hotels, ice-cream saloons, soda fountains, barber shops, and bathing houses, all of which appear to be totally dissimilar from appellee's establishment as described in the complaint. The Act of 1873 speaks in terms of equal treatment and of accommodating any well-behaved and respectable person. The 1870 Act, which broadened the scope of its 1869 predecessor, made it unlawful to refuse to admit or entertain any quiet or orderly person because of race or color. While the latter two Acts would appear to have greater relevancy, neither party on this appeal has specifically argued the construction or applicability of the terms employed in the Acts in relation to the activity prohibited by appellee. Appellant's contention on this is only that the actions of appellee were such as to constitute discrimination on the basis of race or color. We need not resolve this conflict, for assuming without so deciding that the facts of this case are within these Acts, we hold as to the paramount issue raised on this appeal (1) that the Acts involved here are municipal ordinances or police regulations, penal in character, and (2) that they do not give rise to a civil action for damages.

Construing the Organic Act of February 21, 1871, 16 Stat. 419, which created the government of the District of Columbia, the Supreme Court, in the Thompson case characterized the District's early government as a "territorial government." 346 U.S. at page 105, 73 S.Ct. at page 1010.⁷ The grant of legislative power to the District's Legislative Assembly was said by the Court to be substantially identical with the grant of legislative power to the territories. Subject to the right of Congress to revise, alter, and revoke, the lawmaking authority delegated to the Legislative Assembly extended to all rightful subjects of legislation and "was as broad as the police power of a state" so as to include laws prohibiting discrimination on the basis of race. 346 U.S. at page 110, 73 S.Ct. at page 1013. But if the Legislative Assembly, during its brief existence,⁸ was empowered to enact matters of general legislation, it also possessed the power to prescribe local regulations relating purely to municipal affairs.⁹ Thus the Assembly was something of a legislative anomaly possessing dichotomous powers.

Having categorized the authority vested in the Legislative Assembly, the Supreme Court in the Thompson case then classified the Acts of 1872 and 1873:

"It is our view that these anti-discrimination laws governing restaurants in the District are `police regulations' and acts `relating to municipal affairs' * * *."¹⁰

And again at 346 U.S. 113, 73 S.Ct. at page 1014, the Court said:

"* * * Regulation of public eating and drinking establishments in the District has been delegated by Congress to the municipal government from the very beginning. [Citing authorities.] In terms of the history of the District of Columbia there is indeed no subject of legislation more firmly identified with local affairs than the regulation of restaurants."

Similarly, this court in Central Amusement Company v. District of Columbia, D.C.Mun. App., 121 A.2d 865, at page 866, held the Act of 1869 as enacted and amended by the Board of Common Council to be a "regulatory measure in the nature of a police regulation."

Each of the Acts in question was designed to end discriminatory practices in the District through the regulation of restaurants and each therefore prescribed within its framework a penal sanction. Section 3 of the 1872 Act established a fine of $100

and forfeiture of the offender's license for its violation. The Act of 1873 fixed a similar penalty (§ 4) and provided in detail for enforcement by information in the Police Court subject to appeal to the Criminal Court. The 1869 Act as amended and enlarged exacted a fine of $50, one-half of which was to be paid the informer upon recovery. Clearly these Acts are penal in nature; none suggests or envisions a civil remedy.

Numerous authorities are cited by appellant to support the proposition that legislation while penal in form may be both penal and remedial in effect.¹¹ All of these cases are readily distinguishable in that they involve specific state Civil Rights Acts or congressional legislation. The Acts in issue here are not statutes but municipal ordinances.

The question then presented is whether a civil action for damages may be predicated on an ordinance or regulation. In 6 McQuillan, The Law of Municipal Corporations, § 22.01 (3d ed. 1949), it is stated:

"The well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves. * * * As applied to causes of action in tort the rule is also applicable not only theoretically but in full and practical effect; an ordinance cannot directly provide that one person owes a civil duty to another, the breach of which to the damage of the other gives him a cause of action. * * *"

Although we have found no case factually in point¹² and have been referred to none, this principle has found wide acceptance in cases of diverse factual circumstances. See Bain v. Ft. Smith Light & Traction Co., 1915, 116 Ark. 125, 172 S.W. 843, L.R. A.1915D, 1021; City of Goshen v. Crary, 1877, 58 Ind. 268; City of Joplin v. Wheeler, 1913, 173 Mo.App. 590, 158 S.W. 924; Becker v. Schutte, 1900, 85 Mo.App. 57; Vandyke v. City of Cincinnati, 1857, 1 Disn. 532, 12 Ohio Dec. 778; Philadelphia & Reading R. Co. v. Ervin, 1879, 89 Pa. 71, 33 Am.Rep. 726; Kessler v. Mandel, 1945, 156 Pa.Super. 505, 40 A.2d 926; Heeney v. Sprague, 1877, 11 R.I. 456, 23 Am.Rep. 502; Stark v. First Nat. Stores, 1952, 117 Vt. 231, 88 A.2d 831; Shea v. Pilette, 1937, 108 Vt. 446, 189 A. 154, 109 A.L.R. 933. We think it applicable here. The Acts on which appellant relies are, in the words of Justice Douglas speaking for the Court in Thompson, "regulatory laws prescribing in terms of civil rights the duties of restaurant owners to members of the public." 346 U.S. at page 116, 73 S.Ct. at page 1016. The duties set forth in these Acts embrace not only equal service and accommodations but the posting of prices. For the breach of these duties criminal penalties are exclusively provided, and the rights conferred on the public through these regulatory measures are enforceable therefore solely by the municipality through its criminal processes. The annexation of civil liability would not only contravene the principle we adopt here but would supply an intent and a remedy not found in the Acts.

Apart from these Acts appellant contends the rights asserted here existed at common law. We know of no settled authority in the District which supports this view¹³ and are of the belief that the duties imposed on restaurant owners by these Acts...