1. Under Art. I, § 8, cl. 17 of the Federal Constitution,
Congress had power to delegate its lawmaking authority to the
Legislative Assembly of the municipal corporation created by the
Organic Act of 1871 for the government of the District of Columbia.
Pp.
346 U. S.
104-110.
(a) The power of Congress under Art. I, § 8, cl. 17 of the
Constitution to grant self-government to the District of Columbia
is as great as its authority to do so in the case of territories.
Pp.
346 U. S.
106-107.
(b) The power of Congress over the District of Columbia relates
not only to "national power," but to all the powers of legislation
which may be exercised by a state in dealing with its affairs. P.
346 U. S.
108.
(c) The Constitution does not preclude delegation by Congress to
the District of Columbia of full legislative power, subject to
constitutional limitations to which all lawmaking is subservient
and to the power of Congress at any time to revise, alter, or
revoke the authority granted. Pp.
346 U. S.
108-109.
(d) In the provision of Art. I, § 8, cl. 17 of the Constitution,
empowering Congress "To exercise exclusive Legislation" over the
District of Columbia, the word "exclusive" was employed to
eliminate any possibility that the legislative power of Congress
over the District would be deemed concurrent with that of the
ceding states, and it does not make the power nondelegable. Pp.
346 U. S.
109-110.
2. Within the meaning of § 18 of the Organic Act of 1871, the
"rightful subjects of legislation" to which the legislative power
of the District of Columbia government extended was as broad as the
police power of a state, and included a law prohibiting
discriminations against Negroes by restaurants in the District of
Columbia. P.
346 U. S.
110.
3. In a criminal proceeding in the District of Columbia,
respondent was prosecuted for refusal to serve certain members of
the Negro race at one of its restaurants in the District of
Columbia solely on account of the race and color of those persons.
The information was in four counts, the first charging a violation
of the Act
Page 346 U. S. 101
of the Legislative Assembly of the District of Columbia, June
20, 1872, and the others charging violations of the Act of the
Legislative Assembly of the District of Columbia, June 26, 1873.
Each Act makes it a crime to discriminate against a person on
account of race or color or to refuse service to him on that
ground.
Held: the Acts of 1872 and 1873 survived subsequent
changes in the government of the District of Columbia, and are
presently enforceable, except that the Court does not reach the
question whether the 1872 Act was repealed by the 1873 Act, and
leaves that question open on remand of the cause to the Court of
Appeals. Pp.
346 U. S.
110-118.
(a) The Acts of 1872 and 1873 are not inconsistent with the Acts
of Congress of 1874 and 1878, and they survived the latter Acts.
Pp.
346 U. S.
110-111.
(b) The Acts of 1872 and 1873 were not repealed by the Code of
1901, since, as anti-discrimination laws governing restaurants in
the District, they are "police regulations" and acts "relating to
municipal affairs" within the meaning of the Third exception in §
1636 of the Code. Pp.
346 U. S.
112-113.
(c) The Acts of 1872 and 1873 were not abandoned or repealed as
a result of non-use and administrative practice. The failure of the
executive branch to enforce a law does not result in its
modification or repeal. Pp.
346 U. S.
113-115.
(d) The Acts of 1872 and 1873 merely regulate a licensed
business, and (with the possible exception of the provision making
mandatory the forfeiture of the license to operate a restaurant)
could not be modified, altered, or repealed by the exercise of the
licensing authority of the Commissioners. Pp.
346 U. S.
115-117.
(e) Cases of hardship, where criminal laws so long in disuse as
to be no longer known to exist are enforced against innocent
parties, do not bear on the continuing validity of the law; that is
only an ameliorating factor in enforcement. P.
346 U. S.
117.
92 U.S.App.D.C. 34, 203 F.2d 579, reversed.
In a criminal prosecution in the District of Columbia on an
information charging respondent with violations of Acts of 1872 and
1873 of the Legislative Assembly of the District of Columbia, the
Court of Appeals held the Acts unenforceable and ordered dismissal
of the information. 92 U.S. App. D. C. 34, 203 F.2d 579. This Court
granted certiorari. 345 U.S. 921.
Reversed and remanded,
p.
346 U. S.
118.
Page 346 U. S. 102
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a criminal proceeding prosecuted by information against
respondent for refusal to serve certain members of the Negro race
at one if its restaurants in the District of Columbia solely on
account of the race and color of those persons. The information is
in four counts, the first charging a violation of the Act of the
Legislative Assembly of the District of Columbia, [
Footnote 1] June 20, 1872,
Page 346 U. S. 103
and the others charging violations of the Act of the Legislative
Assembly of the District of Columbia, [
Footnote 2] June 26, 1873, Dist.Col.Laws 1871-1873, pp.
65, 116. Each Act makes it a crime to discriminate against a person
on account of race or color or to refuse service to him on that
ground.
The Municipal Court quashed the information on the ground that
the 1872 and 1873 Acts had been repealed by implication on the
enactment by Congress of the Organic Act of June 11, 1878, 20 Stat.
102. On appeal, the Municipal Court of Appeals held that the 1872
and 1873 Acts were valid when enacted, that the former Act, insofar
as it applies to restaurants, had been repealed, but that the
latter Act was still in effect. It therefore
Page 346 U. S. 104
affirmed the Municipal Court insofar as it dismissed the count
based on the 1872 Act, and reversed the Municipal Court on the
other counts.
81
A.2d 249. On cross-appeal, the Court of Appeals held that the
1872 and 1873 Acts were unenforceable, and that the entire
information should be dismissed. 92 U.S.App.D.C. ___, 203 F.2d 579.
The case is here on certiorari.
I
The history of congressional legislation dealing with the
District of Columbia begins with the Act of July 16, 1790, 1 Stat.
130, by which the District was established as the permanent seat of
the Government of the United States. We need not review for the
purposes of this case the variety of congressional enactments
pertaining to the management of the affairs of the District between
that date and 1871. It is with the Organic Act of February 21,
1871, 16 Stat. 419, that we are particularly concerned.
That Act created a government by the name of the District of
Columbia, constituted it "a body corporate for municipal purposes"
with all of the powers of a municipal corporation "not inconsistent
with the Constitution and laws of the United States and the
provisions of this act," and gave it jurisdiction over all the
territory within the limits of the District. § 1. The Act vested
"legislative power and authority" in a Legislative Assembly
consisting of a Council and a House of Delegates, members of the
Council to be appointed by the President with the advice and
consent of the Senate and members of the House of Delegates to be
elected by male citizens residing in the District. §§ 5, 7. The act
provided, with exceptions not material here, [
Footnote 3] that
"the legislative power of the District
Page 346 U. S. 105
shall extend to all rightful subjects of legislation within said
District, consistent with the Constitution of the United States and
the provisions of this act."
§ 18. All acts of the Legislative Assembly were made subject at
all times "to repeal or modification" by Congress. § 18. And it was
provided that nothing in the Act should be construed to deprive
Congress of "the power of legislation" over the District "in as
ample manner as if this law had not been enacted." § 18. Executive
power was vested in a governor appointed by the President by and
with the advice of the Senate. § 2. And it was provided that the
District should have in the House of Representatives an elected
delegate having the same rights and privileges as those of
delegates from federal territories. § 34.
This government (which was short-lived [
Footnote 4]) was characterized by the Court is a
"territorial government."
Eckloff v. District of Columbia,
135 U. S. 240,
135 U. S. 241.
The analogy is an apt one. The grant to the Legislative Assembly by
§ 18 of legislative power which extends "to all rightful subjects
of legislation" is substantially identical with the grant of
legislative power to territorial governments which reads:
"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."
R.S. § 1851.
The power of Congress over the District and its power over the
Territories are phrased in very similar language
Page 346 U. S. 106
in the Constitution. Article I, § 8, cl. 17 of the Constitution
provides that
"The Congress shall have Power . . . To exercise exclusive
Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the
Government of the United States."
Article IV, § 3, cl. 2 of the Constitution grants Congress
authority over territories in the following words:
"The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States. . . ."
The power of Congress to delegate legislative power to a
territory is well settled.
Simms v. Simms, 175 U.
S. 162,
175 U. S. 168;
Binns v. United States, 194 U. S. 486,
194 U. S. 491;
Christianson v. King County, 239 U.
S. 356,
239 U. S. 365.
The power which Congress constitutionally made delegate to a
territory (subject of course to "the right of Congress to revise,
alter, and revoke,"
Hornbuckle v.
Toombs, 18 Wall. 648,
85 U. S. 655),
covers all matters "which, within the limits of a state, are
regulated by the laws of the state only." [
Footnote 5]
Simms v. Simms, supra, 175 U.S. at
175 U. S.
168.
The power of Congress to grant self-government to the District
of Columbia under Art. I, § 8, cl. 17 of the Constitution
Page 346 U. S. 107
would seem to be as great as its authority to do so in the case
of territories. But a majority of the judges of the Court of
Appeals held that Congress had the constitutional authority to
delegate "municipal," but not "general," legislative powers, and
that the Acts of 1872 and 1873, being in the nature of civil rights
legislation, fell in the latter group, and were for Congress alone
to enact. In reaching that conclusion, the Court of Appeals relied
upon two decisions of the Court,
Stoutenburgh v. Hennick,
129 U. S. 141, and
Metropolitan R. Co. v. District of Columbia, 132 U. S.
1. The first of these cases involved an act of the
Legislative Assembly of the District imposing a license tax on
businesses within the District. The Court held, following
Robbins v. Shelby County, 120 U.
S. 489, that it could not be constitutionally applied to
a representative of a Maryland company soliciting orders in the
District of Columbia. The result would have been the same, as the
Robbins case indicates, had a state, rather than the
District, enacted such a law. So, while it is true that the Court
spoke of the authority of Congress to delegate to the District the
power to prescribe "local regulation" but not "general
legislation," those words in the setting of the case suggest no
more than the difference between local matters, on the one hand,
and national matters, such as interstate commerce, on the
other.
The second of these cases,
Metropolitan R. Co. v. District
of Columbia, 132 U. S. 1,
presented the question of the capacity of the District of Columbia
to sue. The Court held that it might do so, noting that, while the
District was "a separate political community," its sovereign power
was lodged in the Congress.
"The subordinate legislative powers of a municipal character,
which have been or may be lodged in the city corporations, or in
the District corporation, do not make those bodies sovereign.
Crimes committed in the District
Page 346 U. S. 108
are not crimes against the District, but against the United
States. Therefore, while the District may, in a sense, be called a
state, it is such in a very qualified sense."
P.
132 U. S. 9. But
there is no suggestion in that case that Congress lacks the
authority under the Constitution to delegate the powers of home
rule to the District.
The power of Congress over the District of Columbia relates not
only to "national power," but to "all the powers of legislation
which may be exercised by a state in dealing with its affairs."
Atlantic Cleaners & Dyers v. United States,
286 U. S. 427,
286 U. S. 435.
And see Stoutenburgh v. Hennick, supra, at
129 U. S. 147.
There is no reason why a state, if it so chooses, may not fashion
its basic law so as to grant home rule or self-government to its
municipal corporations. The Court in
Barnes v. District of
Columbia, 91 U. S. 540,
91 U. S. 544,
in construing the Organic Act of February 21, 1871, the one with
which we are presently concerned, stated:
"A municipal corporation, in the exercise of all of its duties,
including those most strictly local or internal, is but a
department of the State. The legislature may give it all the powers
such a being is capable of receiving, making it a miniature State
within its locality."
This is the theory which underlies the constitutional provisions
of some states allowing cities to have home rule. [
Footnote 6] So it is that decision after
decision has held that
Page 346 U. S. 109
the delegated power of municipalities is as broad as the police
power of the state, except as that power may be restricted by terms
of the grant or by the state constitution.
See McQuillin,
The Law of Municipal Corporations (3d ed. 1949), § 16.02
et
seq. And certainly, so far as the Federal Constitution is
concerned, there is no doubt that legislation which prohibits
discrimination on the basis of race in the use of facilities
serving a public function is within the police power of the states.
See Railway Mail Assn. v. Corsi, 326 U. S.
88,
326 U. S. 93-94;
Bob-Lo Excursion Co. v. Michigan, 333 U. S.
28,
333 U. S. 34. It
would seem then that, on the analogy of the delegation of powers of
self-government and home rule both to municipalities and to
territories, there is no constitutional barrier to the delegation
by Congress to the District of Columbia of full legislative power,
subject, of course, to constitutional limitations to which all
lawmaking is subservient, and subject also to the power of Congress
at any time to revise, alter, or revoke the authority granted.
There is, however, a suggestion that the power of Congress "To
exercise exclusive Legislation" granted by Art. I, § 8, cl. 17 of
the Constitution is nondelegable because it is "exclusive." But it
is clear from the history of the provision that the word
"exclusive" was employed to eliminate any possibility that the
legislative power of Congress over the District was to be
concurrent with that of the ceding states.
See The
Federalist, No. 43; Elliott's Debates, pp. 432-433; 2 Story,
Commentaries (4th ed. 1873), § 1218. Madison summed up the need for
an "exclusive" power in the Congress as follows:
"Let me remark, if not already remarked, that there must be a
cession, by particular states, of the district to Congress, and
that the states may settle the terms of the cession. The states may
make what stipulation they please in it, and, if they apprehend
any
Page 346 U. S. 110
danger, they may refuse it altogether. How could the general
government be guarded from the undue influence of particular
states, or from insults, without such exclusive power?"
Elliott's,
op. cit., supra, p. 433.
We conclude that the Congress had the authority under Art. I, §
8, cl. 17 of the Constitution to delegate its lawmaking authority
to the Legislative Assembly of the municipal corporation which was
created by the Organic Act of 1871, and that the "rightful subjects
of legislation," within the meaning of § 18 of that Act, was as
broad as the police power of a state, so as to include a law
prohibiting discriminations against Negroes by the owners and
managers of restaurants in the District of Columbia.
II
The Acts of 1872 and 1873 survived, we think, all subsequent
changes in the government of the District of Columbia, and remain
today a part of the governing body of laws applicable to the
District. The Legislative Assembly was abolished by the Act of June
20, 1874, 18 Stat. 116. That Act provided that the District should
be governed by a Commission. § 2. The Revised Statutes relating to
the District of Columbia, approved June 20, 1874, [
Footnote 7] kept in full force the prior laws
and ordinances "not inconsistent with this chapter, and except as
modified or repealed by Congress or the legislative assembly of the
District." § 91. Those Acts were followed by the present Organic
Act of the District of Columbia approved June 11, 1878, 20 Stat.
102, which provides that
"all laws now in force relating to the District of Columbia
not
Page 346 U. S. 111
inconsistent with the provisions of this act shall remain in
full force and effect."
§ 1. We find nothing in the 1874 Act nor in the 1878 Act
inconsistent with the Acts here in question. And we find no other
intervening act which would effect a repeal of them. Nor is there
any suggestion in the briefs or oral argument that the acts of 1872
and 1873, presently litigated, did not survive the Acts of 1874 and
1878. It indeed appears the Acts of 1874 and 1878 precluded the
repeal of these anti-discrimination laws except by an Act of
Congress. As
Metropolitan R. Co. v. District of Columbia,
supra, at
132 U. S. 7, says,
the "legislative powers" of the District ceased with the Organic
Act and, thereafter, municipal government was confined "to mere
administration."
The Commissioners by the Joint Resolution of February 26, 1892,
27 Stat. 394, were vested with local legislative power as respects
"reasonable and usual police regulations." [
Footnote 8] But there is no suggestion that their power
to make local ordinances was ever exercised to supplant these
anti-discrimination laws of the Legislative Assembly with new and
different ordinances. Rather, the argument is that the 1872 and
1873 Acts were repealed by the Code of 1901, 31 Stat. 1189. Section
1636 of that Code provides in part:
"All acts and parts of acts of the general assembly of the
Maryland general and permanent in their nature, all like acts and
parts of acts of the legislative assembly of the District of
Columbia, and
Page 346 U. S. 112
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 are hereby repealed, except: . . ."
"
* * * *"
"Third. Acts and parts of acts relating to the organization of
the District government, or to its obligations, 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,
including those regulating the charges of public service
corporations. . . ."
The Court of Appeals held that these anti-discrimination laws
were "general and permanent" legislation within the meaning of §
1636, and repealed by it, not being saved by the exceptions. The
Department of Justice presents an elaborate argument, based on the
legislative history of the 1901 Code, to the effect that the
anti-discrimination laws here involved were not "general and
permanent" laws within the meaning of § 1636. But the lines of
analysis presented are quite shadowy, and we find it difficult not
to agree that the 1872 and 1873 Acts were "general and permanent,"
as contrasted to statutes which are private, special, or temporary.
That is the sense in which we believe the words "general and
permanent" were used in the Code. We conclude, however, that they
were saved from repeal by the Third exception clause quoted
above.
It is our view that these anti-discrimination laws governing
restaurants in the District are "police regulations" and acts
"relating to municipal affairs" within the meaning of the Third
exception in § 1636. The Court of Appeals, in
United States v.
Cella, 37 App.D.C. 433, 435, in construing an Act providing
that prosecutions for
Page 346 U. S. 113
violations of penal statutes "in the nature of police or
municipal regulations" should be in the name of the District,
said,
"A municipal ordinance or police regulations is peculiarly
applicable to the inhabitants of a particular place; in other
words, it is local in character."
The laws which require equal service to all who eat in
restaurants in the District are as local in character as laws
regulating public health, schools, streets, and parks. In
Johnson v. District of Columbia, 30 App.D.C. 520, the
Court of Appeals held that an Act of the Legislative Assembly
prohibiting cruelty to animals was a police regulation saved from
repeal by the Third exception to § 1636. The court said it was
legislation "in the interest of peace and order" and conducive "to
the morals and general welfare of the community." 30 App.D.C. at
522. Regulation of public eating and drinking establishments in the
District has been delegated by Congress to the municipal government
from the very beginning. [
Footnote
9] In terms of the history of the District of Columbia, there
is indeed no subject of legislation more firmly identified with
local affairs than the regulation of restaurants.
There remains for consideration only whether the Acts of 1872
and 1873 were abandoned or repealed as a result of nonuse and
administrative practice. There was one view in the Court of Appeals
that these laws are presently unenforceable for that reason. We do
not agree. The failure of the executive branch to enforce a law
does
Page 346 U. S. 114
not result in its modification or repeal.
See Louisville
& N. R. Co. v. United States, 282 U.
S. 740;
United States v. Morton Salt Co.,
338 U. S. 632,
338 U. S.
647-648. The repeal of laws is as much a legislative
function as their enactment. [
Footnote 10]
Congress has had the power to repeal the 1872 and 1873 Acts from
the dates of their passage by the Legislative Assembly. But, as we
have seen, it has not done so.
Congress also has had the authority to delegate to a municipal
government for the District the power to pass laws which would
alter or repeal the Acts of the Legislative Assembly. As we have
seen, the Organic Act of the District of Columbia approved June 11,
1878, withdrew legislative powers from the municipal government. In
1892, the Commissioners were given legislative power as respects
"reasonable and usual police regulations." [
Footnote 11] That legislative authority could
have been employed to repeal the Acts of 1872 and 1873.
See
Stevens v. Stoutenburgh, 8 App.D.C. 513. For, as we have
noted, regulations of restaurants is a matter plainly within the
scope of police regulation. But the Commissioners passed no
ordinances dealing with the rights of Negroes in the restaurants of
the District. It is argued that their power to do so was withdrawn
by Congress in the Code of 1901. It is pointed out that the Code of
1901 kept in force the acts,
Page 346 U. S. 115
ordinances, and regulations not repealed; [
Footnote 12] and from that the conclusion is
drawn that only Congress could thereafter amend or repeal these
enactments of the Legislative Assembly.
We find it unnecessary to resolve that question. For, even if we
assume that, after the Code of 1901, the Commissioners had the
authority to replace these anti-discrimination laws with other
ones, we find no indication that they ever did so. Certainly no
ordinance was enacted which purported to repeal or modify those
laws or which, by providing a different measure of a restaurant
owner's duty, established a standard in conflict with that provided
by the Legislative Assembly.
But it is said that the licensing authority of the Commissioners
over restaurants has been employed for 75 years without regard to
the equal service requirements of the 1872 and 1873 Acts, that no
licenses have been forfeited for violations of those Acts, and that
the licensing authority of the Commissioners has been employed in
effect to repeal or set aside the provisions of those Acts. But
those regulations are health, safety, and sanitary measures.
[
Footnote 13] They do not
purport to be a complete codification of ordinances regulating
restaurants. They contain neither a requirement that Negroes be
segregated nor that Negroes be treated without discrimination.
The
Page 346 U. S. 116
case therefore appears to us no different than one where the
executive department neglects or refuses to enforce a requirement
long prescribed by the legislature.
It would be a more troublesome case if the 1872 and 1873 Acts
were licensing laws, which through the years, had been modified and
changed under the legislative authority of the Commissioners. But
these Acts do not provide any machinery for the granting and
revocation of licenses. They are regulatory laws prescribing in
terms of civil rights the duties of restaurant owners to members of
the public. Upon conviction for violating their provisions,
penalties are imposed. There is a fine and, in addition, a
forfeiture of license without right of renewal for a year. But
these Acts, unlike the sanitary requirements laid upon restaurants,
[
Footnote 14] do not
prescribe conditions for the issuance of a license. Like the
Page 346 U. S. 117
regulation of wages and hours of work, the employment of minors,
and the requirement that restaurants have flame-proof draperies,
[
Footnote 15] these laws
merely regulate a licensed business. Therefore, the exercise of the
licensing authority of the Commissioners could not modify, alter,
or repeal these laws. [
Footnote
16] Nor can we discover any other legislative force which has
removed them from the existing body of law.
Cases of hardship are put where criminal laws so long in disuse
as to be no longer known to exist are enforced against innocent
parties. But that condition does not bear on the continuing
validity of the law; it is only an ameliorating factor in
enforcement.
We have said that the Acts of 1872 and 1873 survived the
intervening changes in the government of the District
Page 346 U. S. 118
of Columbia and are presently enforceable. We would speak more
accurately if we said that the 1873 Act survived. For there is a
subsidiary question, which we do not reach and which will be open
on remand of the cause of the Court of Appeals, whether the 1872
Act, under which the first count of the information is laid, was
repealed by the 1873 Act. On that, we express no opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Section 3 of this Act provides as follows:
"That any restaurant keeper or proprietor, any hotel keeper or
proprietor, proprietors or keepers of ice-cream saloons or places
where soda-water is kept for sale, or keepers of barber shops and
bathing houses, refusing to sell or wait upon any respectable well
behaved person, without regard to race, color, or previous
condition of servitude, or any restaurant, hotel, ice cream saloon
or soda fountain, barber shop or bathinghouse keepers, or
proprietors, who refuse under any pretext to serve any well
behaved, respectable person, in the same room, and at the same
prices as other well behaved and respectable persons are served,
shall be deemed guilty of a misdemeanor, and upon conviction in a
court having jurisdiction, shall be fined one hundred dollars, and
shall forfeit his or her license as keeper or owner of a
restaurant, hotel, ice cream saloon, or soda fountain, as the case
may be, and it shall not be lawful for the Register or any officer
of the District of Columbia to issue a license to any person or
persons, or to their agent or agents, who shall have forfeited
their license under the provisions of this act, until a period of
one year shall have elapsed after such forfeiture."
[
Footnote 2]
Sections 1 and 2 of the 1873 Act provide for the posting of a
schedule of prices by restaurants and other eating or drinking
establishments and for the filing of those schedules with the
Register of the District. Section 3 provides in part:
"That the proprietor or proprietors, keeper or keepers, of any
licensed restaurant, eatinghouse, barroom, sample room, ice cream
saloon, or soda fountain room shall sell
at and for
the usual
or common prices charged by him, her,
or them, as contained in said printed cards or papers, any article
or thing kept for sale by him, her, or them to any well behaved and
respectable person or persons who may desire the same, or any part
or parts thereof, and serve the same to such person or persons in
the same room or rooms in which any other well behaved person or
persons may be served or allowed to eat or drink in said place or
establishment. (Italics supplied.)"
Section 4 of the Act provides for a fine of $100 and the
forfeiture of the license and a prohibition against its reissuance
for a period of one year after the forfeiture.
[
Footnote 3]
The limitations imposed on the States by Art. I, § 10 of the
Constitution were made applicable to the District. § 18. The
Legislative Assembly was denied the power to pass designated
"special laws" including the granting of divorces, the remission of
fines, penalties, or forfeitures, changing the law of descent,
creating any bank of circulation, or authorizing the issuance of
notes for circulation as money or currency. § 17.
[
Footnote 4]
The Temporary Organic Act of June 20, 1874, 18 Stat. 116,
substituted a temporary government of three Commissioners appointed
by the President. This form of government was placed on a permanent
basis by the Organic Act of June 11, 1878, 20 Stat. 102.
An account of the "territorial government" is contained in
Washington Past and Present -- A History (1930), vol. 1, pp.
130-141.
[
Footnote 5]
This Court has sustained the validity of territorial statutes
dealing with a variety of subjects:
Clinton v.
Englebrecht, 13 Wall. 434 (regulation of the
methods of obtaining jury panels);
Snow v.
United States, 18 Wall. 317 (provision for an
attorney general, elected by the territorial legislature, to
represent the territory and to prosecute crimes against its laws);
Hornbuckle v.
Toombs, 18 Wall. 648 (regulation of civil procedure
in the courts);
Maynard v. Hill, 125 U.
S. 190 (statute granting divorce);
Cope v.
Cope, 137 U. S. 682
(regulation of intestate succession of property);
Atchison, T.
& S.F. R. Co. v. Sowers, 213 U. S. 55
(limitation on the right to sue for personal injuries);
Christianson v. King Company, 239 U.
S. 356 (provision for escheat).
[
Footnote 6]
See Ariz.Const., Art. XIII, § 2; Calif.Const., Art. XI,
§ 11; Colo.Const., Art. XX, § 6; Mich.Const., Art. VIII, § 21;
Minn.Const. Art. IV, § 36; Mo.Const., Art. VI, § 19; Neb.Const.,
Art. XI, §§ 2-4; New York Const., Art. IX, § 12; Ohio Const., Art.
XVIII, § 3; Okla.Const., Art. XVIII, § 3(a); Ore.Const., Art. XI, §
2; Tex.Const., Art. XI, § 5; Wash.Const., Art. XI, § 10;
W.Va.Const., Art. VI, § 39(a); Wis.Const., art. XI, § 3.
And
see Fordham and Asher, Home Rule Powers in Theory and
Practice, 9 Ohio State L.J. 18; McGoldrick, The Law and Practice of
Home Rule (1933).
[
Footnote 7]
Although the compilation of these statutes carries the notation
"Approved June 22, 1874," it appears that the President actually
approved the bill on June 20, 1874.
See House Journal,
43rd Congress, First Sess., pp. 1286-1287.
[
Footnote 8]
Section 2 of that Act authorized the Commissioners
"to make and enforce all such reasonable and usual police
regulations . . . as they may deem necessary for the protection of
lives, limbs, health, comfort, and quiet of all persons, and the
protection of all property within the District of Columbia."
The earlier Act of January 26, 1887, 24 Stat. 368, had given the
Commissioners authority to make and enforce "usual and reasonable
police regulations" over specified matters.
[
Footnote 9]
See Act of May 3, 1802, 2 Stat. 195 (empowering the
City of Washington to provide for the licensing and regulation of
"retailers of liquors"); the Act of February 24, 1804, 2 Stat. 254
(authorizing the council of the City of Washington "to license and
regulate, exclusively, hackney coaches,
ordinary keepers,
retailers, and ferries"); the Act of May 15, 1820, 3 Stat. 583
(authorizing the council of the City of Washington to provide "for
licensing, taxing, and regulating, auctions, retailers,
ordinaries"). (Italics supplied.)
[
Footnote 10]
See Snowden v. Snowden, 1 Bland 550, 556 (Md.);
Pearson v. International Distillery, 72 Iowa 348, 357, 34
N.W. 1.
We are not concerned here with the type of problem presented by
Federal Trade Commission v. Bunte Bros., 312 U.
S. 349,
312 U. S. 352,
where want of assertion of power was deemed significant in
determining whether the power had actually been conferred. In the
present case, the fact that there have been no attempts over the
years to enforce the 1872 and 1873 Acts is irrelevant to the
problem of statutory construction, since there is no doubt that
those Acts made unlawful the refusal to serve a person in a
restaurant in the District of Columbia because he was a Negro.
[
Footnote 11]
See note 8
supra.
[
Footnote 12]
Section 1636 provided:
"All acts and parts of acts included in the foregoing
exceptions, or any of them, shall remain in force except insofar as
the same are inconsistent with or are replaced by the provisions of
this code."
Moreover, § 1640 provided,
"Nothing in the repealing clause of this code contained shall be
held to affect the operation or enforcement in the District of
Columbia . . . of any municipal ordinance or regulation, except
insofar as the same may be inconsistent with, or is replaced by,
some provision of this code."
[
Footnote 13]
Congress has granted to the Commissioners authority to license
certain businesses, including restaurants. D.C.Code (1951) §§
47-2301, 47-2327. The Commissioners are authorized to promulgate
regulations governing the issuance and revocation of such licenses.
Id., § 47-2345.
The Commissioners, in the Police Regulations of the District of
Columbia (1944), have provided various regulations of restaurants,
e.g., a requirement that a certificate be obtained from
the health officer that the "premises are in proper sanitary
condition," Art. XVII, § 19; regulation pertaining to garbage
disposal, Art. XXI, §§ 2, 3; a requirement that draperies and
decorations in restaurants be fireproof, Art. XVII, § 2. The
Commissioners, on April 1, 1942, promulgated
"Regulations Governing the Establishment and Maintenance of
Restaurants, Delicatessens, and Catering Establishments in the
District of Columbia."
These regulations, as amended February 23, 1951, impose various
sanitation requirements relating to the structures, fixtures,
utensils, and personnel employed in restaurants. They provide for
revocation of licenses for failure to comply with the regulations
and impose a fine of $300 for violations.
Congress has also provided numerous health measures to regulate
the sale of food.
See D.C.Code (1951) § 33-101
et
seq.; § 22-3416
et seq. Restaurants which sell
alcoholic beverages are regulated under D.C.Code (1951) § 25-101
et seq.
[
Footnote 14]
See note 13
supra.
[
Footnote 15]
See note 13
supra.
[
Footnote 16]
The 1872 and 1873 Acts make mandatory the forfeiture of the
license to operate a restaurant once a violation has been
established.
See notes
1
and |
1 and S.
100fn2|>2,
supra. More recent laws enacted by Congress
state the terms on which licenses of various establishments,
including restaurants, may be granted and revoked.
See
D.C.Code (1951) §§ 47-2301, 47-2302, 47-2327, 47-2345. Sec. 47-2345
grants the Commissioners authority to revoke a license
"when, in their judgment, such is deemed desirable in the
interest of public decency or the protection of lives, limbs,
health, comfort, and quiet of the citizens of the District of
Columbia, or for any other reason they may deem sufficient."
Special provisions are also included for the licensing of
persons selling alcoholic beverages, and for the revocation of
those licenses. D.C.Code (1951) §§ 25-111, 25-115, 25-118. Whether
the provisions for forfeiture of licenses contained in the 1872 and
1873 Acts have been modified or superseded by the licensing
provisions of those laws is a separate and distinct question on
which we intimate no opinion. Even if it were held that the basis
for revocation of a restaurant owner's license and the procedure by
which that revocation is effected are governed by the later laws,
it is clear that the new licensing laws leave unaffected the
mandate against discrimination on racial grounds and the provision
for a fine of $100 contained in the 1872 and 1873 Acts.