District of Columbia v. John R. Thompson Company Brief Amicus Curiae

    Intô ufrmeflJourtoftteWmM̂ tales
October T erm, 1952

D istrict op Colombia, petitioner

v.
J ohn R. T hompson Company, I nc.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE DISTRICT 
OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
IN SUPPORT OF THE PETITION FOR A W RIT OF 
CERTIORARI



I N D E X

CITATIONS
Cases: Pa£»

Atchison, T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55--------- 18
Binns v. United States, 194 U. S. 486-------------------------------  18, 21
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28---------------- 19
Cape Girardeau County Court v. Hill, 118 U. S. 68------------  30
Carr v. Corning, 182 F. 2d 14____________________________ 29
Christianson v. King County, 239 U. S. 356----------------------  18
City of Phoenix v. Michael, 61 Ariz. 238------------------------29
Clinton v. Englebrecht, 13 Wall. 434---------------------------------  20
Cooper v. District of Columbia, MacArthur & Mackey 250_ 30
Cope v. Cope, 137 U. S. 682______________________________ 17, 18
District of Columbia v. Hutton, 143 U. S. 18---------------------- 16
Duluth v. Cerveny, 218 Minn. 511-------------------------------------  22
Eckloff v. District of Columbia, 135 U. S. 240--------------------  15
Grant v. Cooke, 7 D. C. 165_________________ _____________ 16
Henderson v. United States, 339 U. S. 816------------------------- 31
Home Tel. & Tel. Co. v. Los Angeles, 155 Fed. 554-----------  29
Hornbuckle v. Toombs, 18 Wall. 648---------------------------------  17, 18
Hunter v. Pittsburgh. 207 U. S. 161----------------------------------  22
Hyde v. United States, 225 U. S. 347--------------------------------  26
Johnson v. District of Columbia, 30 App. D. C. 520-----------  29
Kelly v. Washington, 302 U. S. 1-------------------------------------- 30
McLaurin v. Oklahoma State Regents, 339 U. S. 637----------  31
Maynard v. hill, 125 U. S. 190---------------------------------------- 17, 18
Metropolitan Railroad v. District of Columbia, 132 U. S, 1__ 24, 28
Milwaukee v. Raulf, 164 Wis. 172------------------------------------  22
Miners’ Bank v. Iowa, 12 How. 1------------------------------------  18
People v. King, 110 N. Y. 418--------------------------------  19
People v. Sell, 310 Mich. 305______________________  30
People of Porto Rico v. American R. R. Co., 254 Fed. 369_ 19
People of Puerto Rico v. Suazo, 63 Puerto Rico Reports 869_ 19
Porter v. Santa Barbara, 140 Cal. App. 130, 35 P. 2d 207__ 29
Puerto Rico v. Shell Co., 302 U. S. 253___________________  18, 19
Railway Mail Association v. Corsi, 326 U. S. 88 ---------------  19
Rhone v. Loomis, 74 Minn. 200__________________________  19
Richards v. Bellingham Bay Land Co., 54 Fed. 209----------  19
Roach v. Van Riswick, MacArthur & Mackey 171------------  14
Roth v. District of Columbia, 16 App. D. C. 323----------------  16
Schultz v. State, 112 Md. 211____________________________  30
Shepherd v. McElwee, 304 Ky. 695----------------------------------- 29

245592— 53------ 1
(i)



II

Oases—Continued Page
Simms v. Simms, 175 U. S. 162__________________________  18
Stoutenburgh v. Hennick, 129 U. S. 141___________________ 26
Sweatt v. Painter, 339 U. S. 629__________________________ 31
United States v. May, 2 MacArthur 512__________________  25
Western Turf Association v. Greenberg, 204 U. S. 359______ 19

Constitution:
Article I, Section 8_________________________________3, 13, 14, 15
Article I, Section 10_____________________________________  16
Article IV, Section 3_______ _________________________ :___14, 15
Fifth Amendment_______________________________________  19
Thirteenth Amendment_________________________   4
Fourteenth Amendment_________________________________  4
Fifteenth Amendment___________________________________  4

Statutes:
Act of July 16, 1790, 1 Stat. 130_____________________  15, 23, 24
Act of February 27, 1801, 2 Stat. 103___________________  24
Act of May 3, 1802, 2 Stat. 195_________________________  24
Act of February 24, 1804, 2 Stat. 254____________________  24
Act of March 3, 1805, 2 Stat. 332________ ,_______________ 24
Act of May 4, 1812, 2 Stat. 721_________________________  24
Act of July 1, 1812, 2 Stat. 771___    25
Act of May 15, 1820, 3 Stat. 583________________________  25
Act of July 9, 1846, 9 Stat. 35___________________________  25
Act of May 17, 1848, 9 Stat. 223________________________  25
Act of August 6, 1861, 12 Stat. 320______________________  25
Act of March 3, 1863, 12 Stat. 799______________________  25
Act of June 11, 1878, 20 Stat. 102_______________________  28
District of Columbia Code of 1901, 31 Stat. 1189________  7

Section 1636________________________________________  28, 29
Section 1640________________________________________  28

Organic Act of February 21, 1871, 16 Stat. 419___ 2, 3, 6, 15, 16
Section 3___________________________________________  3
Section 5___________________________________________  3
Section 17__________________________________________  23
Section 18_________________________________________  3, 8, 16

Organic Act of June 11, 1878, 20 Stat. 102_______________ 3
Revised Statutes (1873-1874), Section 1851_______________  17
Temporary Organic Act of June 20, 1874, 18 Stat. 116___  3
Territorial Organic Acts:

Louisiana (March 26, 1804, 2 Stat. 283, 284)________  16
Wisconsin (April 20, 1836, 5 Stat. 10, 12)_____________ 16
Iowa (June 12, 1838, 5 Stat. 235, 237)________________ 16
Oregon (August 14, 1848, 9 Stat. 323, 325)__________  16
Minnesota (March 3, 1849, 9 Stat. 403, 405)__________  16
New Mexico (September 9, 1850, 9 Stat. 446, 449)___ 16
Utah (September 9, 1850, 9 Stat. 453, 454)__________  16



I l l

Statutes—Continued
Territorial Organic Acts— Continued Page

Washington (March 2, 1853, 10 Stat. 172, 175)______  16
Nebraska and Kansas (May 30, 1854, 10 Stat. 277,

279, 285)_________________________________________  16-17
Colorado (February 28, 1861, 12 Stat. 172, 174)_____  17
Dakota (March 2, 1861, 12 Stat. 239, 241)__________  17
Arizona (February 24, 1863, 12 Stat. 664, 665)_______ 17
Idaho (March 3, 1863, 12 Stat. 808, 810)____________  17
Montana (May 26, 1864, 13 Stat. 85, 88)____________ 17
Wyoming (July 25, 1868, 15 Stat. 178, 180)_________  17

48 U. S. C., Secs. 77 and 562____________________________  17
Act of the Legislative Assembly of the District of Columbia

of 1872----------------------------------------------------------  2, 3, 4, 7, 29, 30
Act of the Legislative Assembly of the District of Columbia

of 1873 ----------------------------------------------------------  2 ,3 ,4 ,7 ,29 ,30
Alaska Compiled Laws, Section 20-1-3 (1949)___________  19
Puerto Rico Laws, 1943, Act No. 131, pp. 404-406_______  19
Virgin Islands, Act of September 12, 1850, Bill No. 1, 15th

Legislative Assembly of Virgin Islands, 1st Session_____ 19
Miscellaneous:

Briefs for the United States in Nos. 8, 101, 191, 413 and 448,
Supreme Court of the United States, October Term 1952_ 31

Cong. Globe, 41st Cong., 3d Sess. 642-644, 686-687, 1363- 15
H. R. 1395, 83d Cong___________________________________ 10
H. Rep. No. 1017, 56th Cong., 1st Sess__________________  29
McQuillan, Municipal Corporations (3d ed. 1949, Section

23.03)________________________________________________  23
President Eisenhower’s Address to Congress, February 2,

1953, H. Doc. No. 75, 83d Cong., 1st Sess., p. 13____9,12, 13
S. 999, 83d Cong_______________________________________  10
S. 1527, 81st Cong., 1st Sess. 95 Cong. Rec. 7010-7018__  10
S. 1976, 82d Cong., 2d Sess. 98 Cong. Rec. 391__________ 10,11
S. Rep. No. 1011, 79th Cong., 2d Sess., p. 24____________  11
S. Rep. No. 630, 82d Cong., 1st Sess., p. 13______________  11
The Federalist, No. 43__________________________________  14



Jnlkj&tpmt Of mtrt of ik ItitiM states
October Term, 1952

No. 617
D istrict oe Columbia, petitioner

v.
J ohn R. T hompson Company, I nc.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE DISTRICT 
OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
IN SUPPORT OF THE PETITION FOR A W RIT OF 
CERTIORARI

The United States respectfully urges the Court 
to grant the petition for a writ o f certiorari 
which has been filed by the District o f Columbia.

The Court of Appeals, sitting in banc, held in 
this case that two anti-discrimination statutes en­
acted by the Legislative Assembly of the District 
of Columbia in 1872 and 1873, during a brief 
period in which the residents o f the District en­
joyed a form o f local self-government, are not 
enforceable. The importance o f the case and of 
the constitutional and statutory questions decided

(i)



2

by the Court o f Appeals extends, however, far 
beyond the holding as to the nonenforceability of 
the Acts of 1872 and 1873. Although the major­
ity judges did not join in a single opinion for the 
court, the opinions of Chief Judge Stephens (on 
behalf o f Judges Clark, Miller, Proctor, and him­
self) and Judge Prettyman (with whom Judge 
Miller also concurred) are in fundamental agree­
ment on major issues in the case. Briefly, these 
issues concern (a) the scope of the constitutional 
power o f Congress in relation to the District of 
Columbia- (b) the extent to which Congress can 
constitutionally establish a local government in 
the District of Columbia and delegate to it 
authority to enact local laws; (c) the scope of the 
legislative authority delegated by Congress to the 
Legislative Assembly o f the District o f Columbia 
in the Organic Act of 1871 (16 Stat. 419) ; and 
(d) the validity and present enforceability o f the 
anti-discrimination statutes enacted by the Legis­
lative Assembly.

These questions of constitutional law and 
statutory construction are obviously not o f mere 
local concern. On the contrary, it is submitted, 
the issues raised by the decision of the Court of 
Appeals are of such large national importance as 
to warrant review by this Court.



3

I

In 1871 Congress, acting under the power 
granted it by the Constitution to “ exercise ex­
clusive Legislation”  over the District of Columbia 
(Article I, Section 8), established a territorial 
form of government in the District. The Organic 
Act of February 21, 1871, vested “ legislative 
power and authority”  in a Legislative Assembly, 
consisting of a Council and a House of Delegates. 
(Section 5 .)1 The Act provided that “ the legisla­
tive power of the District shall extend to all 
rightful subjects of legislation within said District, 
consistent with the Constitution o f the United 
States and the provisions of this act * * 
(Section 18; italics supplied.) The executive 
authority was vested in a Governor, appointed by 
the President with the advice and consent of the 
Senate. (Section 3 .)2

In 1872 and 1873 the Legislative Assembly of 
the District o f Columbia enacted two statutes 
which made it a criminal offense for owners of 
restaurants and certain other places of public

1 The Act also provided that the members of the Coun­
cil were to be appointed by the President with the advice and 
consent of the Senate, and that the members of the House 
of Delegates were to be elected by male citizens of the United 
States residing in the District.

2 This form of government was short-lived, ending with 
enactment of the Temporary Organic Act of June 20, 1874, 
18 Stat. 116, which substituted a temporary government of 
three Commissioners appointed by the President. The Com­
missioner form of government was placed on a permanent 
basis by the Organic Act of June 11, 1878, 20 Stat. 102.



4

accommodation (hotels, bathhouses, barber shops, 
and bars) to refuse service to any “ well-behaved, 
respectable”  person because o f his race or color.3 
These statutes supplemented and gave concrete 
application to the Thirteenth, Fourteenth, and 
Fifteenth Amendments, adopted but a few years 
earlier, which were designed to assure the newly 
freed slaves that they stood free a,nd equal before 
the law and would not be discriminated against 
on account of race, color, or previous condition o f 
servitude.

For more than three-quarters of a century, 
however, the Acts o f 1872 and 1873 lay dormant. 
Prior to this prosecution, authorized by the Dis­
trict Commissioners in 1950, no attempt was 
made after 1874 to enforce the Acts, even though 
violations were, and continue to be, open and fre­
quent. This case was brought in order to settle 
the questions (1) whether the Acts of 1872 and 
1873 were valid when enanted, and (2) i f  so, 
whether they are still in full force and effect.

I I

The judgment of the Court o f Appeals, hold­
ing that the Acts of 1872 and 1873 are unenforce­
able, was concurred in by five judges constituting

3 Violation was made punishable as a misdemeanor by a 
$100 line and forfeiture of license for one year.



5

a majority of the full court.4 The grounds for 
this holding are set forth in the separate opinions 
of Chief Judge Stephens (R. 60-89) and Judge 
Prettvman (R. 89-100). Except in one relatively 
minor respect (see footnote 7, infra), Judge 
Prettyman’s views on the basic issues in the case 
coincide with those expressed by Chief Judge 
Stephens. Both opinions agree on the following 
propositions:

(1) Congress lacks power under the Constitu­
tion to delegate to a local government in the Dis­
trict of Columbia authority to enact ‘ ‘ general 
legislation” ; only the authority to enact “ regula­
tory municipal ordinances”  can constitutionally 
be delegated.5

4 Judge Fahy, with whom Judges Edgerton, Bazelon, and 
Washington concurred, dissented (R. 100-120). The dis­
senting judges were of the view that the Acts of 1872 and 
1873 were valid when enacted and have not been repealed.
. 5 See opinion of Chief Judge Stephens at R. 79, 82.
The opinion of Judge Prettyman is equally explicit in 

expressing the view that Congress can delegate only the 
authority to enact “municipal regulations” and not “general 
legislation” :

* * * There are two possible views. Either they [the 
1872 and 1873 Acts] were general legislation, e. g ., relat­
ing to civil rights, use of property, validity of contracts, 
or similar subjects; or they were municipal ordinances 
regulatory of licensed businesses. * * *

The judges who join Chief Judge Stephens take the 
former view. There are reasons, which he describes, 
which support that view. From that premise I  think 
the next steps in his opinion follow inevitably. I f  the 
enactments constituted legislation they were invalid 
when enacted by the Legislative Assembly, being beyond

245592— 53-------2



6

(2) Although Congress in the Organic Act of 
1871 empowered the Legislative Assembly of the 
District of Columbia to deal with “ all rightful 
subjects of legislation within said District,”  this 
delegation of legislative power could not, and did 
not, include authority to enact local anti-discrim­
ination laws; such laws come within the pro­
scribed category of “ general legislation”  even 
though applicable only within the District of 
Columbia.6

the power permitted a municipal body in the District of 
Columbia by the Constitution * * *.

*
* * * They [the dissenting judges] say, first, that the 

Legislative Assembly was a legislative body. But, of 
course, it could not be a true legislative body. Under the 
Constitution the Congress is, and can be, the only legisla­
tive body for the District of Columbia. The Assembly 
was legislative only in the sense that the word applies to 
the adoption of municipal ordinances, and in that sense 
alone.

^ % *

* * * I f  they [the 1872 and 1873 Acts] were general 
legislation they were void from the beginning * * *.

(R. 89,97, 99; italics supplied.)
6 The line between “ general legislation”  and “regulatory 

municipal ordinances” appears to be somewhat blurred- 
Chief Judge Stephens admitted “that, for lack of a precise 
criterion, the determination of what powers are strictly 
‘municipal’ and may therefore rightly be conferred upon 
local corporations, and what powers are properly ‘legisla­
tive’ and cannot therefore be delegated, is not always with­
out difficulty.” (R. 79.) He thought it clear, however, 
that the Acts of 1872 and 1873 were “general legislation” 
because they limited the freedom of the owner o f a restau­
rant “in the use of his property, in the exercise of his power



7

(3) To the extent that the Acts of 1872 and 
1873 constitute “ general legislation,” they were 
not only invalid when enacted but for the same 
reason were also repealed by the District of 
Columbia Code of 1901 (31 Stat. 1189), since the 
Code repealed acts of the Legislative Assembly 
which wrere “ general” in nature and these Acts 
were not saved from repeal by any exception 
contained in the Code.7

to contract, and in the carrying on of a lawful calling” 
(R. 79) and were “ in the nature of civil rights legislation” 
(R. 81).

Judge Prettyman agreed that acts “relating to civil rights” 
come within the prohibited class of “ general legislation.” 
He cited, as examples of “ general legislation,” those “relating 
to civil rights, use of property, validity of contracts, or simi­
lar subjects.” (R. 89.)

7 The holding that the Acts of 1872 and 1873 were “general 
legislation” and hence invalid when enacted was thus also 
conclusive of the question of repeal under the 1901 Code, and 
the court’s conclusion on the latter issue falls if its conclusion 
on the former is held erroneous. Chief Judge Stephens 
stated that the Acts of 1872 and 1873 were “o f the character 
of general legislation, the power to enact which the Congress 
could not constitutionally delegate to the Assembly,” and 
that “ in the Act of February 21, 1871, creating the District 
government and the Legislative Assembly, the Congress did 
not attempt to endow the Assembly with power to enact such 
measures * * (R. 82.) His opinion also stated (R. 85)
that the finding that the Acts of 1872 and 1873 were “general 
legislation” required the further conclusion that they were 
repealed by the District of Columbia Code of 1901 (31 Stat. 
1189).

Judge Prettyman concluded that the 1872 and 1873 Acts 
are now unenforceable, whether they are regarded as “general 
legislation” or “regulatory municipal ordinances” . His rea­
soning was as follows: I f  the Acts of 1872 and 1873 consti-



8

On the merits, the rulings made by the Court 
of Appeals in this case are clearly erroneous. 
As appears infra, pp. 17-21, there is a long, un­
broken line of decisions of this Court which (a) 
uphold the power of Congress under the Con­
stitution to delegate to the federal territories, 
including the District of Columbia, authority to 
legislate on local matters, and (b) construe terri­
torial organic acts containing provisions substan­
tially identical to Section 18 of the District of 
Columbia Organic Act of 1871 as delegating 
comprehensive authority to enact local legislation.

Nothing in the Constitution, or in the decisions 
of this Court interpreting it, supports the notion 
that the constitutional power of Congress to dele­
gate local legislative authority in the District is 
limited by a vague and undefined distinction be­
tween “ general legislation”  and “ municipal reg­
ulations.”  That distinction was evolved in the 
law of municipal corporations governing the 
powers o f ordinary municipalities within a state. 
Even in that context, it does not forbid a state, if

tuted “general legislation,” they were, for the reasons stated 
by Chief Judge Stephens, invalid when enacted, and in any 
event repealed by the 1901 Code; if the Acts were “ regulatory 
municipal ordinances” and valid when enacted, they “must 
be deemed by the courts to have been abandoned by the 
licensing authority” (E. 89-90).

For the reasons set out in footnote 26, infra, the Govern­
ment believes that both these grounds for holding the Acts 
unenforceable are clearly without merit.

I I I



9

it chooses to do so, to delegate to a municipality 
authority to enact local ordinances dealing with a 
“ general”  subject-matter. In any event, the con­
siderations underlying that distinction are wholly 
inapplicable to the District of Columbia, and it 
has no relevance in determining the scope of the 
power granted to Congress in the Constitution 
for governing the District o f Columbia.

Apart from the decision of the Court of A p­
peals in this case, there could be no doubt (as 
is shown infra, pp. 13-21) of the power of Con­
gress to establish a local government in the Dis­
trict o f Columbia and to delegate to it authority 
to enact local legislation. The decision below, 
however, has created widespread uncertainty and 
stirred grave doubts as to the extent of the power 
of Congress in relation to the District of Colum­
bia. This aspect of the decision below has par­
ticular significance at the present time, when 
Congress is considering proposed legislation to 
grant “ home rule”  to the residents of the District 
of Columbia. In his address to Congress on Feb­
ruary 2, 1953, President Eisenhower recom­
mended that “ Here in the District of Columbia, 
serious attention should be given to the proposal 
to develop and to authorize, through legislation, 
a system to provide an effective voice in local 
self-government.” 8 Bills providing home rule 
for the District were passed by the Senate in

8H. Doc. No. 75, 83d Cong., 1st Sess., p. 13.



10

1949 (81st Cong., 1st Sess.) 9 and again in 1952 
(82d Cong., 2d Sess.).10 Similar legislation lias 
been introduced at the present session.11

The proposals for home rule in the District 
have two main objectives which give the matter 
national as well as local importance: (1) To 
extend to the residents of the District of Colum­
bia, as fully as is consistent with the national 
interest, the democratic right, enjoyed by all other 
American citizens, of local self-government. (2) 
To relieve Congress of the unnecessary, time- 
consuming burden of acting as a city council for 
the District. The Joint Committee on the Or­
ganization of Congress (the La Follette-Monroney 
committee) reported that “ a high percentage of 
congressional time is devoted to matters of purely 
local or petty importance. More time is con­
sumed in serving as the city council for the Dis­
trict of Columbia than is spent on matters in­
volving great importance to the Nation. * * '* 
The Nation cannot afford the luxury of having 
its national legislative body and the District com­
mittees in both the House and Senate perform the 
duties of a city council for the District of Colum­
bia. In order to relieve Congress of this extrane­
ous work-load and enable it to devote full atten­
tion to national legislation, we recommend that a

9 S. 1527; 95 Cong. Eec. 7010-7018.
10 S. 1976; 98 Cong. Eec. 391.
11 S. 999 ;H . E. 1395.



11

plan for self-rule for the District o f Columbia be 
provided as early as possible.” 12

The question whether, and in what form, 
Congress should grant the people of the District 
o f Columbia home rule with authority to enact 
local laws incident to self-government, including 
those dealing with problems arising from racial 
discrimination, is properly one of legislative pol­
icy and not of constitutional power. Prior to the 
decision below, Congress was concerned more 
with the wisdom of such legislation than its 
constitutionality.13 The decision of the Court of 
Appeals in this case compels Congress to deal 
with home rule legislation under a heavy over­
hanging cloud of' doubt and confusion as to the 
extent of its constitutional power. That cloud 
would remain indefinitely as an effective obstacle 
to legislative action, if  the decision below should 
stand unreviewed. In the national interest, re­
view and reversal of the decision of the Court of 
Appeals is required to enable Congress to deal 
with the question of home rule for the District 
as it should be dealt with, in the framework of

12 S. Rep. No. 1011,79th Cong., 2d Sess., p. 24.
13 See, e. g ., the report of the Senate Committee on the Dis­

trict of Columbia recommending enactment of S. 1976 by the 
82d Congress. That report contained a supporting memo­
randum of law which concluded that there was no doubt as 
to the power of Congress “ to vest in a legislative body estab­
lished for the District of Columbia general legislative power 
with respect to the District.”  (S. Rep. No. 630, 82d Cong., 
1st Sess., p. 13.)



12

legislative policy determination rather than of 
constitutional interpretation.

A  further reason exists for granting the writ 
in this case. The Court o f Appeals has held un­
enforceable two local laws prohibiting racial dis­
crimination by owners of restaurants and cer­
tain other places of public accommodation in the 
District of Columbia. The decision below does 
more than to deprive these Acts o f vitality; in 
holding that “ civil rights legislation”  is outside 
the proper limits of municipal power, the court 
has erected a barrier against delegation by Con­
gress to the people of the District of Columbia 
of authority to deal, on a local basis, with the 
problem of racial discrimination in the District.

The importance of solving this problem is em­
phasized by the recognition given it by the Presi­
dent in his address to the Congress on February 
2, 1953, in which he reviewed the major issues 
confronting the country and stated the basic 
policies which would be pursued by the Adminis­
tration in dealing with them. He said:

Our civil and social rights form a central 
part of the heritage we are striving to de­
fend on all fronts and with all our 
strength.

* * * * *
A  cardinal ideal in this heritage we cher­

ish is the equality of rights of all citizens 
of every race and color and creed.



13

We know that discrimination against 
minorities persists despite our allegiance to 
this ideal.

*  *  *  *  *

I  propose to use whatever authority ex­
ists in the office of the President to end 
segregation in the District of Columbia, 
including the Federal Government * * *.14

Several hundred thousand Federal employees, 
representing every segment o f our population, 
work and live in the District of Columbia area. 
It is the established policy of the United States 
that its employees shall be hired, and shall work 
together, without regard to any differences of 
race or color.

IV

So far as concerns the power of Congress to 
legislate for it, or to delegate local legislative 
power, the District of Columbia stands on the 
same constitutional footing as other federal 
territories. The government of the District was 
specifically provided for by Article I, Section 8 
of the Constitution, which reads as follows:

The Congress shall have 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 * * *.

14 H. Doc. No. 75, 83d Cong., 1st Sess., p. 13.
245592— 53------ 3



14

The word “ exclusive”  does not, as the majority 
judges in the Court of Appeals seemed to as­
sume, mean “ non-delegable.”  It was put into 
the constitutional provision solely in order to 
make it clear that the law-making authority of 
Congress should be exclusive and not concurrent 
with that of the ceding states. See The Federa­
list, No. 43. The Supreme Court of the District 
of Columbia, in 1879, correctly observed “ that 
the term ‘ exclusive’ has reference to the States, 
and simply imports their exclusion from legis­
lative control of the District, and does not neces­
sarily exclude the idea of legislation by some 
authority subordinate to that of Congress and 
created by it.”  Roach v. Van Riswick, Mac- 
Arthur & Mackey 171, 174.15

There is no significant difference, with regard 
to the power of Congress to delegate local legisla­
tive authority, between Article I, Section 8, deal­
ing with the District of Columbia, and Article 
IY, Section 3, dealing with the other federal 
territories. The latter provision reads:

The Congress shall have Power to dispose 
of and make all needful Rules and Regu-

15 The framers of the Constitution apparently took it for 
granted that local self-government would be established for 
the District of Columbia. Madison wrote in The Federalist, 
No. 43: “ a municipal legislature for local purposes, derived 
from their own suffrages, will of course be allowed them 
[the residents of the District].” And almost immediately 
upon assuming control over the District area, Congress estab­
lished local governments, with popularly elected legislative 
bodies, which continued until 1871. See footnote 23, infra.



15

lations respecting the Territory or other 
Property belonging to the United
States * * *.

The word “ exclusive”  in Article I, Section 8, 
serves the same function as “ all” in Article IV, 
Section 3. Under both provisions it is clear that 
the law-making power of Congress with respect to 
the District of Columbia and the territories is 
exclusive, but only in the sense that no state can 
intrude upon its supreme legislative authority; 
under neither provision is Congress precluded 
from creating subordinate bodies endowed with 
local legislative authority.

The Act of July 16, 1790, 1 Stat. 130, in which 
Congress established the District of Columbia as 
the permanent seat of the government of the 
United States, described it as a “ district of 
territory.” (See footnote 23, infra.) And when 
Congress in the Organic Act of 1871 established 
a single unified government for “ all that part of 
the territory of the United States included within 
the limits of the District of Columbia”  (16 Stat. 
419), the debates on the bill reflected an explicit 
recognition that it was creating a territorial gov­
ernment for the District patterned on other terri­
torial governments. Cong. Olobe, 41st Cong., 3d 
Sess., 642-644, 686-687,1363. And both this Court 
and the Court of Appeals for the District of Co­
lumbia, in referring to the form of government 
established by the 1871 Act, characterized it as a 
“ territorial government.”  Eckloff v. District of



16

Columbia, 135 U. S. 240, 241; District of Columbia 
v. Hutton, 143 U. S. 18, 20; Roth v. District of 
Columbia, 16 App. D. C. 323, 330; and see Grant 
v. Cooke, 7 D. C. 165, 194, 200-201.

The Act of 1871 delegated to the Legislative 
Assembly of the District of Columbia an all- 
embracing legislative power extending “ to all 
rightful subjects of legislation within said Dis­
trict, consistent with the Constitution of the 
United States and the provisions of this 
act * * *.”  [Section 18; italics added.]16 The 
words “ all rightful subjects of legislation”  did not 
originate in the Organic Act of 1871. Congress 
used substantially identical language in defining the 
legislative powers of the territorial governments 
established in earlier territorial organic acts; 17 and

16 This comprehensive power was restricted in two respects: 
(1) the prohibitions upon the powers of the States contained 
in Article I, Section 10 of the Constitution [i. e., against 
entering into treaties, granting letters of marque and re­
prisal, coining money, etc.) were made applicable to the 
District of Columbia; and (2) Congress reserved the right 
to repeal or modify all acts of the Legislative Assembly. In 
addition, the act withheld from the Legislative Assembly 
power to legislate on specified matters such as divorce, 
descent, court procedure, and remission of fines. None of 
these is relevant to the acts involved in the present case. 16 
Stat. 419, 423.

17 Territorial Organic Acts o f: Louisiana (March 26, 
1804, 2 Stat. 283, 284); Wisconsin (April 20,1836, 5 Stat. 10, 
12) ; Iowa (June 12, 1838, 5 Stat. 235, 237); Oregon (Aug. 
14, 1848, 9 Stat. 323, 325); Minnesota (March 3, 1849, 9 Stat. 
403, 405) ; New Mexico (Sept. 9,1850, 9 Stat. 446,449) ; Utah 
(Sept. 9,1850, 9 Stat. 453,454); Washington (March 2,1853, 
10 Stat, 172, 175) ; Nebraska and Kansas (May 30, 1854, 10



17

these provisions in the various acts were codified 
in Section 1851 of the Revised Statutes (1873- 
1874) as follows: “ The legislative power of 
every Territory shall extend to all rightful sub­
jects of legislation not inconsistent with the Con­
stitution and laws of the United States.”  And 
see 48 U. S. C., secs. 77 and 562.

This Court, in construing these provisions, has 
held that the words “ all rightful subjects of legis­
lation”  embrace all laws which are local and ap­
propriate to territorial self-government. In 
Maynard v. Hill, 125 U. S. 190, 204, the Court 
took note of the essential similarity of the pro­
visions in the organic acts defining the legislative 
powers of the territories, and held that what were 
“ rightful subjects of legislation”  was to be deter­
mined “ by an examination of the subjects upon 
which legislatures had been in the practice of act­
ing with the consent and approval of the people 
they represented. ”  In Cope v. Cope, 137 U. S. 682, 
684, the Court, referring to such a provision in 
the Utah Organic Act, stated that, aside from the 
exceptions expressly contained in that Act, “ the 
power of the Territorial legislature was appar­
ently as plenary as that of the legislature of a 
State.”  Accord: HornbucMe v. Toombs, 18 Wall.

Stat. 277, 279, 285) ; Colorado (Feb. 28, 1861, 12 Stat. 172, 
174) ; Dakota (March 2, 1861, 12 Stat. 239, 241) ; Arizona 
(Feb. 24, 1863, 12 Stat, 664, 665) ; Idaho (March 3, 1863, 12 
Stat. 808, 810) ; Montana (May 26, 1864, 13 Stat. 85, 88) ; 
Wyoming (July 25,1868,15 Stat. 178,180).



18

648, 655-656. And in Christianson v. King 
County, 239 TJ. S. 356, 365, it was said that 
“  ‘ Rightful subjects’ of legislation * * * in­
cluded all those subjects upon which legislatures 
have been accustomed to act.”  See also Puerto 
Rico v. Shell Co., 302 U. S. 253, 260-262.

The grant of legislative power to deal with 
local matters, contained in the District of Colum­
bia Organic Act of 1871 and in the other terri­
torial organic acts, is thus “ as broad and compre­
hensive as language could make it. ’ ’ Puerto Rico 
v. Shell Co., supra, at 261. In effect, these acts 
constitute delegations by Congress to the terri­
torial legislatures of all the local legislative power 
that Congress can constitutionally delegate. The 
power of Congress to make such delegations is 
indisputable. Simms v. Simms, 175 XJ. S. 162, 
168; Binns v. United States, 194 XJ. S. 486, 491; 
Miners’ Bank v. Iowa, 12 How. 1; Christianson v. 
King County, 239 XJ. S. 356, 365. Accordingly, 
this Court and the lower federal courts have con­
sistently sustained the validity of territorial legis­
lation dealing with subjects which, in a state, 
would ordinarily be dealt with by the state legis­
lature. Hornbuckle v. Toombs, 18 Wall. 648 
(procedural code limiting forms of action) ; May­
nard v. Hill, 125 XT. S. 190 (divorce statute); 
Cope v. Cope, 137 XJ. S. 682 (statute permitting 
illegitimate children to inherit) ; Atchison, T. & S. 
F. Ry. v. Sowers, 213 XJ. S. 55 (statute limiting 
tort claims) ; Christianson v. King County, 239



19

U. S. 356 (act escheating property) ; Puerto Rico 
v. Shell Go., 302 IT. S. 253 (anti-trust statute) ; 
People of Porto Rico v. American R. R. Go., 
254 Fed. 369 (C. A. 1) (act regulating freight 
rates) ; Richards v. Bellingham Bay Land Co., 
54 Fed. 209 (C. A. 9) (statute abolishing dower).

It is particularly significant that several terri­
tories, acting under grants of legislative authority 
like that contained in the District of Columbia 
Organic Act of 1871, have enacted laws prohibit­
ing racial discrimination in places of public ac­
commodation. Alaska Compiled Laws, Section 
20-1-3 (1949); Puerto Rico Laws, 1943, Act No. 
131, pp. 404-406;18 Virgin Islands, Act of Septem­
ber 12, 1950, Bill No. 1, 15th Legislative Assembly 
of Virgin Islands, 1st session. The constitution­
ality of such anti-discrimination legislation under 
the Fifth and Fourteenth Amendments is, of 
course, beyond question. Railway Mail Associa­
tion v. Gorsi, 326 U. S. 88, 93-94, 98; Bob-Lo 
Excursion Go. v. Michigan, 333 U. S. 28, 31, 34; 
Western Turf Association v. Greenberg, 204 IJ. 
S. 359; Rhone v. Loomis, 74 Minn. 200; People v. 
King, 110 N. Y. 418.

I f  Congress sees fit to do so, the Constitution 
thus permits it to delegate power to the people

18 The Puerto Rico statute has been upheld by the Supreme 
Court of Puerto Rico as a proper exercise of the legislative 
power granted to the Territory by Congress. People of 
Puerto Rico v. Suazo, 63 Puerto Rico Reports 869.



20

of a territory to govern themselves and to enact 
local laws incident to self-government. In the 
past Congress has pursued the policy of delegat­
ing such local legislative power as soon as it 
found that the people of a territory were ready 
to assume this responsibility.18 The Constitution 
does not prevent Congress from treating the Dis­
trict. of Columbia on the same basis. The Court 
has recognized that whether, and the extent to 
which, Congress should grant “ home rule”  and 
delegate authority to enact local laws in the ter­
ritories, including the District of Columbia, is 
solely a matter of legislative policy:

It must be remembered that Congress, in 
the government of the Territories as well 
as of the District of Columbia, has plenary 
power, save as controlled by the provisions 
of the Constitution; that the form of gov­
ernment it shall establish is not prescribed, 
and may not necessarily be the same in all 
the Territories. W e are accustomed to that 
generally adopted for the Territories, of a 
quasi state government, with executive, leg­
islative and judicial officers, and a legis­
lature endowed with the power of local 
taxation and local expenditures; but Con­
gress is not limited to this form. In the

10 In Clinton v. Englebrecht, 13 Wall. 434, 441, the Court 
noted that the Congressional policy underlying the broad 
grants of legislative authority to the territories “has ever 
been that of leaving to the inhabitants all the powers of 
self-government consistent with the supremacy and super­
vision of National authority * * *.”



21

District of Columbia, it has adopted a dif­
ferent mode of government, and in Alaska 
still another. I t  may legislate directly in 
respect to the local affairs of a Territory or 
transfer the power of such legislation to a 
legislature elected by the citizens of the 
Territory.20

y

The majority judges o f the Court of Appeals 
took a different view of the constitutional power 
o f Congress to delegate legislative authority to a 
local government in the District of Columbia. 
Congress, they held, cannot grant authority to 
enact “ general legislation” ; its delegatory au­
thority is restricted to “ municipal regulations 
and ordinances” ; and “ general legislation”  in­
cludes enactments which “ are in the nature of 
civil rights legislation,”  or which restrict freedom 
of contract, use of property, or carrying on a 
lawful calling. See pp. 5-7, supra.

This test of delegability, if  accepted, would 
appear to preclude even a grant o f authority to 
enact ordinances dealing with such clearly local 
matters as land zoning, regulation of building 
construction, public health regulation, etc. All 
of these limit freedom of contract, use of prop­
erty, and the exercise o f a lawful calling, but 
it could not be seriously contended that they are 
for that reason beyond the power of local govern­
ments.

20 Binns v. United States, 194 U. S. 486, 491. (Italics 
added.)



22

In any event, this distinction between “ general 
legislation”  and “ municipal regulations,”  which 
can find no support in the language or history of 
the constitutional provision, has no relevance to 
the problem of determining the power o f Con­
gress in relation to the District of Columbia. 
The distinction derives from the law of municipal 
corporations applicable to municipalities within a 
state. In a state, legislation o f a municipality 
may possibly encroach upon powers reserved by 
the state legislature or interfere with the rights 
o f other municipalities. Some matters, like the 
law of marriage and divorce, are usually regarded 
as of state-wide concern and as calling for uni­
form state-wide treatment, unless expressly dele­
gated to municipalities. In the law of municipal 
corporations these are regarded as the subjects 
of “ general legislation.” 21 On the other hand, 
matters which may appropriately be dealt with 
on a local basis by a municipality, in the absence 
o f overriding state law to the contrary, are re­
garded as proper subjects of “municipal regula­
tions.”  The essence of the distinction is geo-

21 This does not imply that a state could not delegate to a 
municipality authority to enact local laws dealing with a 
subject of “general legislation.” The extent to which a. state 
can delegate its power to a municipal government is a matter 
for its own determination. Hunter v. Pittsburgh, 207 U. S. 
161, 178-179; Milwaukee v. Raulf, 164 Wis. 172,183; Duluth 
v. Oerveny, 218 Minn. 511, 515.



23

graphical, MeQuillin, Municipal Corporations 
(3d ed, 1949), section 23.03.22

The geographical basis underlying the dis­
tinction between “ general legislation”  and 
“ municipal regulations”  does not exist in the 
District of Columbia,. In the District the powers 
of local government are geographically co­
extensive with the entire area o f the territory. 
In this crucial respect it is totally unlike the 
ordinary municipality within a state, and like a 
territory it combines elements both of a city and 
state. Congress itself described the District of 
Columbia, in the Act o f July 16,1790, 1 Stat. 130, 
establishing the District as the permanent seat of 
the government o f the United States, as a “ dis­
trict o f territory.”  (See footnote 23, infra.) 
And, in similar recognition of the fact that the 
District is not comparable to a city in a state, this 
Court has said “ that the District of Columbia 
is a separate political community in a certain 
sense, and in that sense may be called a, State”

22 As has been noted (footnote 16, supra), the Organic Act 
of 1871 expressly withheld from the Legislative Assembly 
of the District the power to deal with certain specified sub­
jects. Section 17 contained a list of laws which could not be 
enacted by the Legislative Assembly. Among these were 
laws for granting divorces; changing the law of descent; and 
affecting the sale or mortgage of real estate belonging to 
minors. This enumeration of forbidden subjects of local 
legislation did not include “ civil rights” or “ anti-discrimina­
tion” laws. By plain implication, these were included with­
in the residual category of “ all rightful subjects of legisla­
tion” upon which the Assembly was empowered to act.



24

to which Congress can grant “ subordinate legisla­
tive powers of a municipal character * * *” . 
Metropolitan Railroad v. District of Columbia, 
132 IT. S. 1, 9.

To be sure, there was a time, prior to 1871, 
when the District o f Columbia comprised more 
than one municipality; 23 at that time an analogy

23 The Act of July 16, 1790, 1 Stat. 130, provided that a 
“ district of territory, not exceeding ten miles square, to be 
located as hereafter directed on the river Potomac, * * * is 
hereby accepted for the permanent seat of the government 
of the United States.”

When the United States took possession o f the District of 
Columbia in December, 1800, it was divided by Congress into 
two counties, that of Alexandria on the west side of the 
Potomac, and that of Washington on the east side; the laws 
of Virginia were continued over the former, and the laws 
of Maryland over the latter. Act of February 27, 1801, 
2 Stat. 103.

Within part, but not all, of the area of the county of Wash­
ington were the cities of Washington and Georgetown. The 
latter had been incorporated by the Maryland legislature in 
1789, and its status and powers were continued by Congress. 
Act of February 27, 1801, 2 Stat. 103,108. In 1802 the city 
of Washington was incorporated by Congress and endowed 
with the usual powers of a municipal government. Its coun­
cil, elected by the white male residents of the city, was em­
powered to pass by-laws and ordinances. Act of May 3, 
1802, 2 Stat. 195; and see Act of February 24, 1804, 2 Stat. 
254.

In 1805 Congress amended the charter of the city of 
Georgetown to provide for a board of aldermen and a com­
mon council, both to be elected by the “ free white male citi­
zens” of the city, and having the usual legislative powers o f 
a municipal government. Act of March 3,1805, 2 Stat. 332. 
In 1812 the charter of the city of Washington was amended 
in similar fashion. Act of May 4, 1812, 2 Stat. 721. The 
county of Washington was governed by a levy court com-



25

to the law of municipal corporations applicable 
in the states might have been relevant in deter­
mining the powers o f each such municipality. 
But there could certainly have been no doubt 
then that the territory comprising such munici­
palities, i. e., the entire District of Columbia 
area, was—so far as the power of Congress to 
delegate legislative authority was concerned—a 
territory and not an ordinary municipality. 
Obviously, the consolidation in 1871 of these 
municipalities into a single unified government 
for the District of Columbia did not alter its con­
stitutional status, or diminish the power of Con­
gress in relation to it.

In the District of Columbia, as it was con­
stituted by the Act of 1871 arid as it exists today, 
there can be no problem of conflicting laws en­
acted by different municipalities within the Dis­
trict. Dor this reason, laws passed by the Legisla­
tive Assembly defining crimes have been upheld, 
United, States v. May, 2 MacArthur 512, notwith­
standing that a municipal ordinance of such a 
nature, i f  enacted by a city within a state, might

posed of seven commissioners appointed by the President. 
Act of July 1, 1812, 2 Stat. 771. The county of Alexandria 
was re-ceded to Virginia by the Act of July 9,1846,9 Stat. 35.

This pattern of local government within the District con­
tinued, substantially unchanged, until the 1871 Organic Act 
established a single unified government for the entire Dis­
trict of Columbia. See Acts of May 15, 1820, 3 Stat. 583; 
May 17, 1848, 9 Stat. 223; August 6, 1861, 12 Stat. 320; 
March 3,1863,12 Stat. 799.



26

possibly be regarded as “ general legislation”  
reserved, unless expressly delegated, as a subject 
for state-wide legislation.

Mr. Justice Holmes observed that “ It is one 
of tbe misfortunes of the law that ideas become 
encysted in phrases and thereafter for a long 
time cease to provoke further analysis.” 24 In this 
case the majority judges in the court below, with­
out examining the considerations which differ­
entiate the District of Columbia from an ordinary 
municipality within a state, and which make in­
applicable the distinction between “ general legis­
lation”  and “ municipal regulations” , assumed its 
applicability as a constitutional limitation on the 
powers of Congress in relation to the District of 
Columbia. Their main reliance was upon this 
Court’s decision in Stoutenburgh v. Hennick, 129 
U. S. 141. But that case held only that the 
Legislative Assembly had no power to enact a 
law restricting commerce with persons outside 
the District, and that the regulation of interstate 
commerce rested within the exclusive power of 
Congress. True, the Court’s opinion in that case 
stated that Congress “ could only authorize it 
[the District of Columbia] to exercise municipal 
powers * * * ”  (p. 147). But the preceding 
paragraph of the opinion leaves no doubt as to 
what was meant by “ municipal powers” :

24Hyde v. United States, 225 U. S. 347, 391 (dissent).



27

It is a cardinal principle of our system 
of government, that local affairs shall he 
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 interposition o f the su­
perior in cases of necessity.

In its context, therefore, the statement that 
“ general affairs”  shall be managed “ by the cen­
tral authority”  means simply that national mat­
ters, such as regulating interstate commerce, 
declaring war, raising armies, establishing uni­
form rules of naturalization, etc., are to be dealt 
with by Congress on a national basis, and not 
by a local legislature in the District on a local 
basis. The Court, in the same sentence, reiterated 
the “ cardinal principle of our system of govern­
ment, that local affairs shall be managed by local 
authorities * * It neither stated nor im­
plied that there existed a class of “ local affairs



28

o f a general nature”  which could not constitu­
tionally be delegated to local authorities.25

VI

Even if the distinction between “ general legis­
lation”  and “ municipal regulations”  is assumed 
to be applicable, the Acts of 1872 and 1873 in­
volved in this case should be upheld as valid 
‘ ‘ municipal regulations. ’ ’ 26

25 Metropolitan Railroad v. District of Columbia, 182 
U. S. 1, the only other decision of this Court cited in Chief 
Judge Stephens’ opinion, held only that under the Act of 
June 11, 1878 (20 Stat. 102), the District of Columbia had 
a right to bring suit in its own name. That right was 
expressly granted by the 1871 Organic Act, and the Court 
construed the 1878 Act as also giving the District such right. 
Neither that case nor the decisions of the lower District of 
Columbia courts cited in the opinion of Chief Judge 
Stephens furnish any support for the asserted limitation on 
the power of Congress to delegate local legislative authority.

26 Similarly, the Acts of 1872 and 1873 were not repealed 
by the 1901 Code, no matter what label is applied to them. 
Section 1640 of the Code provided that:

Nothing in the repealing clause of this code contained 
shall be held to affect the operation or enforcement in 
the District of Columbia of the common law * * * or 
of any municipal ordinance or regulation, except in so 
far as the same may be inconsistent with, or is replaced 
by, some provision of this code.

It is not claimed that the 1872 and 1873 Acts were expressly 
or specifically repealed by any provision in the 1901 Code. 
The argument for repeal is based mainly on Section 1636 of 
the Code, which repealed “All acts and parts of acts of the 
general assembly of the State of Maryland, general and per­
manent in their nature” and “ all like acts and parts of acts 
of the legislative assembly of the District of Colum- 
bia * * Expressly excepted in that section from repeal



29

Except as limited by constitutional or statutory 
prohibitions, express or implied, the delegated 
power of municipalities to enact regulatory ordi­
nances is as broad as the police power o f a 
state. City of Phoenix v. Michael, 61 Ariz. 238, 
243; Shepherd v. McElwee, 304 Ky. 695, 698;

were, inter alia, acts “relating to * * * police regulations, 
and generally all acts and parts of acts relating to municipal 
affairs only * *

As is shown by the many cases cited in the opinion of 
Chief Judge Cayton in the Municipal Court of Appeals 
(R. 34), the continuing validity of penal laws enacted by 
the Legislative Assembly, unless expressly superseded, has 
consistently been recognized by Congress and the courts of 
the District. See, especially, Johnson v. District o f Colum­
bia, 30 App. D. C. 520, upholding a conviction under a 
cruelty-to-animals statute enacted by the Legislative Assem­
bly in 1871. The Court of Appeals for the District of Co­
lumbia held that that statute, which does not essentially 
differ from the 1872 and 1873 Acts here involved, was saved 
from repeal by the “police regulations” exception of the 
1901 Code.

In any event, the Acts of 1872 and 1873 are squarely within 
the exception of “ acts relating to municipal affairs”. The 
words “municipal affairs” in this context were not limited to 
matters pertaining to municipal organization and internal 
administration but were intended to save all existing acts 
and ordinances properly comprising a municipal code. See 
H. Rep. No. 1017, 56th Cong., 1st Sess.; Carr v. Corning, 
182 F. 2d 14,18,19 (C. A. D. C.) ; cf. Porters. Santa Barbara, 
140 Cal. App. 130, 35 P. 2d 207; Home Tel. d  Tel. Co. v. 
Los Angeles, 155 Fed. 554, 564 (C. C. S. D. Cal.). This 
is evidenced by the further fact that Section 1636 stated that 
“ acts relating to municipal affairs only” should include 
“those regulating the charges of public-service corporations”, 
and that the section expressly saved from repeal “ acts relat­
ing to the organization of the District government, or to its 
obligations, or the powers or duties of the Commissioners of



30

People v. Sell, 310 Mich. 305, 315; Schultz v. 
State, 112 Md. 211, 215-218. The regulation of 
service in restaurants and other places of public 
accommodation is traditionally regarded as a 
proper subject of local regulation. See, e. g., 
Cooper y. District of Columbia, MacArthur & 
Mackey 250, 259, 260. I f  a municipality can 
regulate a restaurant’s sanitary conditions, in the 
interest of the public health; if  it can regulate the 
construction of its building, its seating arrange­
ments, and the number of its patrons, in the 
interest of the public safety; then surely it can

the District of Columbia, or their subordinates or employees 
* * See, generally, Cape Girardeau County Court v. 
Hill, 118 U. S. 68,72.

Judge Prettyman’s alternative ground, that the 1872 and 
1873 Acts are not now enforceable because they have been 
“ abandoned” by reason of the long failure to enforce them 
(R. &0), is clearly without substance. Judge Fahy correctly 
pointed out in the dissenting opinion (R. 114) that the theory 
o f repeal by abandonment rests upon the premise that the 
1872 and 1873 Acts were mere conditions imposed upon 
licenses by the licensing authority. The Acts themselves 
demonstrate the error of this premise. In express terms 
they impose an affirmative legal duty of nondiscrimination 
in service upon owners of restaurants in the District, and 
make violation of that duty a penal offense punishable by 
fine and forfeiture of license. While disavowing such a pur­
pose, Judge Prettyman is in effect applying a doctrine, for 
which he conceded there is no authority whatsoever, of im­
plied repeal of legislation because of nonenforcement. Cf. 
Kelly v. Washington, 302 U. S. 1, 14: “Much is made of the 
fact that the state law remained unenforced for a long period. 
But it did not become inoperative for that reason. Where 
the state police power exists, it is not lost by non-exercise 
but remains to be exerted as local exigencies may demand.”



31

regulate or prohibit, in the interest of the public 
welfare, any discrimination in service on account 
of race or color. An anti-discrimination regula­
tion is not essentially different from these other 
types o f regulation. All of them affect the rights 
and duties of a restaurant owner; all limit his 
freedom of contract and his use of property. In 
each case, however, only local regulation is in­
volved.

Moreover, as is abundantly demonstrated in the 
dissenting opinion of Judge Fahy, municipal 
governments throughout the country have exer­
cised the power to enact ordinances dealing with 
racial discrimination in public places. Many of 
these prohibit racial segregation; others require 
segregation. Apart from the question of their 
validity under the Fourteenth Amendment,27 ordi­
nances requiring racial segregation have been up­
held as within the bounds of municipal power. 
These cases are cited in the opinion of Chief 
Judge Stephens at R. 82.

Chief Judge Stephens stated that the cases 
holding ordinances requiring racial segregation to 
be within the scope of municipal power are not 
authorities in support of the validity of ordi-

27 As the Court is aware, it is the position of the United 
States that racial segregation enforced or supported by law 
is unconstitutional. See briefs for the United States in the 
“school segregation” cases now pending before the Court 
(Nos. 8, 101, 191, 413, 448) and in Henderson v. TJnited 
States, 339 U. S. 816; Sweatt v. Painter, 339 U. S. 629; Mc- 
Laurin v. Oklahoma State Regents, 339 U. S. 637.



32

nances prohibiting segregation. Those cases, he 
said, are “ distinguishable from the instant case 
because in such cases the ordinances were in ac­
cord with a local custom of racial segregation on 
account of color and were held valid upon the 
theory that they were for the purpose of preserv­
ing peace and good order which would likely be 
interfered with by racial association.”  On the 
other hand, the “ enactments involved in the in­
stant case were in conflict with local custom in 
respect of race association and cannot therefore 
be justified as in aid of the preservation of peace 
and order.”  (R. 83.) 28

It would appear that under this test an ordi­
nance is “ municipal”  and valid if  a court finds 
it is in accord with “ local custom”  and will

28 Chief Judge Stephens assumed it to be a fact, so clear 
and indisputable that a court could take judicial notice of it 
without receiving evidence, that “ there was general discrimi­
nation on account of color at the time the enactments in 
question in the instant case were passed” (R. 81), and that 
such “ a custom of race disassociation in the District” (R. 88) 
has continued to this day.

The dissenting opinion of Judge Fahy, however, shows the 
lack of factual support for the conclusion that there is, and 
has been, “ a custom of race disassociation in the District” so 
general and well-known that a court can properly take 
judicial notice of it (R. 120) :

It is enough to point out that custom has not moved 
away from equal treatment, leaving these regulations 
derelicts of the past. Custom has moved toward equal 
treatment, as is shown by developments of recent years 
in the Government, in the armed services, in industry, 
in organized labor, in educational institutions, in sports, 
in the theatre, and in restaurants in this community, as 
examples.



33

help preserve peace and order; i f  not, the ordi­
nance is “ general”  and invalid. This seems to 
mean that no ordinance could be regarded as a 
valid exercise of municipal authority unless its 
purpose and effect were to preserve peace and 
order. But, obviously, the fact that certain non- 
lawabiding elements might resort to violence in 
resisting a measure they disapprove cannot estab­
lish its invalidity as beyond the limits o f munici­
pal power. I f  Chief Judge Stephens’ opinion 
means that the validity of an ordinance depends 
upon whether it is in accord with “ local custom”  
as judicially noticed by a court, it would follow 
that the more widespread and noxious a local evil 
is, the less would be the power of a municipality 
to deal with i t : a municipal law would be invalid 
if a court finds it in conflict with “ local custom,”  
no matter how deplorable such custom is and how 
strongly the community desires to alter it.

Judge Fahy, on behalf of the four dissenting 
judges in the court below, gave the incisive an­
swer to this contention: “ I f  a municipal ordi­
nance may require segregation it may require 
equal treatment. * * * There is no doctrine 
known to the law that validity or invalidity of 
legislation rests upon whether or not it conforms 
with prevailing custom. Such a consideration 
goes to the wisdom or policy of the legislation, 
not to its validity.”  (R. 108.)

CONCLUSION

The questions o f constitutional law and statu­
tory construction presented by this case are of



34

substantial national importance and warrant re­
view by this Court. Tbe rulings of tbe Court of 
Appeals are in conflict with controlling decisions 
of this Court. Tbe decision below casts a 
cloud upon the constitutional power of Congress 
to grant home rule to the District of Columbia 
and delegate to a local legislature authority to 
enact local laws. The Court o f Appeals has held 
unenforceable two Acts, enacted by the Legis­
lative Assembly of the District o f Columbia dur­
ing a period when the District had a form of 
self-government, which made it unlawful for 
owners of restaurants and other places o f public 
accommodation within the District of Columbia, 
to refuse service to persons on account of race or 
color. The decision has created doubt and un­
certainty as to the extent to which Congress can 
grant to the residents o f the District o f Columbia 
authority to deal with the serious problems aris­
ing from racial discrimination in the District.

The petition for a writ o f certiorari should be 
granted.

Respectfully submitted.
H erbert B rownell, Jr.,

Attorney General.
R o ber t  L. S t e r n ,

Acting Solicitor General.
P h ilip  Elm an ,

Special Assistant to the Attorney General.
M a r c h  1953.

U. S . GOVERNMENT PRINTING OFFICE: 1953