Stout v. Jefferson County Board of Education Initial Brief of Appellants

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August 7, 2017

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Lonnell Carter, Alfornia Carter, Sandra Ray, Ricky Reeves, Alene Reeves and Catrena Carter also acting as plaintiffs-appellants/cross-appellees. Gardendale City Board of Education acting as defendant intervenor-appellee/cross-appellant.

Topic
- Education
Notable People
- Sherrilyn Ifill
- Janai Nelson
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Collection
- Brief Collection
Taxonomy
Identifier
- c371b147-c59a-ee11-be37-00224827e97b

Cite this item

Brief Collection, LDF Court Filings. John R. Thompson Company, Inc. v. District of Columbia Brief Amicus Curiae, 1951. 6becbc16-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ebae8d7e-a01b-4284-bc6f-520bb4548870/john-r-thompson-company-inc-v-district-of-columbia-brief-amicus-curiae. Accessed April 27, 2025.

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BRIEF OF
AMERICAN VETERANS COMMITTEE, INC. (AVC)

AMICUS CURIAE

IN THE

United States Court of Appeals
F oe t h e D is t b ic t o f C o l u m b ia C ir c u it

No. 11,039
JOHN E. THOMPSON COMPANY, INC., Appellant,

DISTRICT OF COLUMBIA, Appellee.

No. 11,044
DISTRICT OF COLUMBIA, Appellant,

JOHN R. THOMPSON COMPANY, INC., Appellee.

Appeals from the Municipal Court of Appeals for the
District of Columbia,

P h in e a s I n d r it z
G eo b .g r B u n n

Attorneys for
American Veterans Committee, Inc.

Amicus Curiae
1751 New Hampshire Ave., N. W.
Washington 9, D. C.
Dated: October 22, 1951

P ress of Byron S. Adams, W ashington, D. C.

INDEX
Page

Interest of the American Veterans Committee (AVC)............. 1

The facts of this case..................................................................... 3

Argument...................................................................................... 5
I. The Legislative Assembly was validly empowered to

enact the acts of 1872 and 1873 ........................................ 5

II. The 1872-1873 Acts have not been repealed.................. 15

A. The 1872 Act was not repealed by the 1873 Act. 15

B. The change of Government effected in 1874 and
1878 did not repeal the 1872-1873 Acts............... 16

C. The 1872 and 1873 Acts were saved from repeal
(and were in effect re-enacted) by section 1636
and 1640 of the 1901 D. C. Code. This is conclu
sively demonstrated by this Court’s decision in
Johnson v. District of Columbia, 30 App. D. C.
520, 36 Wash. L. Bep. 173 (1908)......................... 22

(1) “ Acts relating to police regulations” .......... 24
(2) “ Acts relating to municipal affairs only ” .. 27
(3) “ Penal statutes authorizing punishment by

fine only” ........................................................ 32

D. The 1872-1873 Acts have not been repealed by,
and are not inconsistent with, any regulation pro
mulgated by the District Commissioners or any
other sta tu te ........................................................... 32

E. The District Government’s failure for many years
to enforce the 1872-1873 Acts did not effect a re
peal of those a c ts .................................................... 34

III. The Acts of 1872 and 1873 were, and still are, reasonable
and necessary measures to remedy a real munici
pal evil, and should therefore be accorded the
benefit of the presumption that such legislative
measures are valid and still in effect................... 35

A. Historical background of enactment and enforce
ment of the 1872-1873 A c ts .................................. 35

II INDEX CONTINUED.

IV. The District of Columbia is ready and will accept equal
ity of right in the public eating places of our Na
tion’s C apital................................................................. 42

Page

APPENDICES.

A. Examples of foreign reactions to racial discrimination in
the District of Columbia...................................................... la

B. The Background of this case....................................... . 6a
C. Summary of Acts of 1872 and 1873.................................... 7a
D. Summary of decisions recognizing validity of Acts of Leg

islative Assembly after 1878 ................................................ 9a
E. Legislative History of the 1878 Organic Act....................... 11a
P. Examples of Boycotts of Washington because of its racial

discrimination....................................................................... 13a

TABLE OP AUTHORITIES.
Cases :

Air Terminal Services, Inc. v. Bentzel, 81 P. Supp. 611 (D. C., E. D.
Va. Alex. Div. 1949) .................................................................................... 45

Atchison, T. $ S. F. By. v. Sowers, 213 U. S. 55 (1909) . . .......................... 9
Bank. v. Bell, 62 Calif. App. 320, 217 Pae. 538 (1923) ................................ 31
Binns v. United States, 194 U. S. 486 (1904) .................................................. 7
Bird v. United States, 187 U. S. 118 (1902) ................................................. 17
Board of Trade of City of Chicago v. Wallace, 67 F. (2nd) 402 (C. C. A.

7th 1933) cert. den. 291 U. S. 680 (1934) .............................................. 32
Bob-Lo Excursion. Co. v. Michigan, 333 U. S. 28 (1948) .............................. 10
Buchanan v. Worley, 245 U. S. 60 (1917) ...................................................... 47
Bungalow Amusement Co. v. City of Seattle, 148 Wash. 485, 269 Pae. 1043

(1 9 2 8 )...................................................................................................._ . . . . 13
Bush v. District of Columbia, I App. D. C. 1 (1893) ...................................... 10a
Butts v. Merchants Sr Miners Transportation Co., 230 U. S. 126 (June

16, 1913).........................................................................................................39, 40
Callan v. District of Columbia, 16 App. D. C. 271 (1900) ............................ 11a
Cape Girardeau County Court v. Hill, 118 IT. S. 68 (1886) ............................ 23
Carr v. Corning 86 App. D. C. 173, 182 Fed. (2d) 14 (1950) .................. 30,31
Chicago, B. ty Q. B. Co. v. Iowa, 94 U. S. 155 (1876 ) .................................. 34
Christianson v. King County, 239 U. S. 356 (1915) ...................................... 7,9
Civil Bights Cases, 109 U. S. 3 (3883) ..........................................................38,40
Clinton v. Englebrecht, 80 U. S. (13 Wall.) 434 (1871) .............................. 7
Cooper v. District of Columbia, MaeArthur & Mackey (11 D. C.) 250

(1 8 8 0 )............................................................................. 12, 9a
Cope. v. Cope, 137 U. S. 682 (1891) ............................................................. 7, 9
Corporation of Washington v. Eaton, 4 Cranch C. C. (4 D. C.) 352, 29 Fed.

Cases, p. 345, No. 17,228 (1833) .............................................. 5

INDEX CONTINUED.

Costello v. Palmer, 20 App. D. C. 210, 30 Wash. L. Eep. 402 (1902) .......... 35
Coughlin v. District of Columbia, 25 App. D. C. 251 (1905) ...................... 33
Cronin v. Adams, 192 U. S. 108 (1904) ........................................................... 13
Cronin v. Adams, 29 Colo. 488, 69 Pac. 590 (19021 ...................................... 13
Crooms v. Schad, 51 Fla. 168, 40 So. 497 (1906) .......................................... 13
Dennison v. Gavin, 3 MaeArthur (10 D. C.) 265 (1877) .......................... 16, 33
D. Ginsburg 4' Sons, Inc. v. Popkin, 285 IT. S. 204 (1932) .......................... 17
District of Columbia v. Bailey, 171 IT. S. 161 (1898) ................................. 33
District of Columbia v. Burgdorf, 6 App. D. C. 465 (1895) ..................... 9a
District of Columbia v. Doming, 47 App. D. C. 413 (1918) ....................... 42
District of Columbia v. Dutton, 143 U. S. 18 (1892) .............................. 8, 20, 21
District of Columbia v. John R. Thompson Company, Inc., 81 Atl. (2d)

249, 79 Wash. 1. Sep. 726 (1951) ............................................................ 4
District of Columbia v. Lee, 35 App. D. C. 341 (1910) .................................. 33
District of Columbia v. Nau, 9 Mackey (20 D. C.) 547 (1892) ..........8a, 11a
District of Columbia v. Waggaman, 4 Mackey (15 D. G.) 328 (1885) . . . . 10a
District of Columbia v. Watson (No. 484,055, Criminal, Mun. Gt.) ... 26
District of Columbia v. Weaver, 6 App. D. 0. 482 (1895) ......................... 9a
Donnell v. State, 48 Miss. 661, 12 Am. Sep. 375 (1873) .............................. 24
Eckloff v. District of Columbia, 135 U. S. 240 (1890) ...................................8,20
Ex Parte Meyers, 7 Calif. App. 528, 94 Pac. 870 (1908) .............................. 13
Ex Parte Wall, 107 U. S. 265 (1882).............................................................. 32
Federal Communications Comm. v. WOKO, 329 U. S. 223 (1946) .............. 32
Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718 (1890) .................................. 48
France v. Corp. of Washington, 5 Cranch C. C. (5 D. C.) 667, 9 Fed. Cases,

p. 660, No. 5028 (1840) ............................................ ................................. 5
Goggin v. Calif. Labor Div., 336 IT. S. 118 (1949)...................................... 28
Graham and Foster v. Goodcell, 282 U. S. 409 (1931).................................. 17
Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U. S.

232 (1949) ...................................................................................................43,44
Grant v. Cooke, 7 D. C. 165 (1871).................................................................. 8
Greenberg v. Western Turf Assn., 140 Calif. 357, 73 Pac. 1050 (1 9 0 3 ).... 24
Gundlvng v. Chicago, 176 111. 340, 52 N. F. 44 (1898).............. 13
Dawlcer v. New York, 170 IT. S. 189 (1898).................................................. 32
Denderson v. E Street Theatre Corp., 63 Atl. (2d) 649, 76 Wash. L. Rep.

1165 (Mun. Ct. App. Dist. Col., 1948).................................................. 40
Denderson v. United States, 339 U. S. 816, (1950).............................. 38,43,44
Dome Tel. Sr Tel. Co. v. City of Los Angeles, 155 Fed. 554 (C. C., Calif.

1907) 31
Domer 4 &on v- Commonwealth, 106 Pa. St. Eep. 221 (1884).................. 34
Dopkins v. City of Richmond, 117 Va. 629, 86 So. 139 (1915)........ 13
Dornbuckle v. Toombs, 85 IT. S. (18 Wall.) 648 (1874)................ 9
Durd v. Dodge, 334 IT. S. 24 (1948)................................................... ..35,43,44
Johnson v. District of Columbia, 30 App. D. C. 520, 36 Wash. L. Eep. 173

(1908) .............................................................................................. 22,24,30, 9a
Johnson v. District of Columbia, 6 Mackey (17 D. C.) 21 (1887).............. 11a
Keller v. Potomac Electric Co., 261 U. S. 428 (1923).................................. 7
Kelly v. Washington, 302 IT. S. 1 (1937)......................................................... 34
Lansburgh v. District of Columbia, 11 App. I). C. 512 (1897)...................... 11a
Lasley v. District of Columbia, 14, App. D. C. 407(1899)......................18, 9a
Lauer v. District of Columbia, 11 App. D. C. 453 (1897).......................... 42
Lewis v. District of Columbia, — App. D. C. —, 190 F. (2d) 25 (1951) .. 12
L ’Dote v. New Orleans, 177 IT. S. 587 (1900).............................................. 24
Louisville # N. B. Co. v. United States, 282 U. S. 740 (1931).................. 34
Lynch v. United States, 189 F. (2d) 476 (C. A. 5, 1951) ..................... 14
Maynard v. Dill, 125 U. S. 190 (1888).............................................................7,9
Mayo v. James, 53 Va. (12 Gratt.) 17 (1855).................................................. 13
McDemott v. Wisconsin, 228 IT. S. 115 (1913).................................. 42
McDonald v. Thompson, 305 XT. S. 263 (1938).................................. 17
McKeown v. State, 197 Ark. 454, 124 S. W. (2d) 19 (1939).............. . 34

i i i

Page

McLaurin y. Oklahoma State Regents, 339 U. S. 637 (1950)......................43, 44
Milliken v. Meyers, 25 Calif. App. 510, 144 Pac. 321 (1914)...................... 31
Miners’ Sank y. Iowa, 53 U. S. (12 How.) 1 (1851).................................. 7
Mitchell v. United States, 313 U. S. 80 (1941).............................................. 38,47
Morgan y. Virginia, 328 U. S. 373 (1946).......................................................... 44
Nanee v. Mayflower Tavern, Inc., 106 Utah 517, 150 P. (2d) 773 (1944). . 14
National Bank v. Shoemaker, 97 U. S. 692 (1878).......................................... 6
Nichols Sr Co. v. Secretary of Agriculture, 131 F. (2d) 651 (C. C. A. 1st

1942) 32
Parsons v. District of Columbia, 8 App. D. C. 391, 24 Wash. L. Bep. 269

(1896), affirmed, 170 U. 8. 45 (1898)...................................................... 9a
Patterson y. Taylor, 51 Fla. 275, 40 So. 493 (1906)...................................... 13
People v. King, 110 N. Y. 418, 18 N. E. 245 (1888)...................................... 24
People of Puerto Rico v. Suazo, 63 Puerto Bieo Bep. 869 (1944).............. 10
People of Puerto Rico y. American R. R. Co., 254 Fed. 369 (C. C. A. 1,

1918) 9
Porter v. City of Santa Barbara, 140 Calif. App. 130, 35 P. (2d) 207

(1934) 31
Prawdzik y. City of Grand Rapids, 313 Mich. 376, 21 N. W. (2d) 168

(1946) 12
Puerto Rico v. Shell Co., 302 U. S. 253 (1937).............................................. 9, 10
Queenside Kills Realty Co. v. Saxl, 328 U. S. 80 (1946).............................. 12
Railroad Company y. Brown, 84 U. S. (17 Wall.) 445 (1873).................... 36
Railway Mail Ass’n y. Corsi, 326 U. S. 88 (1945).......................................... 11
Richards v. Bellingham Bay Land Co., 54 Fed. 209 (C. C. A. 9, 1893)........ 9
Richards v. Davison, 45 App. D. C. 395 (1916)................................................ 33
Roach v. Van Riswick, MacArthur #■ Mackey, (11 D. C.) 250 (1880)..........8,12
Roth y. District of Columbia, 16 App. D. C. 323 (1900).............................. 8
Schoen Bros. y. Pylant, 162 G-a. 565, 134 S. E. 304 (1926).......................... 12
Screws v. United States, 325 U. S. 91 (1945).............................................. 14, 42
Shelley y. Kraemer, 334 U. S. 1 (1948)................................................. 43,44,47
Simms v. Simms, 175 U. S. 162 (1899)................................................................. 7
Smith y. Allwright, 321 U. S. 649 (1944).................................................... 44
Smith y. Olcott, 19 App. D. C. 61, 29 Wash. L. Bep., 766 (1901)......... 25,10a
Smith y. Stoutenburgh, 8 App. D. C. 510 (1896).............................................. 11a
Standard Oil Co. v. Fitzgerald, 86 F. (2d) 799 (C. C. A. 6th 1936), cert.

den. 300 U. S. 683 (1937).......................................................................... 34
State y. Gurry, 121 Md. 534, 88 Atl. 546 (1913).......................................... 13
Steele v. Louisville # Nashville R. Co., 323 U. S. 192 (1944)...................... 44
L. P. Steuart Bros. y. Bowles, 78 App. D. C. 350, 140 F. (2d) 703,

affirmed, 322 U. S. 398 (1944).................................................................. 32
Stevens y. Stoutenburgh, 8 App. D. C. 513 (1896)...................................... 11a
Stoutenburgh y. Hennick, 129 U. S. 141 (1889)......................................6,18,25
Strauder y. West Virginia, 100 U. S. 303 (1880)...................................... ’ . ’ 44
Sweatt y. Painter, 339 U. S. 629 (1950).......................................................... 43
Takahashi v. Fish & Game Commission, 334 U. S. 410 (1948).................. 43
United States ex. rel. Daly y. McFarland, 28 App. D. C. 552 (1907). 33
United States ex rel. Early y. Richards, 35 App. D. C. 540 (1910). 33
United States v. Alpers, 338 U. S. 680 (1950)............................................... 42
United States y. Borden Co., 308 U. S. 188 (1939)......................... 17
United States v. Burroughs, 289 U. S. 159 (1933).......................................... 17
United States v. Dewitt, 76 U. S. (9 Wall.) 41 (1869).................................. 24
United States v. Dotterweich, 320 U. S. 277 (1943)................................... . 42
United States v. Freeman, 239 U. S. 117 (1915).............................................. 42
United States y. May, 2 MacArthur (9 D. C.) 512 (1876).......................... 16
United States v. Powers, 307 U. S. 214 (1939).......................................... 17
United States v. Raynor, 302 U. S. 540 (1938).............................................. 42
Village of Euclid y. Ambler Realty Co., 272 TJ. S. 365 (1926).................. 12
Walker v. New Mexico fy Southern Pacific R. Go., 165 U. S. 593 (1 8 9 7 ).... 7
Washington v. Miller, 235 U. S. 422 (1914).................................................. 17

iv INDEX CONTINUED.

Page

INDEX CONTINUED. v

Page

Welch y. Cook, 97 XJ. S. 541 (1878)..................................................................
Western Turf Association v. Greenberg, 204 U. S. 359 (1907)..................
Williams v. United States, 341 U. S. 97 (1951)..........................................
Wood v. United States, 41 XT. S. (16 Pet.) 342 (1842)..............................
Wright v. Securities and Exchange Commission, 112 F. (2d) 89 (G. C. A.

2nd 1940) ......................................................................................................

6
10
14
42

A c t s :

Aet of May 3, 1802 (2 Stat. 195).................................................................. 5
Act of Feb. 24, 1804 (2 Stat. 254).................................................................. 5
Act of March 26, 1804 (2 Stat. 283).............................................................. 7
Act of March 3, 1805 (2 Stat. 332)................................................................ 5
Aet of Dee. 15, 1810, Ninth Council, Laws, Corp. of Wash., p. 29.......... 14
Act of May 4, 1812 (2 Stat. 721).................................................................. 5
Act of May 15, 1820 (3 Stat. 583).............................................................. 5
Act of April 20, 1836 (5 Stat. 10).................................................................. 7
Act of June 12, 1838 (5 Stat. 235)............................................................... 1
Act of May 17, 1848 (9 Stat. 223)............................................................... 5
Act of Aug. 14, 1848 (9 Stat. 323)............................................................... 1
Act of March 3, 1849 (9 Stat. 403)............................................................... 7
Act of Sept. 9, 1850 (9 Stat. 446).............................................................. 7
Act of Sept. 9, 1850 (9 Stat. 453).................................................................. 7
Act of March 2, 1853 (10 Stat. 172).......................................................... 7
Act of June 3, 1853, Fifteenth Council, Laws, Corp. of Wash., p. 81---- 14
Act of May 30, 1854 (10 Stat. 277)............................................................... 7
Aet of Feb. 28, 1861 (12 Stat. 172)............................................................... 7
Aet of Mar. 2, 1861 (12 Stat. 239)............................................................... 7
Aet of Feb. 24, 1863 (12 Stat. 664).............................................................. 7
Act of March 3, 1863 (12 Stat. 805).......................................................... 36
Act of Mar. 3, 1863 (12 Stat. 808).............................................................. 7
Act of May 26, 1864 (13 Stat. 85)................................ - ........................... 7
Act of July 1, 1864 (13 Stat. 326, 329)...................................................36,45
Act of July 2, 1864 (13 Stat. 344, 351)...................................................... 36
Act of March 3, 1865 (13 Stat. 507).......................................................... 36
Act of March 3, 1865 (13 Stat. 536, 537)...................................................36,45
Act of April 9, 1866 (14 Stat. 27 ) .............................................................. 36
Aet of June 21, 1866 (14 Stat. 66, 67 ).......................................................... 36
Act of January 8, 1867 (14 Stat. 37).......................................................... 36
Act of January 25, 1867 (14 Stat. 379)...................................................... 36
Aet of March 2, 1867 (14 Stat. 438).......................................................... 36
Act of July 13, 1868 (15 Stat. 85, 88) ...................................................... 36
Act of July 26, 1868 (15 Stat. 178).............................................................. 7
Act of March 18, 1869 (16 Stat. 3 ) .............................................................. 36
Act of June 10, 1869, 66th Council, Laws, Corp. of Wash., p. 22...........14, 37
Act of Mar. 7, 1870, 67th Council, Laws, Corp. of Wash., p. 22...........15,37
Act of May 31, 1870 (16 Stat. 140).............................. .............................. 36
Act of February 21, 1871 (16 Stat. 419).......................................................5,15
Act of April 20, 1871 (17 Stat. 1 3 )...................... ....................................... 36
Aet of June 20, 1872, D. C. Legislative Assembly (eh. 51, p. 65)..........3, 7a
Act of February 17, 1873 (17 Stat. 464)...................................................... 11a
Act of March 3, 1873 (17 Stat. 601)................................ 36
Act of June 26, 1873, Legislative Assembly ch. 46, p.^116)......................3, 7a
Act of June 20, 1874 (18 Stat., part 3, p. 116).......... ............................... 16
Act of June 22, 1874 (18 Stat., part 2 ) ...................................................... 16
Aet of March 1, 1875 (18 Stat. 335) (Civil Rights A et)........................... 36
Act of June 11, 1878 (20 Stat. 102).............................................................. 16
Act of June 19, 1878 (20 Stat. 166).......................................................... 18
Act of January 26, 1887 (24 Stat. 368, ch. 48 ).......................................... 18
Act of January 26, 1887 (24 Stat. 368, eh. 4 9 ).......................................... 6

IV INDEX CONTINUED.

Act of Feb. 4, 1887 (24 Stat. 379).............................................................. 38
Act of March 2, 1889 (25 Stat. 872)........................................................... 19
Act of March 3, 1891 (26 Stat. 841)........................................................... 18
Act of February 26, 1892 (27 Stat. 394)..................................................... 6
Act of March 3, 1893 (27 Stat. 563)........................................ 10a
Act of March 3, 1901 (31 Stat. 1189)......................................................... 22
Act of June 30, 1902 (32 Stat. 520)........................................................... 22
Act of July 1, 1902 (32 Stat. 590, 622)...................................................... 33
Act of March 2, 1911 (36 Stat. 966)..........................................................18, 19
Act of Aug. 24, 1912 (37 Stat. 512).......................................................... 10
Act of Mar. 2, 1917 (39 Stat. 951)............................................................. 10
Act of May 29, 1928 (45 Stat. 1007)......................................................... 19
Act of March 2, 1929 (45 Stat. 1540)...................................................... 19
Act of July 1, 1932 (47 Stat. 550).............................................................. 33
Act of January 24, 1934 (48 Stat. 319)...................................................... 33
Act of June 22, 1936 (49 Stat. 1807).......................................................... 10
Act of July 30, 1947 (61 Stat. 633).......................................................... 19
Act or August 1, 1950 (Public Law 630, 81st Congress, sec. 5 ( n ) ) . . . . 43

Codes:

Alaska Compiled Laws, sec. 20-1-3 (1949) .................................................. 10
D. C. Code, 1901 ed., secs. 43 ......................................................................... 18

1636 ...............................................................18,19,22
1640 ...............................................................18,19,22

D. C. Code, 1929 ed., pp. 499-500 .................................................................. 20
D. C. Code, 1940 ed., Preface, p. x iv .............................................................. 29
D. C. Code, 1940 ed., secs. 1-224, 1-226 .......................................................... 6

11-602 .................................................................. 18
22-801 .................................................................. 26
25-101 .................................................................. 33
25-106 .................................................................. 34
47-2301 33
47-2307 33
49-102 19

pp. 1285-1286 ............................................................ 20
D. C. Compiled Statutes, 1887-1889 (Albert & Loveioy, ed., 1894) ch.

XVI, secs. 148-154 ............................................................................................ 3,19
Meyers, William F., Comprehensive General Index of the Laws of the

District of Columbia in force January 1 , 1912” ..................................19,39
Rev. Stats., see. 1851 .......................................................................................... 7
Rev. Stat. for Dist. of Col. (18 Stat., part 2), secs. 49, 50 ...................... 5

354 .......................... 21
355 .......................... 20
1176, 1177 ............ 11a
16-68, 91, 1296 ___ 16

1 IT. S. C., 1946 ed., sec. 54 b .......................................................................... 19
1 IT. S. C., 1946 ed., Supp. I l l , sec. 204(b) .............................................. 19
48 TJ. S. C., 1949 ed., secs. 77, 821, 1405r .................................................. 10
49 IT. S. C., 1946 ed., sec. 3(1) ...................................................................... 38

M iscellaneous :

Alaska Gen. Laws, 1945, ch. 2, sec. 1 ........................................................... 10
Black’s Law Dictionary (4th ed., 1951) p. 1487 .......................................... 14
Blackstone, Commentaries on the Laws of England, Bk. IV, Ch. 13, p.

*162 (Cooley’s Ed., 1876) ....................................................................... 24
Charter of the United Nations, Art. 55(c), 56 (59 Stat. 1031, 1 0 4 5 ).... 43
43 Cong. Globe, 642, 643, 644, 686, 687, 1363 .......................................... 8
7 Cong. Rec., 45th Cong., 2nd sess.

(May 7, 1878), p. 3246 .......................................................................... 11a

Page

INDEX CONTINUED. vii

Page
(May 21, 1878), p. 3607 .......................................................................... lif t
(May 22, 1878), p. 3663 .......................................................................... 12a
(May 24, 1878), p. 3749 .......................................................................... 12a
(May 25, 1878), pp. 3778 and 3780 ...................................................... 12a

42 Cong. Ree. 7017 .......................................................................................... 31
93 Cong. Ree., part 12, p. A-3300 (July 2, 1947) ...................................... 42
95 Cong. Ree. 7010-7018 .................................................................................. 6
Cooley, Treatise on Constitutional Limitations, Ch. XVI, pp. 829, 869

(7th ed., Lane, 1903) .................................................................................. 24
Cox, Walter S., “ Code of Law for the District of Columbia” (1898) .. 28
D. C. Recreation Board, Minutes, July 10, 1951 ........................................ 46
DuBois, W. E. B., Souls of Blaclc Folic (1903) .......................................... 44
Freund, The Police Power, secs. 2, 694-695 (1904) .................................. 24
Graves, W. Brooks, Fair Employment Practices Legislation in the

United States, Federal-State-Municipal, Pub. Aff. Bull. 93 (April
1951) 13

Hearings, Subeomm. on Home Rule & Reorg., House Dist. Comm.
80th Cong., 1st sess., pp. 219-221 (June 30-July 25, 1947) .............. 6
81st Cong., 1st sess., pp. 12-17 (February 17, 1949) ........................ 6

H. Rept. 3491, 51st Cong., 2nd sess................................................................. 18
H. R. 3259, 45th Cong., 2nd sess..................................................................... 11a
H. R. 9835, 56th Cong....................................................................................... 30
H. Rept. 1017, 56th Cong., 1st sess................................................................. 29
Journal, House of Delegates, D. C. Leg. Assembly, 2d Ann. sess. 1872,

v. 4, p. 151 ...................................................................................................... 24
Journal, Council, D. C. Leg. Assembly, 3d reg. sess,, v. 5, p. 255.............. 28
Madison, James, The Federalist and Other Constitutional Papers, No.

43 (Scott Ed. 1898) ................................................................................... 5
National Committee on Segregation in the Nation’s Capital, Report of,

Segregation in Washington (December 10, 1948) ..............................39,41
New York Times (September 25, 1904) ...................................................... 39
Note, 49 A. L. R. 505 (1927) .......................................................................... 10
President’s Committee on Civil Rights, Report of, To Secure These

Bights (Govt. Printing Off., October 29, 1947) ...................................... 41
President’s Committee on Equality of Treatment and Opportunity in

the Armed Services, Report of, Freedom to Serve (Govt. Printing
Off., May 22, 1950) ...................................................................................42,44

President’s Message to Congress, Feb. 2, 1948 (II. Doc. 516, 80th Cong.,
2nd sess.) ................................................................................................ • • • 42

President’s Message to Congress, Jan. 5, 1949 (H. Doc. 1, 81st Cong.,
1st sess.) ........................................................................................................ 42

Puerto Rico Laws, 1943, Act No. 131, p. 404 .............................................. 10
S. 5530, 55th Cong., 3rd sess............................................................................. 29
S. 1527, 81st Cong., 1st sess............................................................................. 6
S. 1976, 82nd Cong............................................................................................. 6
S. Rept. 630, 82nd Cong., 1st sess................................................................. 6
S. Res. 97, 60th Cong......................................................................................... 31
Time Magazine, p. 12 (Aug. 6, 1951) .......................................................... 44
U. S. Constitution, Art. I, sec. 8, cl. 17 ...................................................... 7, 40
IT. 8. Constitution, Art. IV, sec. 3, cl. 2 ...................................................... 8
IT. 8. Constitution, Art. V I .............................................................................. 44
Virgin Islands, Act of Sept. 12, 1950, Bill No. 1, 15th Legis. Assembly,

1st sess. 1950 .................................................................................................. 10
5 Wash. Bd. of Trade Rep. 16 (Nov. 1895) ............................................... 28
8 Wash. Bd. of Trade Rep. 22 (Nov. 1898) ............................................... 28
9 Wash. Bd. of Trade Rep. 20, 134 (Nov. 1899) ....................................... 29

10 Wash. Bd. of Trade Rep. 5, 138 (Nov. 1900) ......................................... 29
12 Wash. Bd. of Trade Rep. 23 (Nov. 1902) ............................................... 30
13 Wash. Bd. of Trade Rep. 119 (Nov. 1903) ............................................. 30
14 Wash. Bd. of Trade Rep. 7, 28 (Nov. 1904) ........................................... 31
15 Wash. Bd. of Trade Rep. 35 (Nov. 1905) ............................................... 31
17 Wash. Bd. of Trade Rep. 43, 149 (Nov. 1907) ....................................... 31

INDEX CONTINUEDTill

Page
18 Wash. Bd. of Trade Hep. 39, 163 (Nov. 1908) ...................................... 31
19 Wash. Bd. of Trade Rep. 34, 117 (Nov. 1909) ...................................... 31
20 Wash. Bd. of Trade Rep. 39 (Nov. 1910) .............................................. 31
Washington Evening Star

(July 20, 1872) ........................................................................................ 36
(August 13, 1872) .................................................................................... 37
(August 27, 1872) .................................................................................... 37
(August 30, 1872) .................................................................................... 37
(September 3, 1872) ................................................................................ 37
(November 2, 1872) ................................................................................ 37
(December 5, 1872) .................................................................................. 37
(July 12, 1950) ........................................................................................ 44
(July 27, 1950) ........................................................................................ 46
(August 20, 1950) .................................................................................... 44
(September 1, 1950) ..................................................... 26
(September 3, 1950) ............................................................................ 46

Washington Post
(June 30, 1947) ........................................................................................ 42
(March 1, 1950), letter of Whyte, James H......................................... 38
(July 12, 1950) .......... 44
(September 3, 1950) .............................................................................. 46
(July 6, 1951), Editorial ........................................................................ 46
(Oet. 3, 1951) .......................................................................................... 46
(Oct. 6, 1951), Editorial ........................................................................ 46

Washington Times-Herald (February 22, 1950) .......................................32,6a
7 Words and Phrases, “ Civil Rights” (Perm. Ed. 1940) ...................... 14
32 Words and Phrases, “ Police Regulations,” (Perm. ed. 1940) .......... 24

IN THE

United States Court of Appeals
F oe t h e D is t r ic t o p C o l u m b ia C ir c u it

No. 11,039
JOHN R. THOMPSON COMPANY, INC., Appellant,

v.
DISTRICT OF COLUMBIA, Appellee.

No. 11,044
DISTRICT OF COLUMBIA, Appellant,

v.
JOHN R. THOMPSON COMPANY, INC., Appellee.

Appeals from the Municipal Court of Appeals for the
District of Columbia.

BRIEF OF
AMERICAN VETERANS COMMITTEE, INC. (AVC)

AMICUS CURIAE

INTEREST OF THE AMERICAN VETERANS
COMMITTEE (AVC).

The American Veterans Committee is a nation-wide or
ganization composed of veterans who served honorably in
the Armed Forces of the United States during World War
II. Our membership includes white and colored veterans
and is without regard to race, color, religion, or national

origin. Many thousands of AYC’s members live and wort
in the District of Columbia.

The restaurant of the Greater Washington AVC Club
house, at 1751 New Hampshire Avenue, N. W., Washing
ton, D. C., of course would not refuse to serve any “ well-
behaved and respectable” person solely because of his race,
color, or religion, whether or not the 1872-1873 Acts are
held valid. AYC, nevertheless, has a direct interest in this
case, since many restaurants covered by the 1872-1873 Acts
refuse service not only to AYC members who are colored
but also to AVC’s white members when in racially mixed
groups.

More important, AVC believes that the racial discrimina
tion so widespread in the District, and so blatantly per
petrated in its restaurants and certain other places of pub
lic accommodation, is inconsistent with the moral and spir
itual foundation upon which rests the edifice of our national
welfare and greatness. Most of our members served over
seas. There was no “ community pattern” of racial dis
crimination and segregation when the chips were down and
there was only the mud, the foxholes, and the dangers of
the ocean and of mortal battle in the fight to preserve our
Nation’s way of life. There should not be any here. This
cancerous evil must and should be excised from our Nation
and from our Nation’s Capital.

Racial discrimination in our Capital City is not only an
injustice to the colored people of the District—it is sym
bolic of a weakness in our democracy which furnishes grist
for the propaganda mills of the communists and fascists
all over the world and impairs our international relations
with many Nations whose friendship we need if we are to
resist the aggressions of totalitarian nations.1 More and
more people, here and abroad, recognize that racial dis
crimination in the United States is of the same cloth as the
Nazi and fascist philosophy of racism whose defeat was a
major aim of the United States and the Allied Nations in
World War II. Such discrimination is inconsistent with

l Examples of foreigners ’ reactions to racial discrimination in the District
of Columbia are in Appendix A, at the end of this Brief.

the stated objectives for which the United States and the
United Nations are now fighting in Korea. Therefore, we
of AYC, as American citizens and veterans who fought and
bled to eliminate that racism, continue to oppose it in
civilian affairs to prevent its becoming a catalyst for an
other World War.

THE FACTS OF THIS CASE.2
On July 27, 1950, three “ well-behaved and respectable

persons”3 seeking a meal in the restaurant owned and oper
ated by the John R. Thompson Company at 725 14th Street,
N. W., Washington, D. 0., were refused service solely be
cause two were colored (Thompson App. 2, 18). An in
formation containing four counts was then filed against
the Company in the Municipal Court for the District of
Columbia, based on the 1872 and 1873 Acts of the Legisla
tive Assembly.4 Count 1 was based on the 1872 Act.
Counts 2, 3, and 4 were based on the 1873 Act.

On August 1,1950, Judge Myers quashed the information
on the basis of his decision in a prior case (Criminal 99,150;
July 10, 1950) in which he ruled as follows:

(a) “ The Legislative Assembly for the District of
Columbia did have the right to enact the two Acts of
1872 and 1873 because they were in the nature of muni
cipal ordinances or police regulations.” (Thompson
App. 10).

(b) “ The Legislative Assembly Acts in their objec
tive light were not unreasonable.” (Thompson App.
11) .

2 The background of this case is summarized in Appendix B.
s These were: (1) Dr. Mary Church Terrell (colored)—former member,

T). O. Board of Education; first and now honorary president of the National
Association of Colored Women; member, Washington Branch, American Asso
ciation of University Women. (2) Rev. Arthur F. Dimes (colored)—Pastor,
Peoples Congregational Church. (3) Miss Jean Joan Williams (white)—Ex
ecutive Secretary, Washington Eellowship (formerly Inter-church Fellowship).

4 The Act of June 20, 1872, is set forth in D. C. Laws, 1871-78, P art IV, ch.
51, pp. 65-66. The Act of June 26, 1873, is set forth in D. C. Laws, 1873, Part
I I , ch. 46, pp. 116-119. Both Acts are compiled in District of Columbia Com
piled Statutes, 1887-1889 (Abert & Lovejoy, ed., 1894), ch. XVI, sees. 148-154,
pp. 183-185. Their pertinent provisions are summarized in Appendix C, at the
end of this Brief.

(c) “ . . . the Acts of 1872 and 1873 of the Legisla
tive Assembly did not survive the Organic Act of 1878
because the latter repealed them by implication.”
(Thompson App. 16).

On May 24, 1951, the Municipal Court of Appeals affirmed
the trial court as to Count 1, and reversed the trial court
as to Counts 2, 3 and 4. District of Columbia v. John R.
Thompson Company, Inc., 81 Atl. (2d) 249, 79 Wash. L.
Rep. 726 (1951).

Chief Judge Cayton ruled that the 1872 and 1873 Acts
were and still are valid. Judge Clagett ruled that both
Acts were valid when enacted and that the 1873 Act is still
valid, but that “ the effect of the 1873 Act was to repeal
the 1872 Act, at least so far as restaurants are concerned”
(81 Atl. 2d at 262; Thompson App. 48). Judge Hood dis
sented solely on the ground that the Acts were invalid when
enacted; his position was that Congress could not validly
empower the Legislative Assembly to enact these Acts be
cause “ the legislation here in question was civil rights leg
islation rising to a higher plane or dignity than mere regu
lation of restaurants and other places of public entertain
ment” (81 Atl. 2d at 265; Thompson App. 53). The court
below thus decided, in effect: (a) that the 1872 Act had
been repealed by the 1873 Act, “ at least so far as restau
rants are concerned” ; and (b) that the 1873 Act was valid
when enacted, has not been repealed, and is valid now.

The Thompson Company petitioned this Court for leave
to appeal from the judgment of the Municipal Court of Ap
peals as to Counts 2, 3 and 4 (No. 11,039); and the District
of Columbia filed a similar petition as to Count 1 (No.
11,044). This Court allowed and consolidated the cross
appeals.

ARGUMENT.

1. THE LEGISLATIVE ASSEMBLY WAS VALIDLY
EMPOWERED TO ENACT THE ACTS OF 1872 AND
1873.

By Act of February 21, 1871 (16 Stat. 419), Congress
abolished the Corporations of Washington and Georgetown,
and the Levy Court, and created “ a government by the
name of the District of Columbia” (sec. 1). Section 5 pro
vided : ‘ ‘ That legislative power and authority in said Dis
trict shall be vested in a legislative assembly as hereinafter
provided.” Section 18 prescribed that “ the legislative
power of the District shall extend to all rightful subjects
of legislation within said District, consistent with the Con
stitution of the United States and the provisions of this
act, subject, nevertheless, to all the restrictions and limita
tions imposed upon States by the tenth section of the first
article of the Constitution of the United States.” (16 Stat.
at p. 423; Rev. Stats, for Dist. of Col., secs. 49-50, 18 Stat.,
part 2, pp. 5-6). The power thus conferred on the Legisla
tive Assembly was equivalent to the police power custo
marily exercised by States. See Part IIC of this Brief.

Such grant of authority was not unique. Rather, it con
formed to the pattern of legislation by which Congress,
under the Constitution, governed the District and the Ter
ritories.

The Framers of the Constitution had envisaged such au
thority for the District. “ A municipal legislature for local
purposes, derived from their own suffrages, will of course
be allowed them,” said James Madison. The Federalist
and other Constitutional Papers, No. 43, p. 239 (Scott Ed.,
1898). Moreover, similar power was granted before 1871
to the Corporations of Washington and Georgetown.5
Analogous power was later granted to the District Com-

5 Act of May 3, 1802 (2 Stat. 195, 197) ; Act of February 24, 1804 (2 Stat.
254, 255) ; Act of May 4, 1812 (2 Stat. 721, 725); Act of May 15, 1820 (3
Stat. 583, 587) ; Act of May 17, 1848 (9 Stat. 223, 224) ; Act of March 3,
1805 (2 Stat. 332, 334-335) (Georgetown). See Corporation of Washington v.
Eaton, 4 Craneh C. G. (4 D. G.) 352, 29 Fed. Cases, p. 345, No. 17,228 (1833) ;
France v. Corp. of Washington, 5 Craneh C. O. (5 D. 0.) 667, 9 Fed. Cases, p.
660, No. 5028 (1840).

missioners.0 And Congress may yet grant similar powers
to a District Council, if the pending Home Eule Bill is
enacted.6 7

The Thompson Company’s contention that Congress
lacked power to authorize the Legislative Assembly to en
act the 1872-1873 Acts flies in the face of the following
Supreme Court decisions:

Welch v. Cook, 97 U. S. 541, 542 (1878) : “ It is not
open to reasonable doubt that Congress had power to
invest, and did invest, the District government with
legislative authority, or that the act of the legislative
assembly of June 26, 1873 [not the 1873 act here in
volved] was within that authority. We shall therefore
consider the question as if that act exempting manu
facturing property from taxation had been passed di
rectly by Congress.”

National Bank v. Shoemaker, 97 U. S. 692, 693
(1878): “ The property upon which the assessment was
laid is in the District of Columbia, though outside the
bounds of the city of Washington. But the legislative
assembly, created by the organic act [of Feb. 21, 1871],
had authority to legislate for the entire District;

Stoutenburgh v. Hennick, 129 U. S. 141, 147 (1889)
(involving an attempt by the Legislative Assembly to
regulate interstate commerce) : “ It is a cardinal prin
ciple of our system of government, that local affairs
shall be managed by local authorities, and general af
fairs by the central authority, and hence, while the rule
is also fundamental that the power to make laws can
not be delegated, the creation of municipalities exercis
ing 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

6 Act of Jan. 26, 1887 (24 Stat. 368, ch. 49) and Act of Feb. 26, 1892 (27
Stat. 394) ; D. 0. Code, 1940 ed., sees. 1-224, 1-226.

7 The Senate passed a Home Eule Bill (S. 1527) during the 81st Congress.
(95 Cong. Eec. 7010-7018.) The Senate Committee on the District of Columbia
of the 82nd Congress has already recommended the enactment of a revised
Home Eule Bill (S. 1976) and its report of August 10, 1951 (S. Kept. 630, 82nd
Cong., 1st sess.) contains a comprehensive analysis upholding the power of
Congress to delegate legislative power to a District Council. Other opinions
that the Home Eule Bill is constitutional are set forth in: Hearings before
Subcomm. on Home Eule and Eeorganization, House Dist. Comm., 80th Cong.,
1st sess., pp. 219-221 (June 30-July 25, 1947); Hearings, IMd., 81st Cong., 1st
sess., pp. 12-17 (Feb. 17, 1949).

grant of the authority to prescribe local regulations,
according to immemorial practice subject of course to
the interposition of the superior in cases of necessity
. . . as the repository of the legislative power of the
United States, Congress in creating the District of Co
lumbia ‘a body corporate for municipal purposes’ could
only authorize it to exercise municipal powers, and this
is all that Congress attempted to do.”

Section 18 of the District Organic Act of 1871 was de
rived from practically identical provisions previously used
by Congress for many years in defining the authority
granted to Territorial legislatures.8 Section 18 provided,
in part, that

“ . . . the legislative power of said District shall ex
tend to all rightful subjects of legislation within said
District, consistent with the Constitution of the United
States and the provisions of this Act . . . ”

The previous Territorial provisions, as codified in Sec
tion 1851, Revised Statutes, provided, in p a rt:

“ The legislative power of every Territory shall extend
to all rightful subjects of legislation not inconsistent
with the Constitution and laws of the United States.”

The Supreme Court of the United States has uniformly up
held the power of Congress to confer such legislative au
thority on the Territories.9

The difference in language between Article I, sec. 8, cl.
17 of the Constitution which confers on Congress the

8 Territorial Organic Acts of: 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 Stat. 277, 279, 285); Colorado (Feb.
28, 1861, 12 Stat. 172, 174) ; Dakota (March 2, 1861, 12 Stat. 239, 241) ; Ari
zona (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 26, 1868, 15
Stat. 178, 180). See Clinton v. Englehrecht, 80 TJ. S. (13 Wall.) 434, 444
(1871).

9 Simms v. Simms, 175 TJ. S. 162, 168 (1899) ; iSinns v. United States, 194
TJ. S. 486, 491 (1904); Miners’ Bank v. Iowa, 53 TJ. S. (12 How.) 1 (1851) ;
Christianson v. King County, 239 TJ. S. 356, 365 (1915) ; Cope v. Cope, 137
TJ. S. 682, 684 (1891) ; Walker v. New Mexico # Southern Pacific JR. Co., 165
TJ. S. 593 (1897) ; Maynard v. Mill, 125 TJ. S. 190, 204 (1888) ; Of. Keller v.
Pctomao Electric Co., 261 TJ. S. 428 (1923).

“ Power . . . to exercise exclusive legislation in all Cases
whatsoever, over such District, ’ ’ and Article IV, see. 3, cl. 2
of the Constitution which confers on Congress the “ Power
to . . . make all needful Rules and Regulations respecting
the Territory . . . has no hearing on whether Congress
could constitutionally vest the Legislative Assembly with
power over all “ rightful subjects of legislation.” The
word “ exclusive” in Article I imports no more or less than
the word “ all” in Article III, namely, that the ultimate
power over the District, as over Territories, is in Congress,
rather than in the President or judiciary or in any other
government. Neither word precludes Congress from creat
ing legislative bodies for the District or the Territories
whose enactments always remain subject to Congressional
modification. Roach v. Van Riswick, MacArthur & Mackey
(11 D. C.) 171, 174 (1880).

The validity and scope of the legislative power conferred
on Territories has a direct bearing on the validity and scope
of the power granted to the Legislative Assembly. The
Congressional debates on the bill which became the Organic
Act of 1871 demonstrate that Congress intended to create
a “ territorial” government for the District in the pattern;
of the other Territorial governments. 43 Cong. Globe 642,
643, 644, 686, 687, 1363 (1871). Both the Supreme Court
of the United States and this Court have viewed it as a
“ Territorial government.’’ Eckloff v. District of Colum
bia, 135 U. S. 240, 241 (1890); District of Columbia v. Hut
ton, 143 U. S. 18, 20 (1892); Roth v. District of Columbia,
16 App. D. C. 323, 330 (1900). Indeed, as Justice Mac
Arthur said in Grant v. Cooke, 7 D. C. 165 (1871), a few
months after the Legislative Assembly was established:

(At p. 194) “ There can be no doubt that the act
[the Organic Act of 1871] was formed after the model
of the existing territorial governments, and is analo
gous to them in its general provisions. The slightest
inspection will show not only a similarity in the kinds
of powers conferred, but in the terms and phraseology
employed by Congress to convey their intention . . .
If we find in the statutes respecting the territorial gov
ernments the same terms and powers as in that organ
izing a government ‘for all that part of the territory of

the United States included within the District of Co
lumbia, ’ it follows as a legal and necessary result that
similar powers of Government were conferred in both
cases.”

(At pp. 200-201) . . the government of this Dis
trict stands upon the same footing as that of any of the
States or Territories within the limit of the law from
which it derives existence.”

Even Justice Wylie, dissenting, admitted at p. 206:
“ It is quite certain that the powers conferred upon

it [District government] are more extensive and dis
cretionary than are usually granted to municipal cor
porations^ and in many respects are such as Congress
has been in the habit of granting to the governments
created for its several Territories.”

The wide scope of power over “ rightful subjects of legis
lation” is demonstrated by the breadth of the territorial
acts upheld by the Supreme Court.10

Indeed, the Supreme Court, referring to a Territory’s
power over “ rightful subjects of legislation,” has stated
that except as specifically limited by Congress, “ the local
legislature has been intrusted with the enactment of the
entire system of municipal law.” HornbucMe v. Toombs,
85 U. S. (18 Wall.) 648, 655 (1874). Such power, subject
to express limitation by Congress, is “ as plenary as that
of the legislature of a State.” Cope v. Cope, 137 U. S. 682,
684 (1891). See also Puerto Rico v. Shell Co., 302 U. S.
253, 262 (1937).

10 See HornbucMe v. Toombs, 85 IT. S. (18 Wall.) 648 (1874) (procedural
code limiting forms of action to one) ; Atchison, T. # S. F. By. v. Somers, 213
U. S. 55 (1909) (statute regulating right to recover damages for personal
injuries) ; Maynard v. Hill, 125 U. S. 190 (1888) (private act granting di
vorce) ; Richards v. Bellingham Bay Land Co., 54 Fed. 209 (CCA 9, 1893)
(statutes abolishing dower and creating community property instead) ; Chris
tianson v. King County, 239 U. S. 356 (1915) (act escheating property on
death of owner without heirs) ; Cope v. Cope, 137 IT. S. 682 (1891) (statute
permitting illegitimate children to inherit from their father) ; Puerto Rico v.
Shell Co., 302 IT. S. 253 (1937) (anti-trust statute similar to Sherman Act) ;
People of Puerto Bieo v. American R. B. Co., 254 Fed. 369 (CCA 1, 1918),
cert, den., 249 IJ. S. 600 (1918) (act regulating freight rates of local rail
road). The District’s Legislative Assembly could not have enacted some of
the territorial statutes upheld in these decisions, but only because it was spe
cifically precluded by the 1871 Organic Act from enacting laws on certain
subjects, such as divorce, court procedure, and the law of descent. 16 Stat. 419,
423. These express limitations demonstrate, under the familiar rule of ex-
pressio unius est exclusio alterius, that other limitations were not intended.

It is therefore pertinent that several Territories, acting1
under grants which authorize legislation over “ rightful
subjects of legislation”11 or which do not “ differ in sub
stance,”12 have enacted laws prohibiting racial discrimina
tion by restaurants. Alaska: Gen. Laws, 1945, ch. 2, sec. 1,
p. 36; Compiled Laws, sec. 20-1-3 (1949); Puerto Rico:
Laws, 1943, Act No. 131, pp. 404, 406; Virgin Islands: Act
of Sept. 12, 1950, Bill No. 1, 15th Legislative Assembly of
Virgin Islands, 1st Sess., 1950. And the Supreme Court of
Puerto Eico, in upholding a conviction under the Puerto
Rico statute for denying Negroes entrance to a nightclub,
ruled that the Territorial police power was broad enough
to authorize such a statute. People of Puerto Rico v.
Suazo, 63 Puerto Eico Rep. 869 (1944).

It is pertinent, also, that State statutes prohibiting racial
discrimination in places of public accommodation have uni
formly been upheld as constitutional exercises of police
power. See eases summarized in Note, 49 A. L. E. 505
(1927).

That such legislation is indubitably valid is evident from
the following three decisions by the Supreme Court:

(1) . Western Turf Association v. Greenberg, 204 U. S.
359 (1907) held that a State statute prohibiting owners of
places of public accommodation from denying admittance to
persons who had purchased tickets thereto and were not
drunk, boisterous or immoral, “ was a legitimate exertion
of the police power . . . promotive of peace and good or
der.” (pp. 362, 364.)

(2) . Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28
(1948) upheld, the constitutionality of a Michigan statute
penalizing the denial of “ full and equal accommodations,
advantages, facilities and privileges of inns, hotels, restau
rants, eating houses, barber shops, . . . ” etc. on account
of race, creed or color. (Emphasis supplied.) Although

11 Act of Aug. 24, 1912 (37 Stat. 512, 514, 48 U. S. C., 1946 ed., sec. 77)
(Alaska).

12 Puerto Mco v. Shell Co., 302 IT. S. 253, 260 (1937) (Puerto Eico Organic
Act provides that “ The legislative authority shall extend to all matters of
legislative character not locally inapplicable . . . ” Act of March 2, 1917
(39 Stat. 951, 964, 48 IT. S. C., 1946 ed., see. 821)). The Virgin Islands Or
ganic Act provides that “ the legislative power of the Virgin Islands shall ex
tend to all subjects of local application . . . ” Act of June 22, 1936 (49 Stat.
1807, 1811, 48 U. S. C., 1946 ed., sec. 1405r).

the precise issue was whether the application of this stat
ute to a boat traveling from Detroit, Michigan to Bois
Blanc Island in Canada violated the Commerce clause of
the Constitution, the Supreme Court noted that the com
pany’s argument against the statute on the basis of the
14th Amendment had been “ necessarily rejected” by the
Michigan Supreme Court. (333 U. S. at p. 34). Justices
Douglas and Black, concurring, stated flatly (at p. 41) that
“ the police power of a State under our constitutional sys
tem is adequate for the protection of the civil rights of its
citizens against discrimination by reason of race or color.
Railway Mail Assn. v. Cor si, 326 U. S. 88.” Moreover, al
though Justice Jackson and Chief Justice Vinson dissented
from the Court’s holding that the Commerce clause had
not been violated, they agreed that the statute “ undoubt
edly is valid when applied to Michigan intrastate com
merce.” (333 U. S. at p. 43).

(3). Railway Mail Assn. v. Cor si, 326 U. S. 88 (1945) up
held a New York statute forbidding labor unions from bar
ring anyone from membership in the union on account of
race or color. The Railway union’s challenge that the stat
ute was an unconstitutional exercise of the police power,
violating the Due Process and Equal Protection clauses of
the 14th Amendment, was rejected as follows (326 U. S. at
pp. 93-94):

“ A judicial determination that such legislation vio
lated the Fourteenth Amendment would be a distortion
of the policy manifested in that amendment which was
adopted to prevent state legislation designed to per
petuate discrimination on the basis of race or color.
We see no constitutional basis for the contention that a
state cannot protect workers from exclusion solely on
the basis of race, color or creed by an organization,
functioning under the protection of the state, which
holds itself out to represent the general business needs
of employees.”

And Justice Frankfurter, concurring, noted (at p. 98) that
“ a State may choose to put its authority behind one of the
cherished aims of American feeling by forbidding indul
gence in racial or religious prejudice to another’s hurt.”

There is no merit in the Thompson Company’s sugges
tion that legislation prohibiting racial discrimination in
public accommodations is not a “ municipal regulation”
(which it admits could have been enacted by the Legisla
tive Assembly), but rather is “ general legislation” and, as
such, beyond the power of a municipality. First, whatever
validity such a distinction may have with respect to a muni
cipality in a State, it has none in the District of Columbia.
In a State, general legislation is that having state-wide ap
plication ; municipal legislation usually has only local effect.
The District of Columbia, however, is constitutionally like a
Territory rather than a subdivision of a State. Its powers
and city boundaries are co-extensive with its geographical
area. Since all legislation in the District affects the entire
District, it is purposeless (except possibly as to legislation
operating beyond the District) to subdivide it into “ munici
pal” and “ general.”

Secondly, even if the Legislative Assembly’s powers were
no broader than those of a municipality within a State, its
authority was sufficient to adopt the 1872-1873 Acts. The
police power of a municipality “ is one of the least limitable
of governmental powers, and in its operation often cuts
down property rights.” Queenside Hills Realty Co. v.
Scud, 328 U. S. 801, 83 (1946). Restaurants and similar
places of public accommodation have long been subject to
municipal regulation. See acts cited in footnote 5, supra;
Cooper v. District of Columbia, MacArthur & Mackey (11
D. 0.) 250, 260 (1880); Roach v. Van Riswick, MacArthur &
Mackey (11 D. C.) 171, 178 (1880); Prawdzih v. City of
Grand Rapids, 313 Mich. 376, 21 N. W. (2d) 168 (1946).
Indeed, a municipality has power even to exclude restau
rants and stores from designated areas of the city. Village
of Euclid v. Ambler Realty Co., 272 U. S. 365, 390 (1926) ;
Lewis v. District of Columbia, — App. D. C. —, 190 F. (2d)
25 (1951). Moreover, municipal ordinances requiring
places of public accommodation to serve all persons without
discrimination have been upheld, even by courts in States
traditionally hostile to non-discrimination. E.g., Schoen
Bros. v. Pylant, 162 Ga. 565,134 S. E. 304 (1926) (ordinance
of Atlanta, Georgia, requiring licensed slaughterhouses to

serve “ the public without discrimination” ). Similarly,
courts have upheld municipal ordinances prohibiting places
of public accommodation from serving certain classes of
persons in order to protect such persons or the community
generally. E.g., Gundling v. Chicago, 176 111. 340', 52 N. E.
44 (1898), allVI. 177 U. S. 183 (1900) (prohibiting sale of
cigarettes to minors); Cronin v. Adams, 192 U. S. 108
(1904), ibid., 29 Colo. 488, 69 Pac. 590 (1902) (prohibiting
taverns from serving women); Ex parte Meyers, 7 Calif.
App. 528, 94 Pac. 870 (1908) (prohibiting pool halls and
gambling houses from serving minors); Bungalow Amuse
ment Co. v. City of Seattle, 148 Wash. 485, 269 Pac. 1043
(1928) (prohibiting dancehalls from admitting immoral
persons).

The Thompson Company’s “ general legislation” argu
ment was, indeed, rejected by both the trial court and the
Municipal Court of Appeals (Thompson App. 10-11, 28-
30, 46-47). And the Thompson Company suggests no other
reason to support its contention that ordinances forbidding
racial discrimination in restaurants are something special
and beyond the scope of municipal authority. The fact is
that every consideration underlying the need for regulation
of local affairs by local authorities demonstrates that the
prohibition of such discrimination is particularly appropri
ate for municipal supervision and control. Hence, many
municipalities have already adopted ordinances prohibiting
racial discrimination. See W. Brooke Graves, Fair Em
ployment Practices Legislation in the United States, Fed
eral-State-Municipal, Public Affairs Bulletin 93 (April
1951), pp. 87-106, 201-214 (Library of Congress Legis. Ref.
Serv.). It is pertinent, also, that in the converse situation
where municipal ordinances have required racial segrega
tion, courts unimpressed by constitutional challenges have
generally upheld the municipality’s power to make legisla
tive judgments in racial matters. See Patterson v. Taylor,
51 Fla. 275, 40 So. 493, 495 (1906); Crooms v. Schad, 51
Fla. 168, 40 So. 497 (1906); Hopkins v. City of Richmond,
117 Ya. 629, 86 So. 139 (1915); State v. Gurry, 121 Md. 534,
88 Atl. 546 (1913); Mayo v. James, 53 Va. (12 Gratt.) 17

(1855). To suggest that a city may require racial discrim
ination but may not prevent racial discrimination, is indeed
to subordinate law to racism.13

Ordinances dealing with service of food and beverages
to colored persons have been in force in the District of Co
lumbia almost from its founding. Thus, ante-bellum ordi
nances restricted the right of places of public accommoda
tion to sell liquor to slaves or other colored persons. Act
of Dec. 15,1810, Ninth Council, Laws, Corporation of Wash
ington, p. 29; Act of June 3, 1853, 50th Council, Sheahan,
Corporation Laws of Washington, Charters and General
Laws to 1865, p. 81. After the Civil War, but before the
Legislative Assembly was created, the Corporation of
Washington adopted ordinances prohibiting racial discrim
ination by various places of public accommodation, includ
ing restaurants. Act of June 10, 1869, 66th Council, Laws,

13 Judge Hood, dissenting below, postulated that “ civil rights legislation’’
is legislation of “ a higher plane or dignity” than a municipality can enact.
He did not define “ civil rights legislation,” nor give any reason for placing
“ civil rights legislation” outside the competence of a municipality. Even if
it is assumed that Judge Hood meant to refer only to legislation like the Fed
eral or State civil rights acts governing racial discrimination, rather than leg
islation on such civil rights as appertain to every person by virtue of his
citizenship in a State or community (see “ Civil Eights” in Black’s Law Dic
tionary (4th ed. 1951), p. 1487; and 7 Words and Phrases (Perm. ed. 1940),
p. 338), his proposition deviates from accepted notions as to the scope of mu
nicipal power. For example, a person in the custody of the police is protected
by the Federal Civil Eights Act from brutality by the police. Williams v.
United States, 341 U. S. 97 (1951); Screws v. United States, 325 U. S. 91
(1945); Lynch v. United States, 189 F. (2d) 476 (CA 5, 1951). Certainly,
a municipality has power to enact ordinances regulating the duties of its police
officers and prohibiting their participation in brutality toward prisoners or
those under arrest. Yet such an ordinance would clearly operate to protect
the “ civil rights” of such persons.

The decision in Nance v. Mayflower Tavern, Inc., 106 Utah 517, 150 P. (2d)
773 (1944), cited by Judge Hood, does not necessarily support the proposition
that a municipality may not legislate against racial discrimination by places
of public accommodation. (1) That case involved the following ordinance:

‘ ‘ The door or doors of every restaurant shall be and remain unlocked and
unfastened during all the time any person or persons, including the keeper,
or any employee is therein, and during such time no orderly persons shall
be refused admission thereto.”

The Nan-ce opinion does not indicate that the plaintiff was refused admission
simply because of his race while other persons were admitted, or for other rea
sons, or at a time when no other persons were being admitted. The invalida
tion of the ordinance could reflect simply a judgment that the ordinance un
duly restricted the Tavern’s right, e.g., to close the restaurant temporarily for
repairs. (2) The Utah court held only that the ordinance was not within thg
limited authority actually delegated to the municipality, not that such authority
could not be delegated. (3) I f the Nance opinion were a holding that the
power to prevent racial discrimination by places of public accommodation could
not be delegated to a municipality, we think it was wrongly decided.

Corporation of Washington, p. 22; Act of March 7, 1870,
67th Council, Laws, Corporation of Washington, p. 22. And
the 1871 Organic Act specifically provided that those ordi
nances ‘4 shall remain in full force and effect until modified
or repealed by Congress or the legislative assembly of said
District” (16 Stat. 419, 428, sec. 40). Thus, even before the
1872-1873 Acts, service to Negroes in places of public ac
commodation had been regulated by municipal ordinance
for more than 60 years, and had been approved by
Congress.

II. THE 1872-1873 ACTS HAVE NOT BEEN REPEALED.
A. The 1872 Act was not repealed by the 1873 Act. Both

Acts admittedly forbid racial discrimination by the desig
nated places of public accommodation. The 1872 Act covers
eating places, hotels, barbershops, and bath houses. The
1873 Act applies to eating places only. There is no indi
cation, either in the 1873 Act or in its legislative history,14
that the 1873 Act was intended to supersede the 1872 Act in
its entirety. Section 5 of the 1873 Act states simply that
“ all acts and parts of acts inconsistent herewith are hereby
repealed. ’ ’ Only inconsistent acts or parts of acts were re
pealed. But there is no inconsistency whatever between the
1873 Act as applied to eating places, and the 1872 Act as ap
plied to hotels, barbershops and bath houses. There is only
a partial overlapping, i.e., with respect to eating places.
At most, therefore, the only possible implication of “ in
consistency” between the two Acts is with respect to eating
places. Such “ inconsistency” does not justify the complete
invalidation of the 1872 Act. As Chief Judge Cayton said:
‘ ‘ There is no reason why the two laws cannot exist side by
side without conflict.” (81 Atl. 2d at 255-256; Thompson
App. 35). Even Judge Clagett’s view that the 1872 Act
was repealed by the 1873 Act was qualified by the phrase:
“ so far as restaurants are concerned” (81 Atl. 2d at 262;
Thompson App. 48).

14 The history of these Acts (see P art IIIA of this Brief) indicates that
their basic objective was to prevent racial discrimination in places of public
accommodation and that the provisions requiring public posting of prices were
simply aids to prevent evasion of that objective.

Although this case involves only a restaurant, the action
of the coni’t below in affirming the trial court as to Count 1
of the information xnay conceivably give rise to an implica
tion that the 1873 Act wholly superseded the 1872 Act. It
is therefore respectfxxlly suggested that this Court specifi
cally indicate in its opinion that the 1872 Act was not super
seded by the 1873 Act, at least as to hotels, barbershops,
and bath houses.

B. The change of Government effected in 1874 and 1878
did not repeal the 1872 and 1873 Acts. On Juixe' 20, 1874,
Congress abolished the Legislative Assembly and substi
tuted a temporary government composed of three ap
pointed Commissioners. Act of June 20, 1874 (18 Stat.,
part 3, p. 116). This Act recognized the continued existence
of the Legislative Assembly acts. Moreover, the courts
continued to enforce them [United States v. May, 2 Mac-
Arthur (9 I). C.) 512 (1876)], and also held that the Com
missioners had no authority to repeal prior ordinances
enacted by the local legislative body. Dennison v. Gavin,
3 MacArthur (10 I). C.) 265 (1877).

The Act of June 22, 1874 (18 Stat,, part 2), which en
acted the Revised Statutes for the District of Columbia as
positive law, repealed all acts of Congress enacted prior
to December 1, 1873, any portion of which was included in
this revision, but, clearly did not repeal the acts of the
Legislative Assembly. Rev. Stat, D. C., secs. 16-68, 91 and
1296; 18 Stat., part 2, pp. 3-7, 9 and 149.

The Commissioner form of government was continued on
a “ permanent” basis by the Organic Act of Jxxne 11, 1878
(20 Stat. 102). It was on the basis of this act that the trial
court held that “ the Acts of 1872 and 1873 as such, although
not directly repealed, have both been repealed by implica
tion” (Thompson App. 12). The trial court thus sqxxarely
held (1) that there has never been an express repeal of the
1872 and 1873 Acts, and (2) that the 1878 Act impliedly
repealed all acts enacted prior to 1878,15 including the 1872-

15 The trial court said that the 1878 Act provided " f o r legislative substi
tution for all previous legislation enacted dealing with the same subject mat
te r " (Thompson App. 11-12) and " b y implication repealed the earlier acts
of the Legislative Assembly” (Thompson App. 13); and that the saving

1873 Acts. The Municipal Court of Appeals agreed with,
the first holding and disagreed with the second.

The contention that the 1878 Organic Act repealed all
Acts of the Legislative Assembly is inconsistent with many
decisions (summarized in Appendix D at the end of this
Brief) involving acts of the Legislative Assembly after
1878, as well as with the 1878 Act itself. That Act provided
“ a permanent form of government for the District of Co
lumbia,” and abolished several independent Boards (secs.
6, 8). The Act plainly indicates that it affected only the
form and administration of the District Government and
related matters expressly stated in the Act, such as taxa
tion, contracts for repairs of streets, administration of the
Metropolitan Police and the schools, appointment of gov
ernmental employees, municipal indebtedness, etc. Pre
existing law was specifically continued by section 1 of the
1878 Act, as follows:

“ Said District and the property and persons that
may be therein shall be subject to the following provi
sions for the government of the same, and also to any
existing laws applicable thereto not hereby repealed or
inconsistent with the provisions of this act . . . and all
laws now in force relating to the District of Columbia
not inconsistent with the provisions of this act shall
remain in full force and effect.” (20 Stat. 102-103.)
(Emphasis supplied.)

Under this provision, all prior legislative acts not ex
pressly repealed, including the acts of the legislative As-

clauses of see. 1636 of the 1901 Code “ are no more than a nullity” because
“ there were no acts or parts of acts of the Legislative Assembly in force and
effect on the date of the passage of the 1901 A ct” (Thompson App. 16). The
holding of “ repeal by implication” of course disregards the axioms that (1 )
there is no such repeal except where a subsequent statute is irreconcilable
with the earlier statute, and (2) “ if effect can reasonably be given to both
statutes, the presumption is that the earlier is intended to remain in force.”
United States v. Burroughs, 289 IT. S. 159, 164 (1933) ; Washington v. Miller,
235 U. 8. 422, 428 (1914) ; Graham and Foster v. Goodcell, 282 XT. S. 409, 425
(1931); United States v. Borden Go., 308 IT. 8. 188, 198 (1939). The ruling
that see. 1636 was a “ nullity” of course disregards the “ cardinal rule” of
construction that “ all words of a statute are to be taken into account” and
interpreted, unless there is no alternative, in a manner which gives them
meaning, rather than in a manner which deprives them of meaning. United
States v. Powers, 307 TJ. 8. 214, 217 (1939) ; T). Ginshwrg # Sons, Inc., v.
Popldn, 285 IT. 8. 204, 208 (1932); McDonald v. Thompson, 305 IT. S. 263, 266
(1938); Bird v. United States, 187 IT. S. 118, 124. (1902).

sembly, remained “ in full force and effect” , unless they
were “ inconsistent with” the 1878 Act.16

As the trial court held, the 1878 Act did not expressly
repeal the 1872-1873 Acts. It is equally true that the 1878
Act contains no provision inconsistent with the 1872-1873'
Acts, or even touching upon the subject of racial discrimi
nation, or of service to the public in places of public accom
modation, or of restaurants, or of any other type of public
accommodation or requirement included in the 1872-1873
Acts.17 Hence, the 1878 Act did not repeal the 1872-1873
Acts, either by “ implication” or in any other way, but
simply continued them “ in full force and effect” .

Moreover, subsequent enactments by Congress,18 and
every authorized codification and index of District statu
tory law since 1878 has recognized the continued validity
of acts of the Legislative Assembly. And some of these

16 The continuity which the 1878 Act maintained with pre-existing law is
emphasized by secs. 2 and 3 which authorized the new Board of Commissioners
to exercise the authorty “ now vested” in the Commissioners “ except as are
hereinafter limited or provided” ; subjected them to the restrictions “ now
imposed upon said Commissioners ’ ’; and transferred to them all powers and
property “ now vested by law” in the previous Commissioners. Section 2 also
required each Commissioner to give bond with surety “ as is required by ex
isting law ’ ’, and prescribed that tax proceedings should be done as ‘ ‘ now
provided by law, except insofar as is otherwise provided by this act. ’ ’ Section
6 provided for appointment of new school trustees with powers and duties as
“ are now authorized by law.” Section 12 required the Commissioners to sub
mit to Congress a draft of “ additional laws or amendments to existing laws
as in their opinion are necessary. ’ ’ The Congressional intention to continue
pre-existing laws is further demonstrated by the debates on the 1878 Act,
summarized in Appendix E a.t the end of this Brief.

17 The 1878 Act does mention two types of public accommodation, neither
of which are mentioned in the 1872-1873 Acts. Section 3 expressly authorized
the Commissioners to change the location of hack stands, and section 5 re
quired “ street railway companies” to bear certain expenses for pavements,
sewers, etc. The very fact that these two facilities of public accommodation
are mentioned, while other public facilities are not, indicates: (1) Congress
knew how to draft a statute to affect a facility of public accommodation where
it wanted to do so; and (2) the 1878 Aet was not legislation on restaurants
and other facilities mentioned in the 1872-1873 Acts, but not mentioned in
the 1878 Aet.

18 Act of June 19, 1878 (20 Stat. 166) ; Act of January 26, 1887 (24 Stat.
368, ch. 48) (amending acts of Legislative Assembly which Supreme Court
later described as ‘ ‘ separably operative and such as were within the scope of
municipal action.” Stoutertburgh v. Sewraclc, 129 U. S. 141, 149 (1889)) ; Act
of March 3, 1891 (26 Stat. 841, see. 1) (amending act of Legislative Assembly
subsequently enforced in Lasley v. District of Columbia, 14 App. D. C. 407
(1889)); 1901 D. C. Code, see. 1636 (31 Stat. at 1434). See also 1901 D. C.
Code, sec. 43 (31 Stat. at 1196, 1940 D. C. Code, sec. 11-602), and sec. 1640
(31 Stat. at 1436); and Act of March 2, 1911 (36 Stat. 966), referring to
“ municipal ordinances” and “ laws of former municipal governments in the
District which are still in force.” See also H. Kept. 3491, 51st Cong., 2d sess.
(Jan. 17, 1891).

compilations have specifically set forth or referred to the
3872-1873 laws. These authorized compilations were Abert
& Lovejoy’s compilation,19 the 1901 D. C. Code,20 Meyers’
Comprehensive General Index,21 the 1929 D. C. Code, and
the 1940 D. C. Code.

The omission of the 1872-1873 Acts from the 1929 and
1940 editions of the D. C. Code was probably due, in part,
to the fact that the 1901 D. C. Code did not set forth the
full text of the acts of the Legislative Assembly and the
statutes of Maryland and of England, but continued them
in force by reference in the saving provisions of secs. 1636
and 1640 of the 1901 Code. See Part II C of this Brief.
Such omission has no legal relevance since the matters set
forth in the 1929 and 1940 Codes constitute only “prima
facie the laws . . . in force in the District . . . ’122

is The Act of March 2, 1889 (25 Stat. 872) authorized the Supreme Court
of the District of Columbia to appoint two commissioners to compile “ all
statutes and parts of statutes in force in the said District’’, the compilation
to be approved by the court. The court appointed Messrs. Abert & Lovejoy.
Their compilation was approved and 5,000 copies ordered printed on June 2,
1894. I t shows the statutes “ in force’’ as of 1889, includes acts of the
Legislative Assembly, and sets forth the text of the 1872-1873 Acts on pp.
183-185, eh. XVI, secs. 148-154.

20 The 1901 D. C. Code provided that “ all . . . acts and parts of acts of the
Legislative Assembly of the District of Columbia ’ ’ within certain specific cate
gories “ shall remain in force” (see. 1636), and that the repealing clause shall
not “ affect the operation or enforcement . . . of any municipal ordinance or
regulation, except in so far as the same may be inconsistent with, or is re
placed by, some provision of this code” (sec. 1640). The effect of these pro
visions is discussed in Part I I C of this Brief.

21 The Act of March 2, 1911 (36 Stat. 966) appropriated funds for “ the
preparation of an index of the laws of Congress relating to the District of
Columbia, and of the laws of former municipal governments in the District'
which are still in force . . . ” (Emphasis supplied.) Pursuant to this statute,
the District Commissoners appointed William F. Meyers to make such an
index. His “ Comprehensive General Index of the Laws of the District of
Columbia in force January 1, 1912” referred to several acts of the Legislative
Assembly and also contained the following references to the 1872-1873 Acts in
Abert & Lovejoy’s compilation:

‘ ‘ Color L in*—
* * *

guests of eating and other places, Comp. Stat., 183, sec. 150.”
“ Colored P eople—

* * *

rights of in restaurants, L. A., 399, 485; Comp. Stat., 183, sec. 150. ’ ’
‘ ‘ D iscrimination—

between guests, etc., on account of color, Comp. Stat., 184, sec. 150. ’ ’
I t reflected an understanding that the 1872-1873 laws were still in effect.

22 Act of May 29, 1928 (45 Stat. 1007), as amended Mar. 2, 1929 (45 Stat.
1540 1541: 1 tl. S. C., 1946 ed., see. 54b; 1940 D. C. Code, see. 49-102), re
placed by Act of July 30, 1947 (61 Stat. 633, 638; 1 IT. S. C., 1946 ed. Supp.
I l l , sec. 204(b)).

Nevertheless, the 1929 and 1940 D. C. Codes also refute
the theory that the 1878 Act repealed all laws of the Legis
lative Assembly. The Parallel Reference Tables in both of
these Codes indicate that at least 30 Code sections incor
porate provisions of Legislative Assembly acts, and that
some 130 Code sections incorporate provisions of British
and Maryland statutes preserved by secs. 1636 and 1640 of
the 1901 Code. (1929 D. C. Code, pp. 500, 499 ; 1940 D. C.
Code, pp. 1286, 1285).

Thus, the omission of the text of the 1872-1873 laws from
the 1901, 1929, and 1940 Codes is neither legally significant,
nor does it in any way support the theory that the 1878 Act
repealed all acts of the Legislative Assembly.

Neither Echloff v. District of Columbia, 135 U. S. 240
(1890), nor District of Columbia v. Hutton, 143 U. S. 18
(1892), upon which the trial court placed the whole stress
of its opinion, supports its “ conclusion of repeal by impli
cation” (Thompson App. 14).

(a) The Echloff case. Echloff was in 1883 removed by
the District Commissioners from the police force without
charges, notice, or hearing. He challenged the validity of
his removal by suing for subsequent salary, relying on Rev.
Stats. D . C. , sec. 355, 18 Stat., part 2, p. 42, which provided
that no police officer be removed except upon written
charges and opportunity to be heard. The Commissioners
relied on the 1878 Organic Act which abolished the Board
of Metropolitan Police, placed the police force under the
Commissioners (sec. 6), and empowered them “ to . . .
reduce the number of employees, remove from office, and
make appointments to any office under them” (sec. 3).

The Supreme Court specifically stated (135 U. S., at 240):
“ The single question presented by the record is, as to the
power of the commissioners to remove a police officer with
out charges, notice or hearing.” The Court upheld the
Commissioners’ action, ruling that see. 3 of the 1878 Act
had granted them “ a general power to remove” which
“ carries with it the right to remove at any time or in any
manner deemed best, with or without notice” (135 IT. S. at
241) and thus in effect repealed the earlier statute. This

holding obviously was sound. Both statutes involved the
removal of government employees and the administration
of the government establishment. The 1878 provision gov
erning removal of all District employees, including the
police, directly conflicted with the earlier provision gov
erning removal of police and necessarily superseded it.

(b) The Hutton case. Hutton was appointed to and
served on the police force for about 2x/2 months but the
District refused to pay his salary on the ground that
because he lacked previously military service, as required
by sec. 354, Bev. Stat. D. C,, he had not been legally ap
pointed. Hutton then sued for his salary. The Supreme
Court stated (143 U. S. at 19): “ The single question in the
case is, whether sec. 354 . . . prescribing the qualifications
of persons eligible for appointment on the police force,
was repealed by the act of June 11, 1878,” and ruled that
sec. 354 was so repealed.28 The Court expressly refrained
from passing on any other question.24

Neither Ecldoff nor Hutton involved a conflict between
the 1878 Act and a Legislative Assembly Act; instead, they
both involved a direct and inescapable conflict between the
1878 Act and earlier acts of Congress governing the ap
pointment and removal of police. Both cases related solely
to the administration of the government establishment, a
subject particularly covered by the 1878 Organic Act in
providing a “ permanent form of government” for the

23 The Court said (143 IT. S. at 25-26): “ . . . the whole tenor of the act
shows that it was intended to supersede previous laws relating to the same
subject matter, and to provide a system of government for the District com
plete in itself, in all respects. The language of the sixth section of the aet of
1878, that the commissioners ‘shall have authority to employ such officers and
agents, and to adopt such provisions as may be necessary to earry into execu
tion the powers and duties devolved upon them by this act,’ clearly implies,
we think, that, in the employment of officers over whom they are given control,
they may select such persons, under appropriate regulations, as they may
deem suitable and competent for the discharge of the duties pertaining to
such offices, without regard to their possessing the qualifications prescribed by
said sec. 354.” (Emphasis by Supreme Court.)

24 The Court said (at p. 28): “ I t is further argued that if said sec. 354
be considered repealed by the act of 1878, then certain other named sections
of the Bevised Statutes relating to the District of Columbia must also be held
to be repealed, and that certain evil consequences will flow from such ruling
with respect to those specified sections. That, however, is a consideration not
properly involved in this case. Whether those specified sections or any others
of said Bevised Statutes were repealed by the act of 1878 we do not now decide.
Our decision and judgment has reference solely to section 354. I t will be
time enough to consider other questions when they are properly before us. ’ ’

District. In this case, however, there is no conflict between
the 1878 Act and the 1872-1873 Acts. Moreover, the 1872-
1873 Acts do not relate to the administration of the gov
ernment establishment, but only to the conduct of keepers
of restaurants, hotels, bar-rooms, etc., none of which are
dealt with in the 1878 Act. Clearly, Eckloff and Hutton are
irrelevant here.

C. The 1872 and 1873 Acts were saved from repeal (and
were in effect re-enacted) by Sections 1638 and 1640 of the
1901 D. 0. Code. This is conclusively demonstrated by this
Court’s decision in Johnson v. District of Columbia, 30 App.
D. C. 520, 36 Wash. L. Sep. 173 (1908). The Act of March
3, 1901 (31 Stat. 1189) enacted the 1901 D. C. Code as
positive law effective January 1, 1902. Sec. 1636 (31 Stat.
at p. 1434) repealed:

“ All acts and parts of acts of the general assembly
of the State of Maryland general and permanent in
their nature, all like acts and parts of acts of the legis
lative assembly of the District of Columbia, and all like
acts and parts of acts of Congress applying solely to
the District of Columbia in force in said District on
the day of the passage of this Act . . . except . . . ”
(Emphasis supplied.)

At this point sec. 1636 contained eight paragraphs listing
acts and categories of acts which were saved from repeal.25
The congressional intention was repeated as follows at the
end of sec. 1636:

“ All acts and parts of acts included in the foregoing
exceptions, or any of them, shall remain, in force ex
cept in so far as the same are inconsistent with or are
replaced by the provisions of this code.” (Emphasis
supplied.)

To make its intention crystal clear, Congress reiterated
its purpose as follows:

“ Sec. 1640. Nothing in the repealing clause of this
code contained shall be held to affect the operation or

25 A ninth exception, not here relevant, was added by the Act of June 30,
1902 (32 Stat. 520, 546).

enforcement in the District of Columbia of the common
law or of any British statute in force in Maryland on
the twenty-seventh day of February, eighteen hundred
and one, or of the principles of equity or admiralty, or
of any general statute of the United States not locally
inapplicable in the District of Columbia or by its terms
applicable to the District of Columbia and to other
places under the jurisdiction of the United States, 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.” (Emphasis supplied.)

These provisions clearly saved the 1872-1873 Acts from
repeal, even though the text of the acts was not included
in the 1901 Code,26 provided the Acts meet two conditions:
(1) that they are not inconsistent with, or replaced by, some
provision of the 1901 Code, and (2) that they come within
any of the eight exception paragraphs in sec. 1636. Fur
thermore, if these conditions are met, the provision that
the saved Acts “ shall remain in force” constitutes the
equivalent of a Congressional re-enactment of the Acts.

Since no provision in the 1901 Code was inconsistent with,
or replaced, the 1872-1873 Acts, the Acts plainly comply
with the first condition.

We now turn to the question whether the 1872-1873 Acts
were within any of the eight exception paragraphs of sec.
1636. The relevant exceptions are:

“ Third. Acts and parts of acts relating to the organ
ization of the District Government, or to its obliga
tions, or the powers or duties of the Commissioners
of the District of Columbia, or their subordinates or
employees, or to police regulations, and generally all
acts and parts of acts relating to municipal affairs only,

26 A remarkably similar issue came before the Supreme Court in Cape Girar
deau County Court v. Sill, 118 IJ. S. 68, 72 (1886). The question was whether
a certain Act of 1871 of Missouri was still in effect. The respondent argued
that the 1871 Act was repealed by the failure of the legislature to incorporate
it in the Missouri Kevised Statutes of 1879. Section 3161 (1879 Mo. Kev.
Stats.) provided that “ all acts or parts of acts of a general nature, in force
at the commencement of the present session of the General Assembly, and not
repealed, shall be, and the same are hereby, continued in full force and effect,
unless the same be repugnant to the acts passed or revised at the present
session.” The Supreme Court ruled (at p. 72) : “ I t is not claimed that the
Act of 1871 was repugnant to any act passed at the session of 1879, when
the revision was set on foot; and as it had not then been ‘expressly repealed,’ it
results that it has been continued in full force.”

including those regulating the charges of public-service
corporations.” (Emphasis supplied.)

* # # # * # * # * #
“ Fifth. All penal statutes authorizing punishment

by fine only or by imprisonment not exceeding one year,
or both.” (31 Stat. at p. 1435)

It is our contention that the 1872-1873 Acts fall within
three categories of these exception paragraphs and are
therefore now in force:

(1) they were “ acts relating to police regulations” ;
(2) they were “ acts relating to municipal affairs

only” ;
(3) they were “ penal statutes authorizing punishment

by fine only.”

(1) “Acts relating to police regulations.” Long before
1901, the words “ police” “ police power” and “ police reg
ulations” had become the common way of describing the
application of governmental laws and regulations to
require persons “ to conform their general behaviour to
the rules of propriety, good neighbourhood, and good man
ners ; and to be decent ... it comprises all such crimes as
especially affect public society ...,” including legislation
prohibiting racial discrimination in places of public accom
modation.27

But we need not rely on this general usage alone. Our
contention is completely upheld by this Court’s unanimous
decision in Johnson v. District of Columbia, 30 App. D. C.
520, 36 Wash. L. Rep. 173 (1908). That decision upheld

27 Blaekstone, Commentaries on the Laws of England, Book IV, eh. 13, p.
*162 (Cooley’s ed., 1876); Cooley, Treatise on Constitutional Limitations,’ah.
XVI, pp. 829, 869 (7th ed., Lane, 1903) ; Freund, The Police Power, see. 2,
p. 2; secs. 694-695, pp. 715-716 (1904); L ’Eote v. New Orleans, 177 II. S,
587, 599 (1900) ; United States v. Hewitt, 76 U. S. (9 Wall.) 41 (1869) • Peo
ple v. King, 110 N. T. 418, 18 N. E. 245, 247 (1888) ; Donnell v. State, 48
Miss. 661, 12 Am. Bep. 375 (1873); Greeneherg v. Western Turf A ss’n., 140
Calif., 357, 73 Pae. 1050 (1903); and see eases noted in 32 Words and Phrases,
“ Police Kegulations ” , pp. 786-788 (Perm. ed. 1940). I t is relevant to note
that the bill (C. 3) which became the Act of 1872 was referred, in the Legisla
tive Assembly’s House of Delegates, to the “ Committee on Police” . (Jour
nal, House of Delegates, 2nd Annual Sess. 1872, vol. 4, Part II, p. 151) (D. C.
Public Library reference K859Lhj D638).

a conviction under a Legislative Assembly Act of Aug. 23,
1871, for cruelty to a horse in 1907. The penalties pre
scribed by that act were imprisonment not exceeding one
year, or a fine up to $250, or both. Two of this Court’s
rulings on Johnson’s contentions are relevant here:

(1) Johnson argued that the act was not a proper exercise
of municipal power. But this Court held that the sections
of the act

“ are mere police regulations, and, therefore within
the scope of powers delegated to the municipality by
Congress. Stoutenburg v. HermicJc, 129 U. S. 141;
Smith v. Olcott, 19 App. D. C. 61; 29 Wash. L. Rep. 766.
Cruel treatment of helpless animals at once arouses the
sympathy and indignation of every person possessed
of human instincts,—sympathy for the helpless crea
ture abused, and indignation towards the perpetrator
of the act—and in a city, where such treatment would
be witnessed by many, legislation like that in question
is in the interest of peace and order and conduces to
the morals and general welfare of the community . . .
‘The subject is one, preeminently one for local muni
cipal regulation.’ ” (30 App. D. C. at 522).

(2) Johnson’s contention that the act had been repealed
by sec. 1636 of the 1901 Code was rejected by this court as
follows:

“ That section expressly saves from repeal all acts
of the Legislative Assembly of the District of Columbia
relating to ‘police regulations,’ and, as we have already
held that the section upon which these informations
were based is a police regulation, it follows that it was
not repealed by section 1636 of the Code.” (30 App. D.
C. at 523).

The Johnson case thus stands for at least the following
propositions:

(1) Congress had power to, and did, delegate to the
Legislative Assembly legislative authority equivalent to
the police power customarily exercised by a state or muni
cipality (see also Part I of this Brief).

(2) Acts of the Legislative Assembly were in effect after
the enactment of the Organic Act of 1878 (see Part II B of
this Brief, supra).

(3) The exception in sec. 1636 of the 1901 D. C. Code,
expressly saving from repeal all acts of the Legislative
Assembly relating “ to police regulations”, was not limited
solely to regulations concerning policemen. This principle
is further supported by the fact that the exception of
“ police regulations” is differentiated in paragraph Third
from “ acts relating to the organization of the District
Government. . . or the powers and duties of the Commis
sioners . . . or their subordinates or employees.”

(4) The Act punishing cruelty to animals was an exer
cise of the police power and was a “ police regulation” ; and
as such it was (a) a valid exercise of the Legislative As
sembly’s authority and (b) saved from repeal by virtue
of the “ police regulations” exception of the Third para
graph of sec. 1636.28

(5) Any act which was a valid exercise of the Legislative
Assembly’s police power is a police regulation saved under
the Third paragraph of sec. 1636. That they are co-exten-
sive is demonstrated by this Court’s holding that (a) the
act was a valid exercise of the authority of the Legislative
Assembly because it was a “ police regulation . . . in the
interest of peace and order and conduces to the morals and
general welfare of the community” (30 App. D. C. at 522;
36 Wash. L. Rep. at 173-174); and (b) that since it was a
“ police regulation” constituting a valid exercise of such
authority, it was a “ police regulation” saved by paragraph
Third of sec. 1636.

We submit that under these principles the 1872-1873 Acts
are “ police regulations” saved by sees. 1636 and 1640 of the
1901 D. C. Code. The racial discrimination in certain places
of public accommodation, which the 1872-1873 Acts pro-

28 The 1871 act of the Legislative Assembly prohibiting cruelty to animals
(D. C. Code, 1940 ed., sec. 22-801) was recently again enforced by Judge
Neilson of Municipal Court, who imposed 10 days imprisonment and a $25 fine
on a man whose dog died after he bobbed its tail. Washington Evening Star,
p._B-2 (September 1, 1950); District of ColumMa v. Watson, (No. 484 055’
Criminal).

hibited, was and is a matter of deep municipal concern
(see Part III of this Brief). The prohibition of such
racial discrimination was clearly a valid exercise of police
power and one of the “ rightful subjects of legislation with
in said District, consistent with the Constitution of the
United States” on which the 1871 Organic Act authorized
the Legislative Assembly to legislate. (See Part I of this
Brief).

It is important, moreover, to remember the rationale of
the Jolmson case in holding that a statute prohibiting cruel
ty to animals was a police regulation—namely—that cruelty
to animals “ at once arouses the sympathy and indignation
of every person possessed of human instincts,—sympathy
for the helpless creature abused, and indignation towards
the perpetrator of the act—and in a city, where such treat
ment would be witnessed by many, legislation like that in
question is in the interest of peace and order and conduces
to the morals and general welfare of the community.”
This rationale is also applicable here. The racial discrimi
nation publicly perpetrated by the Thompson Company
and other restaurants in the District of Columbia certainly
arouses, in many people, sympathy for the well-behaved
and respectable colored person who is denied food, sym
pathy for groups which (like the American Veterans Com
mittee) have both white and colored members and are de
nied the opportunity to associate with each other in public
places, and indignation against the perpetrator of such
discriminatory mistreatment. If a statute prohibiting
cruelty to animals is a proper police regulation, as held
by this Court in the Johnson case, a statute prohibiting
arbitrary and debasing discrimination against human
beings in places of public accommodation, solely on the
basis of race, is, a fortiori, a proper police regulation. As
such, it was saved by sec. 1636 and is now in full force and
effect.

(2) “Acts relating to municipal affairs only.” We con
tend that the 1872-1873 Acts were saved by virtue of this
exception also. These Acts clearly were “ acts relating
to municipal affairs only.” They relate to local affairs of

general public concern and only to places of public accom
modation within the District; they do not operate outside
the District or impinge on purely private affairs or on
non-municipal affairs, such as interstate commerce, etc.29

The words “ relating to municipal affairs” obviously
were not limited to matters pertaining only to the organi
zation, administration, officers, and procedures of the Dis
trict Government. This is shown, first, by the fact that sec.
1636 expressly states that the words quoted above include
acts “ regulating the charges of public-service corpora
tions.” Moreover, the words “ acts relating to municipal
affairs” are differentiated in paragraph Third of sec. 1636
from “ acts relating to the organization of the District
Government, or to its obligations, or the powers or duties
of the Commissioners . . . or their subordinates or employ
ees.”

The legislative history of the 1901 Code (which is, of
course, relevant, Goggin v. California Labor Div., (1949)
336 U. S. 118, 127-129, fn. 8) demonstrates that Congress
did not intend the 1901 Code to repeal municipal legislation
such as the 1872-1873 Acts.

The 1901 Code was drafted by Judge Walter S. Cox at the
joint request of the Washington Board of Trade and the
District Bar Association. 5 Rep. Wash. Bd. of Tr. 16
(Nov. 1895); 8 Ibid. 22-26 (Nov. 1898). His draft, pub
lished by Mm under the title “ Code of Law for the District
of Columbia” (Thos. W. Cadick, Printer, 1898) (D. C.
Public Library reference K859L, C838c), contained two
parts. The first part covered statutes on such matters as
the judiciary, probate, adoption, property, conveyancing,
corporations, crimes, marriage, etc. The second part related
to municipal affairs generally and contained some 44 chap
ters. Judge Cox’s views as to what were acts “ relating to
municipal affairs” is shown by the content of these chap
ters, including such subjects as Barbed Wire Pences (ch.
4), Cemeteries and Disposal of Bodies (ch. 6), Dogs (ch.

29 I t is relevant to note that the bill which beeame the Act of 1873 (0. 61)
was referred, in the Council of the Legislative Assembly, to the “ Committee
on Washington, Georgetown and County Affairs.” (Journal, Council, 3rd Reg.
Sess., vol. 5, p. 255) (D. C. Public Library reference K859 D638j).

9), Drainage of Lots (oh. 10), Seats for Female Help in
Stores, (eh. 11), Inspection of Flour (ch. 13), Game and
Fish (eh. 14), Harbor Regulations (eh, 16), Licenses (ch.
20),30 Plumbing and Gasfitting (ch. 30), Public Schools (eh.
32), Disposal of Refuse (ch. 35), Steam Engineering and
Boiler Inspection (ch. 37), Street Parking (ch. 38),
Weights and Measures (ch. 44).

Judge Cox’s draft was reviewed by special committees
of the Board of Trade and the Bar Association and by
other interested persons. 9 Rep. Wash. Bd. of Trade 20-21,
134 (Nov. 1899); 10 Ibid. 5-7, 138-142 (Nov. 1900). The
special committee of the Board of Trade reported as fol
lows :31

“ *** it was found impossible, in the time at command,
to thoroughly review the second or municipal part of
Judge Cox’s code. So that the code as submitted to
Congress contained only the first or general part of the
code touching matters of general jurisprudence. It is
very important that Congress should take action look
ing to a proper revision of the second or municipal part
of the code, but any action on the part of the Bar must
be deferred until a suitable commission can be ap
pointed by Congress to undertake that work. ’ ’ (Italics
supplied)

Since the first part of Judge Cox’s draft (containing the
general code) had no saving clause, there was added to the
Bill when it was introduced in Congress by Senator McMil
lan as S. 55301 (55tli Cong., 3rd Sess.; D. C. Public Library
reference K859L UN31b), a new section (sec. 1662) to
save the existing laws and ordinances relating to police
regulations and municipal matters. This section re
pealed previous legislation, including “ all like acts and
parts of acts of the legislative assembly of the District of
Columbia ### except acts relating to the municipal affairs
of the District of Columbia not covered by this code, such

30 Chapter 20, Licenses, included see. 28 prohibiting employment of females
and minors in liquor stores; sec. 32 regulating the business of auctioneers; see.
48 prohibiting opening of billiard places on Sunday; and provided that viola
tion in each of these eases was subject to fine and forfeiture of license.

3110 Bep. Wash. Bd. of Trade, 139 (Nov. 1900) ; see also H. Bept. 1017,
56th Cong., 1st sess. (April 14, 1900); Preface, D. C. Code (1940 ed.), p. xiv.

as acts relating to *** licenses; *** harbor regulations;
barbed wire fences; dogs; drainage of lots; female help in
stores; game and flsb; ***” (and other specifically enumer
ated types of regulations including every one of those listed
above as being contained in Part II of Judge Cox’s draft).

The bill thus carried over Judge Cox’s views as to the
breadth of the categories of acts properly to be considered
as “ relating to municipal affairs.” Section 1662, with
some revision, became Sec. 1636 when the bill was re-intro
duced in the 56th Congress as H. R. 9835. The revision
made no substantive change. Some of the categories of
acts to be saved were excepted from repeal by listing them
in the Eighth exception. Others were excepted from repeal
by considering them as covered by the phrase “ acts re
lating to municipal affairs only” in the Third exception.32
To insure that these acts would be saved, there was also
included in the Third exception a clause saving “ Acts and
parts of acts relating *** to police regulations.” Johnson
v. District of Columbia, 30 App. D. C. 520 (1908).

The enumeration in Judge Cox’s draft and in the Bill
of the subjects deemed to be “ related to municipal affairs”
illustrates the breadth of legislation which sec. 1636 was de
signed to save. The 1872-1873 Acts plainly fall into this
category. The fact that they and others were not specifi
cally listed may, indeed, have been a reason for the gen
eral reluctance to underwrite Part II of Judge Cox’s draft
without comprehensive review.

The enactment of the 1901 Code was obviously not a com
plete codification of the law. It was everywhere recognized
that the Code was only a “ partial codification of suitable
laws to govern this District” and the “ citizenry continued
to seek further enactment and codification of all laws re
lating primarily to this District.” 12 Rep. Wash. Bd. of
Trade 23 (Nov. 1902). The Special Legal (Codification)
Committee of the Board of Trade urged in 1903 (13 Rep.
Wash. Bd. of Trade 119 (Nov. 1903)):

32 For example, the statutes relating to public schools, listed in part I I of
Judge Cox’s draft, have been deemed saved under the Third exception, as
‘ ‘ acts relating to municipal affairs only. ’ ’ Carr v. Corning, 86 App. D. C. 173,
178, 182 Fed. (2d) 14, 18, 19 (1950).

“ It will be recollected that the District Code, as
originally prepared by Mr. Justice Cox, contained a
municipal as well as a general Code. For various rea
sons, the efforts of the Bar Association Committee,
and of this Committee have been, up to the present
time, confined to the procuring of the enactment of the
present Code. This would seem to be a proper time
for taking up the neglected municipal portion. The
public necessity for such a code is greater to-day than
ever. ’ ’

For several years the Washington Board of Trade and
others continued to urge the enactment of a municipal code.
14 Rep. Wash. Bd. of Trade 7, 28 (Nov. 1904); 15 Ibid. 35
(Nov. 1905); 17 Ibid. 43, 149 (Nov. 1907); 19 Ibid. 34, 117
(Nov. 1909); 20 Ibid. 39 (Nov. 1910). In 1908, Senator
Gallinger introduced S. Res. 97 in the 60th Congress “ to
create a Commission to prepare a Municipal Code for the
District of Columbia,” but the bill died in Committee. 42
Cong. Rec. 7017; 18 Rep. Wash. Bd. of Trade 39, 163 (Nov.
1908).

This legislative history shows clearly that the 1872-1873
Acts were comprehended within the phrase “ acts relating
to municipal affairs” , that this phrase wTas intended to
save all existing acts and ordinances properly comprising
a municipal code, and that it wTas everywhere regarded as
having that effect. This Court so viewed it, in effect, in
Carr v. Corning, 86 App. D. C. 173, 178; 182 F. (2d) 14,
18, 19 (1950). And other decisions upholding municipal
ordinances as within a municipality’s power over “ munici
pal affairs” have given a similar construction to those
words.33 The 1872-1873 Acts regulating places of public
accommodation clearly fall within the category of “ acts

33 Porter v. City of Santa Barbara, 140 Calif. App. 130, 35 Pae. (2d) 207
(1934) (ordinance prohibiting public contests or exhibitions of boxing or
wrestling); Bank v. Bell, 62 Calif. App. 320, 217 Pac. 538 (1923) (ordinance
governing establishment and maintenance of markets for sale of foodstuffs) ;
Home Tel. # Tel. Co. v. City of Los Angeles, 155 Ped. 554, 564 (C. C., S. D.,
Calif., S. D. 1907) (ordinance regulating and fixing charges by telephone
companies within c ity ); Mittilcen v. Meyers, 25 Calif. App. 510, 144 Pac. 321
(1914) (ordinance governing inspection and measurement of weights and
measures).

relating to municipal affairs” and were therefore saved
and re-enacted by secs. 1636 and 1640 of the Code.

(3) “Penal statutes authorizing punishment by fine only.”
We contend that the 1872-1873 Acts were also saved by this
exception. These Acts impose a fine of $100 and forfeiture
of license for one year. They do not provide for imprison
ment of a violator.

It is obvious that these acts are “ penal statutes authori
zing punishment by fine.” However, they also authorize
forfeiture of license for one year. If such license revoca
tion is “ penal” or is “ punishment” , this exception pro
vision of course could not apply to these acts. We recognize
that forfeiture of a license may have drastic consequences
on the person or company whose license is revoked. How
ever, courts have generally held, and we believe this rule
applies here, that the temporary revocation of a restaurant
license is not “ punishment” within the legal sense con
templated by this type of provision, but is merely the
remedial exercise of a regulatory function by the Govern
ment in withdrawing a privilege from one who has refused
to comply with his obligations as a licensee.34

D. The 1872-1873 Acts have not been repealed by, and are
not inconsistent with, any regulation promulgated by the
District Commissioners or any other statute. No regulations
by the District Commissioners effected or sought to effect
a repeal of the 1872-1873 Acts. Indeed, the District Com
missioners publicly announced on February 21, 1950, that
“ An exhaustive search of the . . . regulations of the various
Boards of Commissioners since 1874 fails to disclose any
express repeal of these acts” [the 1872 and 1873 Acts].
Washington Times-Herald, p. 1 (Feb. 22, 1950). Nor are

84 L. P. Steuart Bros. v. Bowles, 78 App. D. O. 350, 140 F. (2d) 703,
affirmed, 322 U. S. 398 (1944) ; Nichols # Co. v. Secretary of Agriculture, 131
F. (2d) 651, 659, r. e. (C. C. A. 1st 1942); Board of Trade of City o f Chicago
v. Wallace, 67 F. (2d) 402, 407, 1. e. (C. C. A. 7th 1933), cert, den., 291 TJ. S.
680 (1934) ; Wright V. Securities and Exchange Commission, 112 F. (2d) 89,
94, 1. c. (C. C. A., 2d 1940) ; Federal Communications Commission v. WOKO,
329 U. S. 223, 228 (1946) (denial of renewal of radio broadcasting license
because of false information is not penal) ; Ex parte Wall, 107 IT. S. 265, 288
(1882) (revocation of attorney’s license is not "punishm ent” ) ; Hawker v.
New York, 170 U. S. 189, 199-200 (1898) (forbidding the practice of medicine
by one who had previously been convicted of a felony is not "punishm ent” ).

any regulations of the District Commissioners inconsistent
with the 1872-1873 Acts. Thus, it is unnecessary to discuss
the question whether the District Commissioners, who are
“ merely administrative officers with ministerial powejrs
only” and have no legislative powers, had authority to
repeal by regulation a law which Congress, the sole legisla
tive organ for the District, had saved and in effect re
enacted.35

Nor were the 1872-1873 Acts repealed by the General
License Law or the Alcohol Beverage Control Act, as con
tended by the Thompson Company. The latter acts do not
mention the 1872-1873 Acts and are in no way inconsistent
with them. Both the 1902 and the 1932 License Laws were
designed to raise revenue, not to regulate who shall or shall
not be served in restaurants. Moreover, both of these laws
provided that nothing therein “ shall be interpreted as re
pealing any of the police . . . regulations of the District
of Columbia regarding the . . . conduct of the businesses. . .
herein named.” (32 Stat. 590, 629; 47 Stat. 550; 551; D. C.
Code, 1940 ed. sec. 47-2307). This Court has repeatedly held
that the License Law was not inconsistent with and did not
repeal earlier acts which, like the 1872-1873 Acts, protect
the public by regulating the “ conduct of the businesses” .
Richards v. Davison, 45 App. D. C. 395 (1916); District of
Columbia v. Lee, 35 App. D. C. 341 (1910) ; United States
ex rel. Early v. Richards, 35 App. D. C. 540 (1910).

The Alcoholic Beverage Control Act of Jan. 24, 1934 (48
Stat. 319, as amended; D. C. Code 1940 ed., sec. 25-101, et
seq.) regulates simply the sale and use of liquor, beer and
wine, including the licensing of places dispensing such bev
erages. It does not relate to the licensing of restaurants to
conduct a restaurant business. Nor is it inconsistent with
laws, such as the 1872-1873 Acts, relating to racial discrimi
nation in places of public accommodation. The fact that
the A. B. C. Board has jurisdiction to revoke a liquor li
cense for violation of the Alcoholic Beverage Control Act

35 Cf. District of Columbia v. Bailey, 171 U. S. 161, 176 (1898); Coughlin
v. District of Columbia, 25 App. D. C. 251 (1905); United States ex rel. Daly
v. MacFarland, 28 App. D. C. 552 (1907) ; Dennison v. Gavin, 3 MacA. (10
D. C.) 265 (1877).

(D. C. Code, 1940 ed., sec. 25-106) is not inconsistent with,
nor does it preclude, revocation of a restaurant license and
imposition of a $100 fine for violation of the 1872-1873 Acts.
Even if there were a possible conflict between the prohibi
tion against service of liquor to a minor and the prohibition
against denial of service to a well behaved respectable per
son, no such question is here involved. The persons refused
service in this case were adults, and the Thompson Com
pany neither has a liquor license issued under the Alcoholic
Beverage Control Act, nor, presumably, sells liquor. But
there is no such conflict: the ABC act prohibits simply the
sale of liquor to minors, the 1872-1873 Acts prohibit racial
discrimination.

E. The District Government’s failure for many years to
enforce the 1372-1873 Acts did not effect a repeal of those
Acts. Although the 1872-1873 Acts were vigorously en
forced by the District Government in the period immedi
ately following their enactment (see Part III A of this
Brief), they have not been enforced for many years. Such
lack of enforcement, however, has not repealed them.

It is elementary that “ Failure to enforce the law does
not change it.” Louisville & N. R. Co. v. United States,
282 U. S. 740, 759 (1931) (provision of Interstate Com
merce Act enforced for first time since 1887); see also
Standard Oil Co. v. Fitzgerald, 86 F. (2d) 799, 802 (C. C. A.
6th 1936), cert. den. 300 U. S. 683 (1937). “ A power of Gov
ernment which actually exists is not lost by non-user.”
Chicago, B. & Q. B. Co. v. Iowa, 94 U. S. 155, 162 (1876)
(non-user for more than 20 years). In Kelly v. Washing
ton, 302 U. S. 1, 14 (1937), the Supreme Court said: “ 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.”36

36 See Bomer 4r Son v. Commonwealth, 106 Pa. St. Bep. 221 (1884) (sus
taining conviction of fireworks manufacturer under 1721 act prohibiting sale
of fireworks in Philadelphia without license from Governor. Held: although
two portions of the statute were repealed by subsequent legislation, the re
mainder of the statute, not so repealed, “ cannot be repealed by non-user,”
or by a general license tax statute (p. 226). The statute, long unused, was
163 years old when thus enforced. See also McKeoim v. State, 197 Ark. 454,
124 S. W. (2d) 19 (1939) (upholding conviction under 1885 act which pro-

This principle is, of course, recognized in this jurisdic
tion. In Costello v. Palmer, 20 App. D. C. 210, 220, 30
Wash. L. Rep. 402 (1902), this Court expressly rejected a
contention that an 1844 statute had become obsolete where
it had not been enforced for 28 years after its re-enactment
in 1874 and for 58 years after its initial enactment. And
in Hurd v. Hodge, 334 U. S. 24 (1948), an act enacted in
1866 and re-enacted in 1870 was applied for the first time
in 1948 to prevent enforcement of racial restrictive housing
covenants in the District of Columbia.

This principle is obviously salutary. Otherwise, admin
istrative officials would be able, by inaction or refusal to
enforce a statute, to repeal what the legislature had sol
emnly enacted.

III. THE ACTS OF 1872 AND 1873 WERE, AND STILL
ARE, REASONABLE AND NECESSARY MEAS
URES TO REMEDY A REAL MUNICIPAL EVIL,
AND SHOULD THEREFORE BE ACCORDED THE
BENEFIT OF THE PRESUMPTION THAT SUCH
LEGISLATIVE MEASURES ARE VALID AND
STILL IN EFFECT.

A. Historical background of enactment and enforcement
of the 1872-1873 Acts. The decade during which the 1872-
1873 laws were enacted was characterized by what was per
haps the most intense legislative effort in American history
to establish equality of legal right for all Americans. The
13th Amendment to the Constitution, adopted in 1865,
ended slavery. The 14th Amendment in 1868 elevated the
former slaves to citizenship and guaranteed to them the
equal protection of the laws. The 15th Amendment in 1870
guaranteed them the right to vote without discrimination
because of race. These Constitutional guarantees were im
plemented by Congress by the enactment during this period
of many statutes directed against racial discrimination,

hibited the sale of liquor on Sunday, and rejecting the argument that social,
personal and business relations had so changed in the intervening 54 years
that the 1885 law had become obsolete).

both, in the District of Columbia37 and throughout the coun
try.88 This legislative effort reached its culmination in the
Civil Eights Act of March 1, 1875 (18 Stat. 335) which con
ferred on all persons the right to the “ full and equal enjoy
ment of the accommodations . . . in inns, public conveyances
on land or water, theaters, and other places of public
amusement” without regard to race or color, and made vio
lation thereof subject to civil damages of $500 or criminal
penalties of $500 to $1,000 and imprisonment of 30 days to
one year.

There were in the District a number of keepers of places
of public accommodation who lagged behind the legisla
tors. Their discriminatory practices were manifested
either by outright refusal to serve colored people or by
charging excessive prices to colored patrons. The Wash
ington Evening Star of July 20, 1872 mentions that in
“ some restaurants food and drink have been served to all
colors alike,” but that other restaurants “ put up cards
with enormously large prices marked on them, a heavy dis-

37 E.g., various statutes prohibited railway companies in the District from
‘ ‘ excluding any person from any car on account of color. ’ ’ Act of March 3,
1863 (12 Stat. 805) (Alexandria and Washington Railroad Company) [see
Bailroad Company v. Brown, 84 IT. S. (17 Wall.) 445 (1873)]; Act of'Ju ly 1,
1864 (13 Stat. 326, 329) (Metropolitan Railroad Company); Act of July 13,
1868 (15 Stat. 85, 88) (Connecticut Avenue and Park Railway Company). The
Act of March 3, 1865 (13 Stat. 536, 537) extended this prohibition “ to every
other railroad in the District of Columbia. ’ ’ Other illustrative acts were: Act
of January 8, 1867 (14 Stat. 375) which prohibited “ any distinction on ac
count of race or color” in determining who is entitled to vote at any election
in the District of Columbia; Act of March 2, 1867 (14 Stat. 438) which estab-
Ished Howard University; Act of March 18, 1869 (16 Stat. 3) deleted word
“ white” from all laws relating to District which limited right to be elector
or serve as juror.

33 E.g., Act of July 2, 1864 (13 Stat. 344, 351) prohibited courts of the
United States from excluding any witness on account of color; Act of March
3, 1865 (13 Stat. 507) established Ereedmens’ Bureau; F irst Civil Rights Act
of April 9, 1866 (14 Stat. 27) conferred citizenship on all persons born in
United States and gave colored persons same right as white persons to make
and enforce contracts, to sue and give evidence, to inherit, purchase, lease, sell,
hold and convey real and personal property and to have equal benefit of all
laws, and penalized those who under color of law, regulation or custom, de
prive any person of rights protected by this statute, on account of race; Act
of June 21, 1866 (14 Stat. 66, 67) prohibited racial discrimination in adminis
tration of homestead laws; Act of Jan. 25, 1867 (14 Stat. 379) prohibited
denial of elective franchise on account of race; Act of March 2, 1867 (14 Stat.
440, 457) extended Act of July 2, 1864, supra,, to Court of Claims; Enforce
ment Act of May 31, 1870 (16 Stat. 140) re-enacted Civil Rights Act of 1866
and provided machinery for enforcement of civil rights; Act of April 20, 1871
(17 Stat. 13) to protect civil rights from deprivation by Ku Klux terrorism;
Act of March 3, 1873 (17 Stat. 601) gave colored soldiers same rights to pen
sions and bounties as white persons.

count being made in the case of white customers, so as to
accommodate them at the usual rates.” Tbe article quotes
some of these prices, e.g., ham and eggs for $3, and men
tions that one place had a sign: “ A. liberal deduction made
to our regular patrons.”

This practice, in the heart of the Nation’s Capital, was
an intolerable affront to the flood tide of humanitarianism
whose representatives were combating the evils of racial
discrimination and at that very moment drafting and de
bating the various civil rights measures for the Nation.
People whose attention was focused on the problems of
equality could not ignore these deviations by places of pub
lic accommodation in their very midst. In 1869, the 66th
Council of the Corporation of Washington enacted an ordi
nance prohibiting racial discrimination by places of public
amusement. Act of June 10, 1869, Laws, 66th Coun., Corp.
of Wash., p. 22. In 1870, the 67th Council enacted an ordi
nance prohibiting racial discrimination by hotels, restau
rants, saloons, and other public eating places. Act of
March 7, 1870, Laws, 67th Coun., Corp. of Wash., p. 22.
The Legislative Assembly was in tune with the times ancj
the 1872-1873 Acts were the natural instruments devised to
cure this municipal evil.

The 1872 Act was promptly enforced. The Washington
Evening Star of August 13, 1872, reported that “ Henry
Scherf . . . refusing to sell to colored persons he was fined
$100 and his license ordered to be forfeited.” The Wash
ington Evening Star of August 27 and 30, 1872, reported
that Sabastian Aman was fined $100 and his license for
feited for refusing to sell beer to a colored man in his tav
ern. The Washington Evening Star of September 3 and
December 5,1872 reported that Fritz Schoible, a restaurant
keeper, was penalized for refusing to sell to colored people
and for failing to post his prices. The Washington Eve
ning Star of November 2, 1872 reported that Freund’s ice
cream parlor, a fashionable restaurant at 11th and Pennsyl
vania, was fined $100 and its license ordered suspended,
when Dr. A. T. Augusta of Freedmens Hospital and Air.
R. W. Tompkins of Freedmens Bank, were each required

to pay $2 in advance for a plate of ice-cream usually priced
at 15c; and that Judge Snell of Police Court characterized
the price as a “ pretest” to violate the Act. Another prom
inent case was in September 1874, when the proprietors of
Harvey’s Restaurant, then located on Pennsylvania Ave
nue, were prosecuted and their license ordered suspended
for refusing service to Prof. John M. Langston, who was
head of the law faculty of Howard University, a member
of the District Board of Health, and a prominent member
of the Republican Party, and to Dr. Charles B. Purvis of
the medical staff of Howard University. On appeal, some
of these cases were apparently reversed or nolle grossed
for reasons unrelated to the validity of the Acts of 1872 and
1873. See letter of James H. Whyte in Washington Post,
p. 14 (March 1, 1950); ftnt. 5 of Judge Clagett’s opinion
below (81 Atl. (2d) at 259-260; Thompson App. 42).

On March 1, 1875, Congress enacted the Civil Rights Act
prohibiting racial discrimination in places of public accom
modation throughout the country. In 1883 the Supreme
Court held the 1875 Act unconstitutional on the ground that
the 14th Amendment did not confer on Congress the power
to legislate directly on privately owned places of public
accommodation in the States. Civil Rights Cases, 109 U. S.
3 (1883).89 But the Supreme Court qualified its decision
as follows (at p. 19) :

“ We have also discussed the validity of the law in
reference to cases arising in the States only; and not in
reference to cases arising in the Territories or the Dis
trict of Columbia, which are subject to the plenary
legislation of Congress in every branch of municipal
regulation. ’ ’

This statement was widely interpreted as an implicit hold
ing that the act remained in force in the District of Co
lumbia.

39 Cf. Mitchell v. United States, 313 XT. S. 80 (1941) and Henderson v.
United States, 339 XT. S. 816 (1950) upholding the power of Congress to pro
hibit racial discrimination by railroads in interstate commerce. See Act of
Feb. 4, 1887 (24 Stat. 379, 380; 49 XT. S. C., 1946 ed., see. 3 (1 )), enacted
under the Commerce Clause.

The broad right of civil action which the 1875 Act con
ferred directly on the person discriminated against, to
gether with its onerous criminal penalties, were for many
years major deterrents to discrimination by restaurants,
ice-cream parlors, etc. The 1872-1873 laws thus were less
essential and gradually fell into disuse. But their inclusion
in the 1894 compilation of statutes edited by Abert and
Love joy continued to exercise a substantial deterrent to
restaurant discrimination. These laws were also familiar
to the general public. Illustrative is the mention of them
in the New York Times of Sept. 25, 1904. See Report of
National Committee on Segregation in the Nation’s Capi
tal, Segregation in Washington, p. 18 (Dec. 1948).

The several references to these laws in Meyers’ “ Com
prehensive General Index of the Laws of the District of
Columbia in force January 1, 1912” reflected the general
understanding that the laws were still in effect.

The entire situation changed in 1913. The inauguration
of President Wilson in March 1913 brought to Washington
a new kind of southern congressmen and officeholders.
They were politicians who had pledged to maintain and
extend ‘ ‘ white supremacy, ’ ’ and they immediately set about
putting the Negro “ in his place” in the Nation’s Capital.
The assault on the rights of Negroes was widespread.
Segregation was introduced by administrative officials in
Government cafeterias, lavatory facilities, civil service ap
plications, and other aspects of Government employment.
In Congress, bills were introduced to segregate all Negro
employees and to establish Jim-Crow transportation in the
District, and even to repeal the 14th and 15th Amendments
to the Constitution. “ With the government setting the ex
ample for the community, Negroes lost what rights they
had previously enjoyed in Washington theaters and restau
rants, and were systematically segregated in housing and
private employment.” Segregation in Washington, supra,
pp. 61-62.

Almost simultaneously the Supreme Court of the United
States ruled, in Butts v. Merchants db Miners Transporta
tion Co., 230 U. S. 126 (June 16,1913), that the Civil Rights

Act of March 1, 1875 was inseparable, and that in view of
its invalidation in 1883 in the Civil Rights Cases it was
unconstitutional as applied to racial discrimination in eat
ing and stateroom facilities on a steamship engaged in the
coastwide trade, a field clearly subject to the Commerce
Power of Congress. The Butts case did not actually in
volve either discrimination in the District of Columbia, or
the issue whether the 1875 Civil Eights Act could be upheld
as to the District under the constitutional power of Con
gress “ to exercise exclusive legislation in all cases whatso
ever over such District” (U. S. Const., Art. I, sec. 8).
Nevertheless, the holding as to inseparability was widely
regarded, in view of the Court’s references to “ vessels
upon the high seas, the District of Columbia and the Ter
ritories” (230 U. S. at pp. 132, 133, 135), as having invali
dated the 1875 Act as applied to the District. See Hender
son v. E Street Theatre Corp., 63 Atl. (2d) 649, 76 Wash.
L. Rep. 1165 (Mun. Ct. App., Dist. Col., 1948).

A host of factors had thus combined to drain the vitality
of the 1872-1873 Acts after 1913: (1) The officialdom of the
District was dominated by the racist attitude of a newly
powerful segment of Congress: (2) The colored people of
the District were being subjected to devastating attack in
employment, housing, transportation, and other important
fields; discrimination in restaurants thus became a rela
tively less important arena in which to expend their lim
ited energies and funds in combatting discrimination. (3)
The general reliance prior to 1913 on the 1875 Congres
sional act rather than on the 1872-1873 Legislative Assem
bly Acts had relegated the 1872-1873 Acts to the back
ground of public awareness. (4) The Supreme Court’s
decision in the Butts case was generally regarded as sanc
tioning racial discrimination by restaurants and other
places of public accommodation in the District. (5) The
fact that the 1901 Code had incorporated the Legislative
Assembly Acts only by reference in the savings provisions
of secs. 1636 and 1640, instead of setting forth the full text
of the acts which had been saved, and the continued omis
sion of the text of the 1872-1873 Acts from the 1929 and

1940 D. C. Codes, caused most people, even, lawyers, to for
get the 1872-1873 laws. And so the laws became “ lost.”

None of these factors, however, effected a legal repeal of
the 1872-1873 Acts.

B. The widespread discrimination against colored citizens
now practiced by restaurants in the District has resulted
in a desperate lack of adequate eating facilities for colored
citizens and for groups containing both white and colored
persons. On December 10, 1948, the National Committee
on Segregation in the Nation’s Capital, after an intensive
survey of racial relations in the District of Columbia, re
ported, with respect to restaurants, that: “ In the entire
downtown area, there is practically no place that would
serve him [a colored person], except the government build
ing cafeterias and the Union Station.” Segregation in
Washington, p. 12. A similar finding was voiced by the
President’s Committee on Civil Eights. To Secure These
Rights, p. 95 (Govt. Printing Off., Oct. 29, 1947). Rigid
exclusion remained the general rule until the District Com
missioners’ announcement on February 21, 1950, that the
1872-1873 laws were believed to be still in effect, induced a
number of eating places to drop their exclusionary policy.
Most restaurants, however, have lagged behind, although
there has been no untoward incident in, nor any resulting
loss of business suffered by, those restaurants which re
laxed their previous restriction. The present situation thus
is as the trial court pointed out: “ . . . it is a real problem in
the District of Columbia for members of the Negro race,
who meet the requirements in every way for good behavior
and respectability, to find adequate and satisfactory places
in many sections of this city where they may obtain and be
served with food and drink” (Thompson App. 16).

Such discrimination, in a matter so elemental and essen
tial as obtaining food and drink, inevitably produces ten
sions and frustrations which adversely affect the peaceful
relations of the people in the community and are inimical
to public peace and good order. The benefits of legislation
which precludes so great an evil far outweigh the negligi

ble restraint which the Acts impose on an owner of a place
of public accommodation. In such circumstances, courts
have traditionally accorded to such beneficial laws an
interpretation which would sustain their validity rather
than one which would invalidate them.40 We believe there
is no doubt that the 1872-1873 Acts are now valid. But even
if there were any doubt, we urge that the doubt is insuffi
cient to overcome the presumption of their validity.

IV. TEE DISTRICT OF COLUMBIA IS READY AND
WILL ACCEPT EQUALITY OF RIGHT IN THE
PUBLIC EATING PLACES OF OUR NATION’S
CAPITAL.

The President of the United States, in Ms speech before
the Lincoln Memorial on June 29, 1947, said: “ The exten
sion of civil rights today means not [only] protection of
the people against the Government, hut protection of the
people by the Government. ’ ’41 This principle, enshrined in
the 13th, 14th, and 15th Amendments which were evoked
by the Civil War and implemented in the legislation of the
following* decade, is again being applied under the impetus
of world crisis. Some of the forward steps already taken
are the virtual elimination of segregation in the armed
forces,42 the drive for additional civil rights legislation,43

40 Wood v. United States, 41 U. S. (16 Pet.) 342, 365-366 (1842) ; United
States v. Dotterweich, 320 TJ. S. 277, 280 (1943); Screws v. United States, 325
IT. S. 91, 100 (1945); McDermott v. Wisconsin, 228 U. S. 115, 128 (1913);
United States v. Alpers, 338 IT. S. 680, 682 (1950) ; United States v. Raynor,
302 IT. S. 540, 552 (1938); United States v. Freeman, 239 IT. S. 117, 120
(1915) ; Lauer v. District of Columbia., 11 App. D. C. 453, 457 (1897) ; Dis
trict of Columbia v. Horning, 47 App. X>. C. 413, 423 (1918).

41 93 Cong. Ree. part 12, p. A-3300, July 2, 1947; The Washington Post, p.
4, June 30, 1947. President Truman reiterated this principle in his State of
the Union Message to Congress on January 5, 1949 (H. Doe. 1, 81st Cong.,
1st sess., p. 6 ): “ The driving force behind our progress is our faith in our
democratic institutions. That faith is embodied in the promise of equal
rights and equal opportunities -which the founders of our Republic proclaimed
to their countrymen and to the whole world.

“ The fulfillment of this promise is among the highest purposes of govern
ment. . . . ”

42 Freedom to Serve, Report of President’s Committee on Equality of Treat
ment and Opportunity in the Armed Services (Govt. Printing Off., May 22,
1950).

43 President’s Message to Congress of Peb. 2, 1948 (H. Doc. 516, 80th
Cong., 2nd sess.).

and the Government’s participation in litigation to elimi
nate racial segregation.44 The most recent instance of Con
gressional affirmation of this policy is sec. 5(n) of the Or
ganic Act of Guam (Act of Aug. 1, 1950, Public Law 630,
81st Cong.) which provides: “ No discrimination shall be
made in Guam against any person on account of race, lan
guage, or religion, nor shall the equal protection of the
laws be denied.” The prosecution of this case by the Gov
ernment of the District of Columbia, to enforce the anti-
discrimination laws of the Legislative Assembly of 1872
and 1873, is in accord with the great tradition of the Amer
ican Ideal.

The enforcement of the 1872-1873 laws will benefit not
only the colored people but also the restaurants and the
whole community. It will dissipate the bugaboo of loss of
business, the excuse which some restaurants use to justify
their otherwise illogical refusal to serve colored members
of the invited public. And by applying a uniform rule to
all restaurants, it will relieve the pressures which many
citizens so frequently put on particular restaurants to ad
mit colored people, e.g., the present boycott and picketing of
the Hecht Company, the “ sit-down” last year at the Sholl’s
cafeteria, etc. Moreover, the abolition of discrimina
tion in respect to such a basic “ necessary of life” as ob
taining food will promote public peace and good order and
will ease much of the tensions and frustrations which now
exacerbate racial relations in the District. In addition, it
will benefit Washington restaurants and business generally
since many groups now stay away from Washington be
cause of its practices of racial discrimination.45 Most im
portant, it will give vitality to the vaunted position of the
District as the Capital of a Nation dedicated to the prin
ciples of democracy and now fighting for those principles
on the battlefronts of the world. See Articles 55(c) and 56,

44 See Briefs of the United States in the present eases and in Shelley v.
Kraemer, 334 U. S. 1 (1948); Hurd v. Hodge, 334 U. S. 24 (1948); Taka-
hashi v. Fish Game Commission, 334 U. S. 410 (1948) ; Graham v. Brother
hood of Locomotive Firemen and Engmemen, 338 U. S. 232 (1949) ; Sweatt v.
Painter, 339 U. S. 629 (1950) ; McLaurin v. Oklahoma State Regents, 339 U. S.
637 (1950); Henderson v. United States, 339 TJ. S. 816 (1950).

45 Examples of such boycotts are in Appendix F.

Charter of the United Nations (59 Stat. 1031, 1045-1046),
which as a treaty of the United States is now “ the supreme
law of the land” (U. S. Const., Art. VI), and under which
the United States and other signatories “ pledge them
selves” to “ promote universal respect for, and observance
of, human rights and fundamental freedoms for all without
distinction as to race. ’ ’

Those of small and closed minds, who see the end of the
white race in America if white and colored citizens are per
mitted to eat in the same restaurants, are becoming a
smaller and smaller minority, in the South as well as in the
North. They are the same type of people who predicted
“ chaos” when Negro children were first allowed to be edu
cated.46 They predicted that political revolution and elec
tion by bullet instead of by ballot would result from the
Supreme Court’s decision forbidding denial to Negroes of
the right to vote in a primary election.47 They predicted
wholesale riot when the highest court in our land ruled that
Negroes may not be denied, solely because of their race,
the right to sit on a jury,48 or to purchase and occupy a
home,49 or to work for a living,50 or to ride unsegregated in
interstate buses,51 or to eat in dining cars on interstate rail
roads without being subjected to humiliating segregation,52
or to engage in graduate university study without the
handicaps of arbitrary segregation.53 They predicted that
the elimination of segregation in the armed forces would
result in “ racial trouble.”54 Such dire forecasts have pre-

46 See W. E. B. DuBois, Souls of Black Folk, p. 32 (1903).
47 Smith, V. Allwright, 321 IT. S. 649 (1944).
48 Strauder v. West Virginia, 100 IT. S. 303 (1880).
49 Shelley v. Kraemer, 334 II. S. 1 (1948) ; Surd v. Hodge, 334 IT. S. 24

(1948).
50 Steele v. Louisville $ Nashville B. Co., 323 U. S. 192 (1944) ; Graham v.

Brotherhood of Locomotive Firemen and Enginemen, 338 IT. S. 232 (1949).
51 Morgan v. Virginia, 328 IT. S. 373 (1946).
52 Henderson v. United States, 339 IT. S. 816 (1950).
53 McLaurin v. Oklahoma State Begents, 339 IT. 8. 637 (1950).
54 Freedom to Serve, supra, ftnt. 42, pp. 12, 24, 44. The Associated Press

dispatch of Aug. 19, 1950, noted that the complete elimination of segregation
at Ford Ord, California, where the 4th Infantry Division is training, was ac
companied by “ no trouble” and that even Southern white officers are con
vinced that it is the “ only solution.” Washington Sunday Star, p. A-3 (Aug.
20, 1950). General Bidgway, integrating his troops in Korea, ^recently said:
“ I t has been demonstrated that in combat in Korea, Negro soldiers serve more
effectively in integrated units.” Time Magazine, p. 12 (A«g. 6, 1951).

ceded every advance of the colored people toward first-
class citizenship. But these phobias turned out to be fan
tasies. There were no such disturbances.

Similarly, there is no foundation for such fears here.
In the first place, the people of the District have the good

sense to avoid any racial friction. The Washington Eve
ning Star and the Washington Post, in editorials published
July 12, 1950, have expressed a widespread sentiment that
restaurants in the District should cease their “ disgraceful”
exclusionary practices. Furthermore, the people of Wash
ington are already accustomed to non-discriminatory
dining such as occurs daily in the Union Station restaurant,
in several other restaurants, and in all the Government
cafeterias. Moreover, the experience of the several restau
rants which recently began to serve colored people as well
as white people, following the initiation of the drive to re
vive the enforcement of the 1872-1873 laws, demonstrates
that their application to all restaurants will produce no
difficulty. Nor did any difficulty result when the restau
rants in the National Zoological Park and the Washington
National Airport were opened to colored people within the
past two years. See Air Terminal Services, Inc. v. Rentsel,
81 F. Supp. 611 (D. CL, E. D. Va„ Alex. Div. 1949).

The District has never had the rigid pattern of discrimi
natory exclusion and separation typical until recently in
some parts of the Deep South. It is noteworthy that ever
since 1865, white and colored people have used the Dis
trict’s street cars and buses without racial distinctions.
See sec. 5, Act of March 3, 1865 (13 Stat. 536, 537), under
which “ the provision prohibiting any exclusion from any
car on account of color, already applicable to the Metro
politan Railroad [under Act of July 1, 1864 (13 Stat. 326,
329)], is hereby extended to every other railroad in the
District of Columbia.”

In other types of public accommodations, rapid progress
is now being made toward equality of rights for all people
in the District. Golf courses, picnic grounds, tennis courts,
swimming pools, the tourist camp lodgings, and all other
park facilities in the District operated by or under the

jurisdiction of the Department of the Interior, are being
used by white and colored people without friction. Every
public building (including evening use of school buildings)
and almost every major private auditorium, including
Uline Arena, Turner’s Arena, and many others, and sev
eral theaters, are now open to use by integrated groups.
All of the universities, with one notorious exception, now
admit qualified students without regard to race. At none
of these places has “ racial trouble” arisen. Even where
segregation under government auspices still exists, there
has been a notable movement toward its elimination. On
May 8, 1949, the Chairman of the D. C. Recreation Board
issued a public report acknowledging that enforced segre
gation was out of tune with accepted practices in the com
munity; and on June 14, 1949, the D. C. Recreation Board
rescinded its by-law of compulsory segregation and substi
tuted a by-law pledging removal of segregation. Under
that policy, the Board has opened several previously segre
gated play areas to interracial use. See Washington Eve
ning Star, p. 1 (July 27, 1950); Washington Post, Editorial
(July 6, 1951); Minutes, D. C. Recreation Board, July 10,
1951. Particularly noteworthy is the recommendation by
Dr. Walter Hager, President of Wilson Teachers College,
for merger of that college, which trains white teachers,
with Miner Teachers College, which trains colored teachers.
Dr. Hager emphasized that (1) Washington as the Nation ’s
Capital must provide liberty and equality to Negroes if the
United States is to maintain its position and successfully
combat communism abroad; (2) segregation generally is
breaking down in the city; and (3) students at the two col
leges are ready for a merger. Washington Sunday Post,
p. 9M (Sept. 3, 1950); Washington Sunday Star, p. 1
(Sept. 3, 1950). And just yesterday the District Commis
sioners announced the end of segregation in the Fire De
partment. Washington Post, p. IB (Oct. 3, 1951); ibid.,
Editorial (Oct. 6, 1951).

The time is ripe, and the people of Washington are
ready, for our colored citizens to have equality of right in
the public eating places of our Nation’s Capital.

In any event, even if there were any real problem of
“ race hostility” or a possibility of serious “ race conflict”
in the District (which there is not), such problems should
be solved by education and by enforcing the laws against
violence and disorderly conduct. Such problems may not
be solved by depriving well-behaved and respectable citi
zens of their legal rights and privileges. Buchanan v. War-
ley, 245 U. S. 60, 80-81 (1917); Shelley v. Kraemer, 334
U. S. 1, 21 (1948). “ There is no room for administrative
or expert judgment with respect to practical difficulties. It
is enough that the discrimination [is] . . . forbidden by the
act.” Mitchell v. United States, 313 U. S. 80, 97 (1941).
This case, in fact, touches the essence of law enforcement
in America. A valid law must be enforced and obeyed,
even by those who disagree with it. Citizens and officials
cannot be relieved of their obligation to respect the law,
simply because they do not like it or regard it as unwise.
Nor can personal beliefs or prejudices justify failure to re
spect the legal rights of others.

We do not contend that individuals do not, or should not,
have a legal privilege to exercise a personal preference
against eating in the same restaurant or at the same table
with Negroes. If the 1872-1873 Acts are enforced, that
individual privilege will remain unimpaired. Any person
may, if he chooses, forego or postpone a meal rather than
take it while a person of another color is being served in
the same restaurant. Any person who does not like to dine
at the same table with a person of another race would
be free to decline a seat offered at a table where such a per
son is eating. The decisive point is that it is one thing for
an individual to have personal prejudices. It is something
entirely different for the operator of a place of public ac
commodation to force the general public to conform to his
bias in violation of the law. As the Supreme Court of
Michigan said 60 years ago, in upholding a Michigan Civil
Eights statute and penalizing an attempt to segregate
Negroes at separate tables in a restaurant:

“ The man who goes either by himself or with his
family to a public place must expect to meet and min

gle with all classes of people. He cannot ask, to suit
his caprice or prejudice or social views, that this or
that man shall he excluded because he does not wish to
associate with them. He may draw Ms social line as
closely as he chooses at home, or in other private
places, but he cannot in a public place carry the pri
vacy of his home with him, or ask that people not as
good or great as he is shall step aside when he ap
pears.” Fergtison v. Gies, 82 Mich. 358, 367-368, 46
N. W. 718, 721 (1890).

Respectfully submitted,

AMERICAN VETERANS COMMITTEE, INC.
Amicus Curiae

Pm XEAS IXDRITZ,
G eorge, Bunx,

Attorneys for
American Veterans Committee, Inc.

Amicus Curiae
1751 New Hampshire Ave., N. W.,
Washington, D. C.,
NOrth 0581
Dated: October 22, 1951.

APPENDIX

Appendix A

APPENDIX A.

l a

Examples of Foreign Reactions to Racial Discrimination
in the District of Columbia.

1. “Russian Newspaper Hits Treatment of Negroes
Here (AP) Moscow, Aug. 21—The newspaper ‘Trad’
said today that Negroes in Washington were ‘prohibited
from attending movies, restaurants, barber shops and
beaches where whites were present.’

“ ‘Let us remember this is all taking place in the city
which, according to the reference books, has the resi
dence of the President and the Capitol building in
which Congress sits,’ the article continued.
“ Trud asked: ‘Will Washington “ democrats” dare
restrict the Liberian Ambassador to movies and res
taurants only in the Negro ghetto!’ ”—Washington
Evening Star, p. A-24, August 21, 1947.

2. “A distinguished Bolivian educator was invited to
Washington by the State Department on a good will tour.
He had the dark Indian complexion typical of his country
men, and was closely attended by an American official, who
made arrangements for his hotel accommodations, meals,
shopping, etc. One night, however, left to his own devices,
he went out for a stroll and decided to stop at a restaurant
for something to eat. Refused service, he returned to his
hotel in great indignation and protested to the State De
partment. Apologies were offered.”—Case 8, Segregation
in Washington, p. 5, Report of National Committee on Seg
regation in the Nation’s Capital (Dec. 1948).

3. “A Hindu and his wife were shopping one afternoon
in a five-and-ten cent store. The woman stopped at the
soda fountain and ordered a cup of tea. The clerk, mis
judging her racial identity despite the fact that she was
dressed in Indian costume, refused to take the order,
stating that Negroes were not served. When the couple ex
plained they were from India, apologies were offered and
the tea was served.”—Case 110, Segregation in Washing
ton, p. 6, Report of National Committee on Segregation in
the Nation’s Capital (Dec. 1948).

2a A p p e n d ix A

4, A Haitian Negro—“ In December, 1946, tbe members
of the Inter-American Commission of Women, whose head
quarters are in the Pan American Union, were invited to
tea at the White House. The Commission attended in a
body; among the delegates was a'Haitian Negro. At the
White House they were received cordially, and as they left
the executive mansion the president of the Commission in
vited her colleagues to cocktails at (a leading hotel). The
group entered the hotel and went directly to the cocktail
lounge. Instantly the headwaiter approached the president
of the Commission, who is a regular patron of the hotel,
and made it known that he would have to escort the Haitian
lady out of the hotel, by force if necessary. The president
of the Commission, looking desperately for a way out of a
situation that might quickly develop into an international
incident, asked to be taken to the manager. An incident
was avoided only by the strong protest of the president of
the Commission, who emphasized that dire consequences
were apt to develop if the hotel forcibly excluded the
Haitian delegate. So far as can be determined, the Com
mission has given no more cocktail parties at Washington
hotels attended by colored persons.”—Document 86F, p.
11, Racial Segregation and Americcm. Foreign Policy—■
mimeographed—National Committee on Segregation in the
Nation’s Capital, December, 1948.

5. “A Frenchman who has resided in Washington for
three months entered a downtown restaurant with a Negro
friend. He was told that Negroes were not welcome in the
place. This statement amazed and angered him. He had
not previously been aware that such types of discrimina
tion are common in the city. Stating that such practices
did not fit into his ‘conception of democracy,’ the French
man said that they were repugnant to him ‘on moral and
charitable grounds.’ ”—Doc. 76F, p. 14, Racial Segrega
tion and American Foreign Policy—mimeographed—
National Committee on Segregation in the Nation’s Capi
tal, December, 1948.

A p p e n d ix A 3a

6. “A Danish employee of an international agency lo
cated in Washington stated . . . he was ‘shocked’ to find
segregation in the granting of medical care, in restaurants
and theaters, ‘in the Capital of the United States.’ He ex
plained that he had never thought of the question before
coming here, because there is no race problem in his own
country, but found himself ‘outraged’ by the ‘injustice’ he
saw.”—Document 11F, p. 15, Racial Segregation and
American Foreign Policy—mimeographed—National Com
mittee on Segregation in the Nation’s Capital, December
1948.

7. A prominent Latin American said: “ Of all places
Washington is the last city in the country where one would
expect to see such things as the barring of Negroes from
restaurants and theaters. This situation in the Nation’s
Capital is one that all Latin Americans cannot fail to
observe and react to adversely. This is bound to diminish
the moral force of the United States.”—Document 109F,
p. 15, Racial Segregation and American Foreign Policy—
mimeographed—National Committee on Segregation in the
Nation’s Capital, December 1948.

8. An official of one of the Scandinavian Governments
stated: “ I ate my first Washington meal in a drugstore,
and I was horrified to hear the counterman who served me
tell a Negro: ‘We don’t serve you people in here.’ ”

“ In real humility, I say that I do not believe that you
Americans should decide your destiny in accordance with
our wishes. But I believe you should knowr that Washing
ton today, despite its great outward beauty, is not a good
‘salesman’ for your kind of democracy.”—Document 67F,
pp. 16-17, Racial Segregation and American Foreign Pol
icy—mimeographed—National Committee on Segregation
in the Nation’s Capital, December 1948.

9. The New Statesman and Nation, London, England,
Norman MacKenzie, Feb. 12, 1949—“ At some cafes a Ne
gro may eat (Washington, D. C.) if he stands at the coun
ter, but will not be served sitting at a table. There is even
one instance where a waitress refused service to 4 students

4a A p p e n d ix A

from the West Indies and then relented when they told her
they were British. ‘Oh,’ she said in a revealing phrase, ‘I
didn’t realize yon weren’t niggers.’ . . . Washington is the
shop window of American democracy.”

10. Chicago Sun-Times, Wedn., June 8, 1949—“Reds
Play Up Story of Bundle, Racism”—“Moscow—The Mos
cow radio has broadcast to the Soviet Union and other
countries the story of Ralph Bnnche. The story also was
published prominently in the Russian newspapers.

‘ ‘ The story of a highly-educated, cultured and loyal pub
lic servant who felt unable to accept one of the highest
offices in his country (Assistant Secretary of State) be
cause its capital discriminates against his race undoubtedly
is one of the most damaging and disgraceful stories about
the United States which could be published abroad. ’ ’

11. New York Times, March 19, 1950—“Bias Here
Shocks African Students.”

“ African students coming to this country in search of
civilization are ‘shocked and embittered’ by the wide
spread racial prejudice they have found, according to
the report of a study made under the auspices of the
British and United States Governments with a grant
by the Carnegie Corporation.”

12. Russian propaganda—“ The theory and practice of
racial discrimination against the Negroes in America is
known to the whole world. The poison of racial hatred has
become so strong in post-war America that matters go to
unbelievable lengths; for example, a Negress injured in a
road accident could not be taken to a neighboring hospital
since this hospital was only for ‘whites’.” Article in The
Bolshevik (U. S. S. R.) No. 15, 1948, by Prantsov, entitled,
“ Nationalism—The Tool of Imperialist Reaction.’’

Another article, in the Literary Gazette (U. S. S. R.) No.
51, 1948, by Berezko, entitled “ The Tragedy of Coloured
America,” stated: “ It is a country within a country.
Coloured America is not allowed to mix with the other
white America, it exists within it like the yolk in the white
of an egg. Or, to be more exact, like a gigantic ghetto.

A p p e n d ix A 5a

The walls of this ghetto are invisible but they are nonethe
less indestructible. They are placed within cities where
the Negroes live in special quarters, in buses where the
Negroes are assigned only the back seats, in hairdressers
where they have special chairs. ’ ’ Quoted in Brief for the
United States, in Henderson v. United States, No. 25, Oct.
Term, 1949, 339 U. S. 816 (1950).

13. The views of the State Department—On May 8, 1946,
Honorable Dean Acheson, then Acting Secretary of State,
and now Secretary of State, said: “ . . . the existence of
discrimination against minority groups in this country has
an adverse effect upon our relations with other countries.
We are reminded over and over by some foreign newspa
pers and spokesmen, that our treatment of various minor
ities leaves much to be desired. While sometimes these
pronouncements are exaggerated and unjustified, they all
too frequently point with accuracy to some form of dis
crimination because of race, creed, color, or national origin.
Frequently we find it next to impossible to formulate a
satisfactory answer to our critics in other countries; the
gap between the things we stand for in principle and the
facts of a particular situation may be too wide to be
bridged. An atmosphere of suspicion and resentment in a
country over the way a minority is being treated in the
United States is a formidable obstacle to the development
of mutual understanding and trust between the two coun
tries. We will have better international relations when
these reasons for suspicion and resentment have been re
moved.

“ I think that it is quite obvious . . . that the existence of
discriminations against minority groups in the United
States is a handicap in our relations with other countries.
The Department of State, therefore, has good reason to
hope for the continued and increased effectiveness of pub
lic and private efforts to do away with these discrimina
tions.” Quoted in The Report of the President’s Commit
tee on Civil Rights, To Secure These Rights, pp. 146-147
(Govt. Printing Off., Oct. 29, 1947).

APPENDIX B.
The Background of this Case.

Public interest in the continuing validity of the 1872 and
1873 Acts was dramatically aroused when the National
Committee on Segregation in the Nation’s Capital, on pre
senting its Report at a public luncheon at the Willard Hotel
on December 10, 1948, commented on these Acts and specu
lated as to how they “ mysteriously disappeared” from the
compiled statutes of the District. Segregation in Washing
ton, p. 18.

On May 16, 1949, a committee of lawyers representing
the D. C. Chapter, National Lawyers Guild, and including
such distinguished members of the District Bar as the late
Mr. Charles H. Houston and former Judge James A. Cobb,
presented to the District Commissioners a memorandum
opinion indicating that the 1872 and 1873 Acts were still in
effect and requested that the District Commissioners issue
a public announcement that the Acts would be enforced in
the near future.

In September 1949 a Coordinating Committee for the
Enforcement of the D. C. Anti-Discrimination Laws was
established to coordinate the efforts of the many organ
izations and individuals who had become interested in
awakening the enforcement of the 1872-1873 Acts, and to
initiate a test case.

On February 21, 1950, the District Commissioners an
nounced that “ An exhaustive search of the acts of Con
gress and the regulations of the various Boards of Com
missioners since 1874 fails to disclose any express repeal
of these acts,” and that “ the Board of Commissioners has
instructed the Corporation Counsel to prosecute the next
complaint of violation of these acts.” Washington Times-
Tlerald, p. 1 (Feb. 22, 1950).

A test prosecution was instituted in the Municipal Court
on March 2,1950 (Criminal, No. 99150) against the John R.
Thompson Company, the operator of a restaurant which
had refused service to four “ well-behaved and respectable
persons,” including three persons of Negro ancestry. On

A p p e n d ix B

A p p e n d ix G 7a

July 10, 1950, Judge Myers quashed the information on the
basis of a written opinion (Thompson App. 4-17). Al
though the District filed a Notice of Appeal, the appeal
was abandoned because of technical questions involving the
issue of double jeopardy. Consequently a new case was
filed against the same company on the basis of a new test.

APPENDIX C.
Summary of Acts of 1872 and 1873.

The Act of June 20, 1872 contains three sections. Only
section 3 is here involved.1 This section [sec. 150, on p. 183,
D. C. Compiled Statutes, 1887-1889, by Abort & Lovejoy]
provides that any keeper or proprietor of certain named
facilities who refuses “ to sell or wait upon any respectable
well-behaved person, without regard to race, color, or pre
vious condition of servitude” or “ under any pretext to
serve any well-behaved, respectable person, in the same
room, and at the same prices as other well-behaved and re
spectable persons are served,” shall be fined $100 and for
feit his license for one year. The facilities named are:
restaurants, hotels, ice-cream saloons, places where soda-
water is sold, barber-shops and bathing houses.

The Act of June 26,1873 contains five sections. Only sec
tions 3, 4 and 5 are here involved.2 Section 3 [sec. 153 on p.

1 Section 1 [section 148 on p. 183, D. C. Compiled Statutes, 1887-1889, by
Abert & Lovejoy] requires tbe keepers or owners of certain named facilities
to “ put in a eonspicious place” therein “ a scale of the prices for which the
different articles they have for sale will be furnished.” The facilities named
are: restaurants, eating-houses, bar-rooms, ice-cream saloons, and soda-foun
tains, at which food, refreshments or drinks are sold; and barber shops and
bathing houses. Section 2 [sec. 149 in above-mentioned Compiled Statutes]
subjects violators of section 1 to a fine of not less than $20 and not more
than $50.

2 Section 1 [sec. 151 on p. 184 in above-mentioned Compiled Statutes] re
quires the proprietors or keepers of certain named facilities to post “ in two
conspicuous places in the chief room or rooms . . . and in one conspicuous
plaee in each small or private room” , used for customers, printed lists of the
prices for food and drink, and prohibits them from demanding or receiving
a greater price than so listed. The facilities named are : every licensed restau
rant, eating-house, bar-room, sample-room, ice-cream saloon, or soda-fountain
room. Section 2 [sec. 152 in above-mentioned Compiled Statutes] requires the
proprietors or keepers of these facilities to transmit “ to the Eegister of said
District” on or before November 1st in each year, a printed copy of their
price lists; specifies that unless the Eegister is notified of any changes, this
price list may be used in any case under the act as prima. facie evidence of
the usual prices charged; and requires the Eegister to demand a copy of the
price lists if the proprietor or keeper fails to transmit it to him.

8 a A p p e n d ix C

184, D. C. Compiled Statutes, 1887-1889, by Abert & Love-
joy] requires tbe proprietor or keeper of certain named
facilities to sell, at tbe usual price on tbe printed price list,
any article kept for sale “ to any well-behaved and respect
able person or persons wbo may desire tbe same . . . and
serve tbe same to such person or persons in tbe same room
or rooms in which any other well-behaved person or per
sons may be served or allowed to eat or drink in said place
or establishment,” except that persons of different sexes
are not to be served in the same room unless they accom
pany each other or unless the room is ordinarily used by
persons of both sexes. The facilities named are: “ any
licensed restaurant, eating-house, bar-room, sample-room,
ice-cream saloon, or soda-fountain room.” [A “ sample-
room” was a saloon or bar-room. See District of Colum
bia v. Nam, 9 Mackey (20 D. C.) 547 (1892).]

Section 4 [sec. 154 in above-mentioned Compiled Stat
utes] imposes a fine of $100, and forfeiture of license, on
any proprietor or keeper of such facilities who does not
post a printed price list; or refuses to send a copy to the
Register; or posts, demands or receives prices greater than
his usual selling price; or “ refuse or neglect, in person or
by his . . . agent, directly or indirectly, to accommodate
any well-behaved and respectable person” ; or refuses or
neglects to sell to such persons at the usual prices and in
the rooms in which articles are ordinarily sold and served;
or fails or refuses on any pretext to treat any well-behaved
and respectable person “ as any other well-behaved and re
spectable person or persons are treated at said restaurant,
eating-house, bar-room, sample-room, ice-cream saloon, or
soda-fountain room.” Section 4 also states that the act
shall be enforced by information in the Police Court of the
District of Columbia, subject to appeal “ in the same man
ner as is now or may be hereafter provided for the enforce
ment, of the District fines and penalties under ordinances
and law. ’ ’

Section 5 provides that “ all acts and parts of acts in
consistent herewith are hereby repealed.”

Appendix I)

APPENDIX D.

Summary of Decisions Recognizing Validity of Acts of
Legislative Assembly After 1878.

In Johnson v. District of Columbia, 30 App. D. 0. 520,
36 Wash. L. Eep. 173 (1908), this Court sustained John
son’s conviction under an act of 1871 of the Legislative
Assembly for having, on August 9, 1907, cruelly worked a
horse. The Court specifically ruled that this act of the
Legislative Assembly was saved by paragraph Third of
section 1636 of the 1901 D. C. Code and was therefore in
force in 1907.

In three cases, this Court upheld the validity of tax as
sessments made by the District Commissioners after 1878
under authority of an act of 1873 of the Legislative As-<
sembly and ruled that the act was valid and constitutional.
District of Columbia v. Burgdorf, 6 App. D. C. 465 (1895) ;
District of Columbia v. Weaver, 6 App. D. C. 482 (1895);
and Parsons v. District of Columbia, 8 App. D. C. 391, 24
Wash. L. Rep. 269 (1896), affirmed, 170 U. 8. 45 (1898).

In Lasley v. District of Columbia, 14 App. D. C. 407
(1899), this Court upheld the conviction, under an Act of
1871 by the Legislative Assembly, of a dealer in second
hand property who engaged in that business without a li
cense as required by that act. This Court specifically ruled
(at p. 413) that that act “ is entirely valid and operative as
a municipal regulation. ’ ’

In Cooper v. District of Columbia, MacArthur & Mackey
(11 D. C.) 250 (1880), Cooper was convicted for selling as
a produce dealer without a license as required by an act of
1871 of the Legislative Assembly. He defended his failure
to get a license on the ground that the act was not valid,
and particularly urged that this act had been repealed by
the taxing provisions of the Organic Act of 1878 (at p. 255).
The Court rejected his contention, saying at page 259:
“ The changes in the organization of the District Govern
ment since the passage of the Organic act, have not affected
the question.” (Emphasis supplied.)

10a A p p e n d ix D

In Bush v. District of Columbia, 1 App, I). C. 1 (1893),
the very first ease decided by the newly-created Court of
Appeals for the District of Columbia, this Court ruled that
the provisions of the Legislative Assembly Act of August
23, 1871, regulating the sale of liquors were in effect until
repealed by the act of March 3, 1893 (27 Stat. 563), and
that liquor licenses issued under the 1871 Act were valid
until November 1, 1893, even though the 1871 Act was re
pealed on March 3, 1893. This Court expressly noted (at
p. 8 ) that the 1871 Act “ is in force still as to some other
occupations.”

In District of Columbia v. Waggaman, 4 Mackey (15
D. C.) 328 (1885), Waggaman was sued on a bond which
he had executed in 1882 in order to obtain a real estate
agent’s license pursuant to the requirements of an act of
1871 of the Legislative Assembly. Waggaman urged that
the 1871 act was invalid. The Court held that the 1871 act
was in effect in 1882 when the bond was executed and that
the bond could therefore be enforced.

In Smith v. Olcott, 19 App. D. C. 61, 73-74 (1901), the
validity of an 1871 act of the Legislative Assembly was
challenged in 1901. Section 15 prohibited the sale of prop
erty by an auctioneer who had not obtained a license, and
required every auctioneer and real estate agent to furnish
a bond. Section 21 contained a clause fixing maximum
rates of charges by auctioneers. This Court held that the
latter clause was invalid, but ruled as follows with respect
to Section 15 of the 1871 act of the Legislative Assembly:

“ So much of the fifteenth section as imposes a tax
upon real estate agents, and requires of them a bond,
has been upheld by the Supreme Court of the District,
in General Term, and the same decision would, for a
stronger reason if anything, apply to auctioneers. Dis
trict of Columbia v. Waggaman, 4 Mack. 328.”

Moreover, there have been several other cases in which
this Court, and the Supreme Court for the District of Co
lumbia prior to the creation of the Court of Appeals, al
though voiding convictions or tax liens under certain acts

A p p e n d ix E 1 1 a

of the Legislative Assembly, dealt with the cases on the
assumption that those acts had not been repealed in 1878.
Calkm v. District of Columbia, 16 App. D. C. 271 (1900);
Stevens v. Stoutenbwrgh, 8 App. D. C. 513 (1896); Smith v.
Stoutenburgh., 8 App. D. C. 510 (1896); District of Colum
bia v. Nam, 9 Mackey (20 D. C.) 547 (1892); Johnson v.
District of Columbia, 6 Mackey (17 I). C.) 21 (1887). See
also Lansburgh v. District of Columbia, 11 App. 1). C. 512,
524-525 (1897), where the Court of Appeals in 1897 affirmed
a conviction under an act of Congress of February 17, 1873
(17 Stat. 464; Rev. Stat. for Dist. of Col., secs. 1176, 1177)
which penalized gift enterprises “as defined m said- act”
of 1871 of the Legislative Assembly. (Emphasis supplied.)

APPENDIX E.
Legislative History of 1878 Organic Act.

Senator Ingalls of Kansas, the floor leader in the Senate
of the bill (H. R. 3259, 45th Cong., 2d sess.) which became
the Act of 1878, stated in his explanation of the bill that
section 1 “ re-enacts the provisions of existing statutes”.
7 Cong. Rec. 3607, 45th Cong., 2d sess. (May 21, 1878).
(Emphasis supplied.) The provision in section 3 requiring
the tax assessment and collection procedure to be per
formed as “now provided by law, except insofar as is
otherwise provided by this act”, was sponsored by Repre
sentative Baker of Indiana, and was adopted without any
objection, after he explained on the floor of the House that
his purpose was to protect citizens, in the collection of
delinquent taxes, by having existing law applied, “ instead
of the best judgment or the best discretion of the commis
sioners” . 7 Cong. Rec. 3246, 45th Cong., 2d sess. (May 7,
1878). (Emphasis supplied.)

Senator Bayard of Delaware offered an amendment
(enacted in sec. 2 of the 1878 Act) requiring each Commis
sioner, before entering upon the duties of his office, to “ give
bond in the sum of $50,000, with surety as required by
existing law”. Senator Ingalls then suggested that the
amendment “ is very indefinite in its terms, inasmuch as it

12a A p p e n d ix E

does not prescribe the conditions upon which the bond is to
be given and for what purposes it is to be filed” . Senator
Bayard replied: “ It refers to ‘existing law'1 as prescribing
the conditions. They shall each give bond with sureties
as required by existing law.” Senator Ingalls then asked:
“ The Senator then alludes to laws now in force.” Senator
Bayard replied: “ Yes, sir.” 7 Cong. Bee. 3663, 45th Cong.,
2d sess. (May 22, 1878). (Emphasis supplied.)

On one occasion during the debate on the bill which be
came the Organic Act of 1878, Senator Hoar of Massachu
setts arose “ to inquire whether there ought not to be, in the
tenth line, some provision binding on the collector as to the
time within which after collecting any particular sum of
money it should be paid into the Treasury” . Senator Dor
sey of Arkansas, who was then in charge of the bill on the
Senate floor, replied: “ That is provided for by existing
law.” 7 Cong. B,ec. 3749, 45th Cong. 2d sess. (May 24,
1878). (Emphasis supplied.) On another occasion, Sen
ator Edmunds of Vermont raised the question as to
whether the provisions of the bill relating to pavement of
streets (sec. 5 of 1878 Act) should exempt abutting prop
erty owners from paying assessments for such street im
provements. Senator Dorsey replied that “there is no
desire on the part of the committee, so far as I know, to
change any existing law in respect to that matter” . 7 Cong.
Bee. 3778, 45th Cong., 2d sess. (May 25, 1878). (Emphasis
supplied.) On still another occasion, the following colloquy
occurred between Senator Allison and Senator Ingalls (7
Cong. Bee. 3780, 45th Cong., 2d sess., May 25, 1878):

“ M b . A l l is o n . I desire to ask the Senator in charge
of the bill whether or not after abolishing the board of
Metropolitan police, the commissioners of the District
of Columbia will have authority to increase the police
force at will, or if that is fixed by existing laws; and
whether the police force can be increased without ac
tion of Congress?

Mb,. I n g a l l s . They are left under existing laws so
far as not inconsistent with this act and subject to the
limitation I have previously called the attention of the
Senate to, that all estimates of expenditures must be

A p p e n d ix F 13a

submitted by the commissioners to the Secretary of the
Treasury, approved by him and approved by Congress,
so that there is no possibility of any inordinate or
extravagant exercise of power.” (Emphasis supplied.)

A P P E N D IX F.

E x am p le s of B o y co tts of W a sh in g to n B ecause of I t s R ac ia l
D isc rim in a tio n .

1. Washington Evening Star, May 13,1949—“ New Jer
sey Students Spurn Trip Here, Cite Segregation”

‘ ‘ Springfield, N. J., May 13—The Senior class of a high
school here has voted down a trip to Washington, D. C.,
because of racial discrimination in the Capital, the
school’s principal said yesterday. . . . the attention of
school authorities to the ban on racial and religious
discrimination in New Jersey’s constitution . . . led the
students to vote to maintain the traditions of the
State.”

2. New York Times, May 14, 1943, and Time Magazine,
p. 27, May 24, 1948, reported that 51 school patrol boys of
New York would not come to the national patrol boys’ con
vention in Washington, D. C., because of the segregation
and discrimination to which some of them would have been
subjected. The New York Herald Tribune for May 15,
1948, editorialized on the above incident: “ It is about time
that Washington, our national city, lifted itself above the
regional. . . ”

3. Washington Post, August 12, 1949—“ Jersey Rules
Out Segregated Trips by School Pupils”

“ Trenton, N. J., Aug. 11 (UP)—The State Commis
sioner of Education today advised public school offi
cials it was illegal to send classes on trips where they
would be subject to racial segregation. Commissioner
John H. Bosshart specificallv mentioned Washington,
D. C___ ”

4. Philadelphia Inquirer, .June 22, 1950— “ B ia s B a rs
Class From Capital”

14a A p p e n d ix F

“ Peekskill, N. Y., June 21 (UP)—The Peekskill Board
of Education today banned all high school senior class
trips to Washington, D. C., because of ‘intolerance and
racial prejudice’ there. The Board took its action
after . . . an investigation of the situation in Washing
ton by Senator Herbert H. Lehman (D., N. Y.). ‘I find
the intolerance and racial prejudices which exist in the
Nation’s capital to be a shameful blot on our advocacy
of democracy upon the Nation as a whole,’ Lehman
told the school board in his letter.”

5. Washington Post, June 1 , 1950— Letter to the Editor
from Senator William Benton, Senator from Connecticut—
“ For the past several months I have sponsored a contest
on different problems for Connecticut high school students.
Originally, the prize for the winner of each contest was a
trip to Washington. But then I ran into the problem of
segregation here in the Nation’s Capital. That is why the
subject of the last contest was ‘Tolerance’ and why the
prize had to be a set of the Encyclopedia Brittanica.”

6. Washington Post, April 21, 1949— '“ AYC: Levels
Racial Pathway in Capital for 65 N. Y. Students”

“ Because its 103 members included one Negro, the
senior class of Spring Valley, N. Y., high school had
not expected to visit Washington this spring. Reports
of racial discrimination in the Nation’s capital had
reached north to the village near the Hudson. Unani
mously the class decided to cancel its planned trip
here.. . . ” The American Veterans Committee, amicus
curiae here, then made its Clubhouse available to _the
Spring Valley class and induced it to come to Washing
ton in a demonstration of how democracy ought to,
and can, work.

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