Filippo v. REAL ESTATE COM'N OF DISTRICT OF COLUMBIA

MYERS, Associate Judge

(dissenting):

I am unable to agree with the conclusion of my colleagues that the Commissioners of the District of Columbia, relying on the authority granted them by a Congressional Joint Resolution adopted in 1892 to issue “reasonable and usual police regulations,” did possess the power to make and promulgate in 1963 “fair housing” regulations for the District of Columbia under which petitioner’s license as a real estate broker was suspended by the Real Estate Commission of the District of Columbia for violation thereof.

Whether discrimination in the sale or rental of real property on the basis of race, color, creed or national origin should be banned in the District of Columbia is not for the courts to decide but is a matter for legislative determination. Whether such legislation is either necessary or Constitutional has been discussed and debated widely, heatedly and vigorously- — with equal sincerity by those who favor such legislation and those who oppose it. The final results of these efforts both for and against it have yet to be fully measured and made known both at national and state levels. 1 My dissent is not directed to the merit or legality of “fair housing” regulations as such, but questions the authority of the Commissioners of the District of Columbia to adopt and promulgate such regulations in this jurisdiction without either direct or indirect authority from Congress to do so. In my opinion, the legislative history of the enabling Resolution of 1892, the cases which have construed the Commissioners’ power, and the continued recognition by both the Commissioners and Congress of the inherent limitations on the power authorized by the Resolution, compel the conclusion that adoption of a “fair housing” policy to be enforced in the District of Columbia is solely within the province of Congress as the determinative legislative body of the District of Columbia.

The Commissioners possess no powers of legislation except such as are derived from Congress which exercises sovereign plenary power over the District as expressly delegated by Art. I, § 8, clause 17 of the Constitution. Congress has unlimited jurisdiction to provide for every purpose of municipal government, including the general welfare and protection of all citizens and their property within the District of Columbia. This overall, sweeping power is comparable to the powers which the legislature of a state may exercise within that state, as well as the power of the state itself. This Congressional authority includes the right to define the power of the Commissioners to enact regulations incidental to the control and ownership of personal and real property by local residents.

Prior to 1892 the Commissioners were vested with little legislative authority, re *275 quiring Congress itself to adopt, enact or promulgate many ordinances and regulations relating to the government of the municipality. To lessen the burden which thus devolved upon Congress, a Joint Resolution in 1892 delegated to the Commissioners authority

to make and- enforce all such reasonable and usual police regulations in addition to those already made under the act of [1887] 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. 27 Stat. 394 (1892). [Emphasis supplied.]

The majority opinion takes the view that by virtue of this Resolution the Commissioners had the authority, under the guise of the exercise of reasonable and usual police power, to issue and enforce regulations affecting substantial rights of citizens in the District of Columbia. I do not agree. “Fair housing” legislation is, to say the least, a subject both explosive in nature and difficult of solution by fair and Constitutional methods — a subject which has posed almost insurmountable difficulty to state legislatures and Congress. It is inconceivable that •by the Resolution of 1892 Congress intended "to give the Commissioners authority to issue regulations which would have such an impact upon the rights of property ownership in the District of Columbia and of the freedom of its citizens to contract — rights protected by Constitutional safeguards. Certainly regulations of this character, which must necessarily contemplate a compromise between competing Constitutional and statutory protections, should be left not to the determination of three Commissioners but to the careful research, study, deliberation and decision of Congress as the District’s legislative body.

In this connection, attention is called to a hearing held on March 28, 1963, by a subcommittee of the House Committee on the District of Columbia, at which the Commissioners and the Corporation Counsel for the District of Columbia were present by invitation. 2 The members present expressed serious doubt that Congress had in fact and in law delegated authority to the Commissioners to promulgate regulations which would directly or indirectly limit the rental or sale of private property. 3 The Commissioners were asked to suspend and defer adoption of any such regulations pending full and complete hearings and consideration by the 88th Congress of this very controversial and important proposal, “a matter of serious import * * * which fully justifies mature and deliberate consideration on the part of all of us who have the responsibility in connection with the government of the District of Columbia.” 4 The Commissioners frankly advised the sub *276 committee that they would defer further action only until Congress had the opportunity to legislate in the matter; that if the Committee determined there was no need for such legislation and Congress refused to legislate, they planned to promulgate their own regulations. Subsequently, on December 31, 1963, the Commissioners put into effect the “fair housing” regulations which are the basis for the present suspension action against petitioner.

I cannot find from the record any real or substantial relationship between the “fair housing” regulations and the objectives of “usual and reasonable police regulations” to protect “lives, limbs, health, comfort and quiet of all persons and * * * of all property” in the District of Columbia, except through a strained, unrealistic interpretation of the Resolution of 1892. By my colleagues’ approval of the broad interpretation given to this Resolution by the District of Columbia Commissioners, almost anything desired by the Commissioners could be promulgated as the exercise of police power, even when, as here, Congress has shown a disinclination to approve legislation in the same area. The effect of these “fair housing” regulations, issued under the shibboleth of antidiscrimination regulations, goes far beyond the “usual” or “reasonable” police regulation authorized or intended under the Joint Resolution of 1892. 5

Respondent concedes that when Congress has acted on a subject, no attempt at further legislation by the Commissioners in that area would be valid. It is my opinion that Congress has already preempted the field covered by the scope of the “fair housing” regulations. The passage by Congress of many acts and resolutions governing the possession, sale and rental of privately-owned property in the District of Columbia (and the many related phases of real estate operation here, such as titles, conveyancing, licensing and disciplinary supervision of real estate brokers and salesmen) lends support to my position that the Commissioners may not concurrently regulate the transfer of title or possession of real estate.

Furthermore, in view of the unique role of Congress as the duly empowered legislative body for the District of Columbia, any doubt respecting the extent of the legislative authority delegated to the Commissioners must be resolved in favor of nondelegation. To prevent an unintentional usurpation of the plenary powers of Congress, a strict interpretation of any ambiguous language defining the limits of delegated authority is compelled. 6

The majority relies upon the Supreme Court decision of District of Columbia v. John R. Thompson Co., 346 U.S. 100 , 73 S.Ct. 1007 (1953). Thompson rested not upon the Joint Resolution of 1892 but upon a statute prohibiting discrimination in public restaurants enacted by the Legislative Assembly for the District of Columbia, a body duly empowered to consider and pass bills extending “to all rightful subjects of *277 legislation” within the District. 7 * Although all legislation of the Assembly was generically repealed by Congress in 1901, the repealing act provided exceptions, including:

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. 8

In Thompson the Supreme Court held that the antidiscrimination statute enacted by the Legislative Assembly could he sustained as a “police regulation,” pointing out that:

Regulation of public eating and drinking establishments in the District has been delegated by Congress to the municipal government from the very beginning. 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. [Footnotes omitted.] 9

While regulation of restaurants may be “usual” and related to municipal affairs, Thompson is not applicable to the case at bar involving regulation of the sale and rental of real property since the 1892 Resolution makes no provision for such broad and far-reaching legislation restraining and restricting individual rights in the ownership of property. The enabling language of the Joint Resolution is narrower in scope than the antidiscrimination statute in Thompson and the “police regulations” reasonably contemplated thereunder are necessarily of a more restricted quality and nature. Thompson does make clear, however, that the delegation of legislative authority by Congress to the District of Columbia must be subject to Constitutional limitations and that the use of such delegated power must be grounded upon “reasonable and usual police regulations.” In the light of the lesser grant of authority to the Commissioners than to the Assembly, I am persuaded that Thompson is inapplicable as a controlling definition of “reasonable and usual police regulations” for the proposition here before us.

For the above reasons I would hold that the promulgation of “fair housing” regulations by the Commissioners on December 31, 1963, was without valid legislative authority; that such regulations are, therefore, illegal and void; and that the order issued by the District of Columbia Real Estate Commission suspending the license of petitioner for forty-five days was null and void and should be reversed.

. See generally, Avins, Open Occupancy vs. Forced Housing Under the Fourteenth Amendment: A Symposium on Anti-Discrimination Legislation, Freedom of Choice, and Property Rights in Housing (1963); Pearl & Turner, Fair Housing Laws: Halfway Mark, 54 Geo.L.J. 156 (1965).

. See Hearing before Subcommittee 6 of the Committee on the District of Columbia of the House of Representatives on Proposed District of Columbia Antidis-crimination Regulations Relating to the Sale or Rental of Private Property, March 28, 1963.

. A report submitted to Subcommittee 6 of the House Committee on the District of Columbia by the Committee’s legislative research staff states:

A study of Acts of Congress, enacted both before and after the date of the act of February 27, 1892, shows clearly that neither the Congress nor the Commissioners have considered that any such broad delegation of police powers, as is so claimed was intended or made. The Congress has repeatedly enacted legislation employing the police powers for purposes much narrower in scope, and the Commissioners of the District have repeatedly requested legislation of similar narrower scope than that involved in the proposed antibias regulations.

Id. at 23.

The report then follows with a comprehensive listing of certain sections of the District of Columbia Code, of bills which were not enacted, and of legislation pending in 1963 before the same Committee. All were much narrower and of less import than the fair housing regulations; all were the subject of requests by the Commissioners for Congressional action.

.Id. at 2.

. In addition, there is serious question as to the legality of any regulations promulgated under that section of the Joint Resolution of 1892 which grants general police power to the Commissioners. The records of Congress, and of each House, indicate that a discrepancy existed in the versions of the bill approved by the Senate and the House of Representatives. See 23 Cong.Rec. 1132, 1316, 1328, 1384, 1402, 1471 (1892); S.Jour., 1st Sess., 52nd Cong., 111, 117, 123, 126 (1892); H.R. Jour., 1st Sess., 52nd Cong., 74, 77-78 (1892). See also Opinion of Milton D. Korman, Acting Corporation Counsel, to the Commissioners of the District of Columbia, November 13, 1962; Hearing, supra note 2, at 20-21. If, in fact, the delegation of police power was improperly enacted, whether acquiescence and time have cured any Constitutional defect under Field v. Clark, 143 U.S. 649 , 12 S.Ct. 495 , 36 L.Ed. 294 (1892), is not properly before the court at this time.

. Cf. The Binghamton Bridge (Chenango Bridge Co. v. Binghamton Bridge Co.), 3 Wall. (70 U.S.) 51 (1866); 3 Sutherland, Statutory Construction §§ 6401, 6402, 6501 n. 8-9 (1943).

.Organic Act of February 21, 1871, § 18, 16 Stat. 419 ; 346 U.S. at 105 , 73 S.Ct. 1007 .

. Code of 1901, § 1636, 31 Stat. 1189 ; 346 U.S. at 112 , 73 S.Ct. 1007 .

. 346 U.S. at 113 , 73 S.Ct. at 1007 .