Brief for the Respondent in Opposition to Petition for Writ of Certiorari — District of Columbia v. John R. Thompson Co.

zones

ress eee ae

aa

Pet

ot a i at SET Ea cat A

cme wer ws

; Bae

“lower

piles Ws

°

INDEX.

Z ;

es | : SvupsEcr Ixpex. \

| : oe Page

Question presented ........ cha pageant mney aap 1

Petitioners: specifications of errors. ...... Fire joaaoee ira

Reasons for denying the Writ ake wes ge ee Fe cseees: =O

,b Even were the- writ) granted, * this Honorable

Court’ would not consider the constitutional —.

issue claimed to be involved ..... Se Ee an

‘TL. The only specification of error reflecting a prop-_

osition in which a majority of the Court of

Appeals concurred does not involve a question |

of national or. general ‘importance. ........... 9

IL. Petitioner is seeking an advisory opinion» upon

a hypothetical case’ W hich ay never arise.... 10°

LV. The opinion of the Court ¢ ’ Appeals does not

— rule upon the issue of = RI versus Non-

semrewation, § «..3. sieves ce MUMOE aah atts ca webs 12

V. The claim-oef petitioner and Amicus that the

subject matter of this case is of great national

importanee and should ‘be reviewed is inéon-

sistent with their position on the merits _ eae ae Gg 12

VI. The opinions of the majority of the’ Court of

. Appeals are in aecord with previous rulings of

this Honorable Court. and with previous

‘decisions. of the Courts of the sila i of

(sfimbia ee et ara arcs gael a mat a peace ee

Conciusion ....... SURE Cpr ery ope eee ea ti neues “a

ala ° . F

TABLE’ OF CASES

Alabama State” Fedeation of. Labor ve MeAdory,

"325 DU. 8S. 460 . 25235 PEP A Oe des cee pa ae ry aoe sere ii

Alpaugh v. Wolverton, 184 Va. 943,36 S.E. 2d 906, a

Asbury Hospital v. Cass County, 826 U.S. 101 221, 10511

Barker Painting Co. v. Brotherhood, 281 UeS. 462... 10

Barnes v. District of Coboibia, 91 USS. 540 2. 13,14 |

\

il \ Index Continued.

| me | Page

Binns v. United Wide 194 U, g, BE Sis eh ce eee

Busby os ra ang Utilities Employees Union,

BRU Fe Fs ocr ewe ete e Pak ee eek ee ee peptakees 10, 11

Central N ft Bank v. ‘Dallas Bank &: Trust C6., 66 S. W.

Bd 474 (Tex. Civc BOD). oo cccenscucpuncccevadus 8

Coughlin v. District of Columbia, 25 App. D.C. O31. 6 .

District.of Columbia v. Pace, 320 U.S, 698 .......--. 8, 10

District of Columbia vy. Robinson, 30 App.-D. C. 283 . 9

District of Columbia v. Saville, ? MocAtther (8 D.C. )

dle well v. Knight, 123 U.S. 426, 432, 433, "Rs 11

Lowden v. Northwestern Nat. Bank & T. Co., 298 U.S...

<n WaT aso cys Vee cn ale ae ee ok ee ay ad ee 11

_ Metopolitan Railroad Co. v. District of Coluinbia, 132

\ ia ME wee pads wu Wckee as sce eee e haus rabiedeen ee 13

Nance ‘v. Mayflower Tavern, 106 Utah 917, 150 P. 2d”

A > RRR ere by ap are ny en eee mr 5, Sn

Panama Re fining Co. v.. Ryan, 293.U. S. 388 ........,.- 14

Patrick v. Smith, 60 App. D, C. 6, 45-F. 2d 924 ...... le

Pelliam v: Rose, 9 Wall (U. S.) 103, 107 ............ 11

-Reese.v. Cobb, 105 Tex. 399, 408, 150 S.W. 887, 889... 9

Roach v. Van Riswick, Mae Arthur & M (11 D.C.) 171. .6, 14

Schecter v. United States, 295 rs oe Oe cet cvedeunes 14...

Smith v. Oleott, 19 App.. D. C, 61 ...........66-. 6,12, 14

Southern Ry. Co. v. Inman, i “Gs. App. 564, 75 S. #.

‘ Spector Motor Service v. McLaughlin, 323 U. 8. 101. 1

Siouke nburgh v. Hennick, 129 U.S. 141 ............ 13, 14

Triplett v. Lowell, 297 U.S. 638, 647, OO ssseeeccss ¢ ‘il

United States v. Buzzo, 18 Wall (U. S.) 125, 129..... 11

United States v. Cella, 37 App. “* C. De cvesreulaees 6

Webster v. Cooper, 10 How. (U. 8S.) 54 .....6..4..0.. -i1

White v. Johnson, 252 U, 8. 367,878 :......-..6.0.. "

Willing v. Chicago Auditorium Asso., 277 U.S. 274 .. 10

Yakus v. United States, 32] is ie GN EO ek cb tenes 5

CONSTITUTION

( onstitution of the U nited States,.

yy ae Ney ES ae ee ee ae Ae eee ial aca eee eee Ee ae

_.Constitution of the United aac Ait. EV, See.3..... 15

- Index Continued. il

Page

: ‘" STATUTES

( Act of June 20, 1872. of Legislative Assembly of

(ee Gay. cea | Lies F So eZ

oes bs 8,9, 12

Act.of June 26, 1873 of Legislative Assembly ef

‘A are kone. ST PET rae s+ oes 25 4, 9, 6, @,

| 8, d, 12

Civil Rights Aet of 1875 (18. Stat. RE kein es ake D

Organie Act of June 11, ‘1878 (20 Beet. WS) osc cctes 9

District of Columbia ¢ ‘ode of 1901, Act of, March 3, 1901 |

Coes SG 0 Eo a ken ve a0 ee bN'a too e ba 2, 3, 4, 7, 8, 9, On

Ale ‘oholic Beverage Control Act: . es

Act of Congress of Jan. 24, 1934 (48, Stat. 319);

So ‘ode (1951). $$ 25- 101 fe sii °. 9

General License Law of the Distriet»of Columbia:

~ Aet of Congress July 1, 1902 (32 Stat. 622) .0...... . 2

~Act of Congress July 1, 1932 (47-Stat. 550 ........ 9

$$ 4¢-—-2 301 ef seq. of the District of ¢ ‘olumbia Code ;

(1951) ise adits outlay Gta ala wus gs Sheu dite wa a ole es . 9

en of Columbia € ode, PEE acdc danak vee, eae

MISCELLANEOUS

Beale, Innkeepers and Hotels, 1906, .§ §§$ 15, 35, 53, 61,

ME, Sesteascivens sewed) TT RIEL Eee UE LEE a

43 C.I.S. Innkeepers, § 2, P. 1136 feet eo

Williston, Contraets (Rev. Bd. v. +, § * 966, pp. 2964,

sg Pe TEE ee LT eee ee ee Pe PP ee Bs)

Report of the Sateckainitien on Home Rule and Re-

organization, Committee onthe District of Columbia

of the House of Representatives on H.R. 6227, SOth |

Con., 2d Séss., April 5, 1948 ..... (vate ove. | eee

Joint Hearings hefore the: Subcommittee Tlome

~_* Rule and Reorganization of the Senate and House

Committees on the Distriet of ( ‘olumbia, 80th Cong.,

2d Sess. si eles env eens TSG. rats Gray eC I aa ae 13n

Hearings hefeve Sube ommittee on Sonic Rule. pa Re-

organization of the Conmittee on the District of

Columbia of the House, of Representatives, S0th

(Cong., 1st og a as eee ae ee Spied BALA: Seana ee ae One

-

IN THE

Supreme Court of the Gnited States

October Term, 1952.

District or Cotumpi, Petitioner,

v.

Jouy R. THomrson Company, Ivc., Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION.

FOR A WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate J ustices

of the Supreme Court of the Umted States:

_ The Respondent, John R. Thompson Company, by’ its:

counsel, opposes the. granting of a Writ of Certiorari to

the United States Court of Appeals for the District of

Columbia ‘Ciréuit: for the reasons hereinafter stated.

: QUESTION PRESENT ED

Should this Honorable’ Court review the decision of the

United States Court of Appeals. for the, District of C ‘olam-

hia Cireuyt that the Acts of the ‘Le vislative Assembly of

the District of Cokunrbia of June 20, 1872, and June 26,

"1873, which, ‘among other things, provided. for a One

ov

9)

: _

One Hundred Dollar fine and fintdisure of license for re-

fusal by a restaurant to serve all respectable well-behaved

persons, without regard to race, color, or prev ious candi-

tion of servitude, are not now in force because (1) as the

Chief Judge and three Circuit Judges ruled, they, were

legislation ‘arid therefore could not hive been enacted, by

the Legislative Assembly, or im any event, that they had

_ been expressly repealed by the District, of ¢ ‘olumbia Code .

of 1901, 31 Stat. 1189, or (2) as another Circuit Judge *

. ruled, were either ae and so initially invalid, or

subsequently repealed, or were municipal regulations

which had been abandoned by seventy-nine years of disuse,

‘or repealed by im/plication. .

PETITIONER'S SPECIFICATIONS’ OF ERRORS |

Pe (licner’s Specifications of Errors to be U rged, found

on page 6 of its brief, are-five in number. ~The first isa

conclusion, that petitioner does not agree with the -result

| of the: judgment below, Of the remaining four spec ifica-

tions only one, specification (4), reflects a proposition con- |

eurred in by a majority of the Court of Appeals; Circuit

Judge Prettyman, in concurring in the judgment, did not

find it necessary to rule upon the propositions reflected in-

specifications (2), (3) and (5) (R. 89). The only specifica-

tion of error, therefore, which has any basis in the record

is, in the words of the petitioner:

The United States Court of Appeals for the District of

Columbia Cireuit erred in holding. that the Acts of the

Legislative Assembly are presently a

either because they were repealed, or ‘abandoned ”’

“Itis seumiaaeeis position that the Court of Appeals did

not so err, and that the case presented to this Honorable *

court is not such as merits review upon Writ.of C ertiorari.

>

9

REASONS FOR DENYING THE WRIT

Even: Were the Writ Granted, This Honorable Court Would

Not Consider ‘the Constitutional aos ‘Claimed to be

Involved.

Petitioner urges on page 9 of its brief that the writ be

‘granted so that this Court may express an opinion as. to

how much, if any, of its législative power concerning the

District of &’olumbia, pursuant to Article I, Section §, »

the Constitution of the United States, Congress could,

it should see fit in the future, delegate to a loeal governing

body. -Even were the writ _granted,, however, this Honor- |

able Court would not express an opinion on this question of

constitutional law. . With wisdom, this Court has followed

the principle that it will not express itself upon questions -

of constitutional interpretation in cases which can, be dis-

posed’of upon general principles of law, or upon accepted

criteria-ef statutory or regulatory interpretation. Spector~

’ Motor’ Service v: McLaughlin, 323 U. S. 101; Asbury

Hospital v. Cass County, 326 U, 8. 207. As this Court said

in the Spector Motor Service case:

If there is one doctrine more “deeply rooted than pny

other in the process of constitutional adjudi¢ation, it

is that we oyght not to pass on y prnagese of constitu-

tionality-—here the distribution of the taxing power as

between the State. and. the N: ation—unless such

adjudication is unavoidable.

The case at har may de disposed of upon a single ground

which does not. involve any constitutional question, namely,

the interpretation and construetioni of the repealing pro-—

visions of the District of Columbia Code of 1901, Act of

March 3, i, 1091 (31 Stat. 1189). Section 1 of that. Code pro-

Vv ided that: t :

The common law, all: British statutes in force i in Marvy-

land on the twenty-seventh day of Febr uary, eighteen

hindred and one, the principles of equity and

.

‘+ admiralty, all generak acts of Congress not locally in-

applieable in the Distriet of Columbia, and all acts of

‘Congress by their terms applicable to the District of |

Columbia and to other places under the jurisdiction, of

the United States, in force at the date of the passage

of this act shall remain in force except in so far as the

same are inconsistent with, or are replaced by, some

provision of this code.

It will be observed that this section did not preserve the

acts of the Legislative Assembly. Secticn 1636 of the Code,

however, provided in part as follows: | i

All acts and parts of aets of the general assembly of

‘the State of Maryland general and permanent in their

nature, all like acts,and parts of aets of fhe legislative,

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 are hereby repealed

excents “Rr ape 8 |

‘ Then followed eleven exegptions, only three of which, the’

third, the fifth, and the eighth, aré material here. ;

The third exception reads: —

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 Coluinbia, or their subordinates or eniployees, or to

police regulations, and generally all acts and parts of

acts relating to mynicipal affairs only, including those

regulating the charges of publie-service corporations.

The Acts of 1872 and 1873 were legislation, not ‘police

regulations’’.. They -were, in fact, civil rights legislation.

These Acts defined ar denounced a new offense. That: is,

they provided Cli exercise of certain rights thereto-

fore enjoyed by restaurant proprietors and others should

thereafter constitute a crime. Théir purpose was to. alter

the mores of the people of the District. of (olumbia by

levislative fiat. Specifically, their object. was to impose

t.

5 sine

upon the District of Columbia the principle. or ene of

social equality. They did not attempt to regulate pre-

existing rights or duties but rather to create and enforce.

‘new rights and duties, general in nature. In so doing, the

Acts.imposed upon restaurant owners and others a duty to

seli to aif and thus interfered with their freedom to. contract.

_ or not to contract with whom they pleased. The Acts were

no more municipal ordinances or police regulations than

-was the Civil Rights Act of 1875 containing similar pro-

visions, which was enacted by the Congress (18 Stat. 330).

Both the Civil Rights Act of 1875 and the Acts of 1872 and

1873 undertook to promulgate a policy of social equality’

and erforee it by criminal penalties. ‘‘The essentials of

the legislative function are the determination of. the legis-

lative poli¢y ard its formulation and promulgation as a

defined and binding rule of conduct’’, Yakus v. United

States, 321 U. S. 414 at 424, |

The Acts in question’ sought to change the legal nature

of the restaurant t_husiness. As was so forcefully stated by

Chief Judge Stephens in his opinion below (R. 79-81) :

In requiring restaurant keepers, unon pain of fine and.

license forfeiture, to gerve. any respectable, weil-

behaved person *ithout regard to race, color, or

previous ‘condition of servitude, the enaetments limit »

the freedom of the restaurant keeper in the use of his

property, in the exercise of his power. to contract, and

in the carrying on of a lawful calling, Before the enact-

ments, he. could choose customers according to his pwn

business personal desire. The enactments lift

rest: eae "eae. theretofore strictly , a private

enterprise, to the level of a ‘public ‘employme ont? ’-—

thereby altering the comnion law, which requirec inns,

but not restaurants, to serve all travellers. _Alpaugh vy,

Wolverton, 184 Va. 943, 36 S. B. 2d 906 (1946): Nance

de Mayflower. Tavern, 106 Utah 517, 150 P. 2d 775

| (194) : - Beale, Innkeepers and Horets, 1906, $$ 15, 35,

53, 61, 301; Williston, Contracts (Rev. Ea. Vv. 4. § § 1066, .

pp. 2964, 2965) +43 C. JS. INNKEEPERS, § $2, p. 1136. The

eni actments do not relate, in the usnal sense of the

terms, ‘‘to the promotion or protection of the public

s

ae

morals and decency, the securing of the public safety

against: fires, explosians, <riot or disorder, or other

dangers to life and linjb, the preservation of the publie

/ peace and order, the furtherance of sanitation and the

safeguarding -of the publie health’’ which are the

ordinary’ subjects of municipal regulation. Moreover,

the essential object of the enactments was to prevent

iu restaurants—and in the other businesses enumerated

__diserimination on account of race, color or previous

condition of servitude, notwithstanding that such dis-

crimination wag customary in the District of Columbia

at the time the enactments were promulgated. The

enactments aré in the nature of civil rights legislation.

The courts of the District of Columbia have held in many

cases that attempted regulations, analogous to the Acts of

1872 and, 1873, constituted general legislation and not poliee

regulations or municipal ordinances. District of Columbia

v. Saville, 1, MacArthur (8 D.C.) 581; Roach v.. Van

Riswick, MacArthur & M. (11 D.C.) 171; Smith v. Olcott,

19 App. D. C. 61; Coughlin v. District of Columbiaz25 App.

DD. C..251; United States v. Cella, 37 App. D. C. 4383; Patrick

_y. Smith, 60 App. D. C. 6, 45 Fy 2d 924. res |

Whether or not the Acts of 1872 and 1873 were legislation

or municipal ordinances or yegulations depends upon their

inherent character and nature and not solely upon their

geographical scope. The brief of. the United States as

amicus curiae erroneously assumes .that the geographical

‘testis the only one to be applied. This so-called test is of no

value since the scope of all acts of the Legislative Assembly

was limited to the territorial confines-of the District of

Columbia so that under this test all enactments ‘of ‘the

. Legislative Assembly would be classified as municipal regu-

lations rexardless of subject matter. As has been demon-

strated, however, the subject matter ‘of the Acts under fe- |

‘view was sucit that they must be held to have been

attempted legislation. — meas .

Even if the Aets of 1872 and 1873 could be called muni-

cipal regulations In any sense of the term, it is elear from

7

the language of Section 1636: of thé 1901 Code, without

referenee to any extrinsie criteria, that the words ‘polite

regujations’’ and ‘‘acts relating to municipal affairs ouly’’

in. the third, exception were used in a sense too restrictive

to include the Acts here in question. This is apparent from

analysis ef the eighth subsection-of Section 1636 of the 1901 ,

Code which saved from répeal the following acts:

6 ’ : :

-An Act to regulate the practice of pharmacy in the Dis-

trict of Columbia, approved June fifteenth, eighteen

. hundred and seventy-eight; an act for the regulation of

the practice ef dentistry in the District of Columbia,

and for the protection of the people from. empiricism

in relation thereto, approved June sixth, eighteen

hundred and, ninety-two; an act regulating the con-

struction of buildings along alleyways in the District of

‘Columbia, approved July twenty-second, eighteen’

hundred and ninety-tyo; an act for the promotion of

anatomical science, and to prevent the desecration of

graves in the. Distriet of Columbia, approved February

twenty-sixth, eighteen hundred and ninety-five; an act

to provide fer the incorporation and regulation of

medical and dental colleges in the District of Columbia,

approved May fourth, eighteen hgndred and ninety-

six: an act relating to the testimony of physicans in

the counts of the District of, Columbia, received by the

men AY thirteenth, eighteen hundred aud ninety-

six; an act “tg regulate thé practice.of medicine and

surgery, to Fieenso physicans and surgeons, and to

punish persons Violating the provisions ‘thereof in the

- District of & huffia, approved June thayd, eighteen

. ehundred niPuinety-aix + and, generally, all aets or

Weis oftacts rel&ing to medicize, dentistry, pharmacy,

the: ommifment af the imsane to the Government

Hospital for the Insane in the District of Columbia, the

abatement of nuisences, and public health. © —

Were the third exception hroad enough to save the Acts

of 1872-and 1873:it wonld have saved, a fortiori, these listed |

in exception eight, Congress thus plainly demonstrated

that the meaning of “police regulations’? and ‘‘nets relat-

ax

.

.

©

ing to municipal affairs only” , Which were saved in the

— third exception was rot proad enough to include the Acts

- here jn question," To construe Section 1636 differently is

to. make the eighth exception unnecessary.

The fifth exception | of Section *1636 of the 1901 Code

exempted from express repez al ‘¢ Ail penal statutes author--

izing punishment by fine only or by imprisonment not’ ex-

-coeding oné year, or both.’’ The Acts of 1872 and 1873 may

have been ‘penal statutes’? but under each Act the penalty

for failure to serve food and drink without discrimination

was both a fine and forfeiture of the v iolator’s license. The

forfeiture of the license was a pact of the penalty. Each |

Set provided in mandatory terns that a violator ‘‘shall be

fined $100 and forfeit his * * “‘license.’*, The very use

of. the term. ‘forfeit’? implies a penal sanction. Central

pon Bank v. Dallas Bank & Trust Ca., 66S. W. 2d 474 so

Civ. App.) ; Southern Ry. Co. N. Inman, 11 Ga. App. 9

a risy S. K. 908.

- Express repeal hy Section 1636. of the 1901 Gode was one

of the gromfis of the opinion below by Chief Judge

Stephens and was an alternative ground of the opinion of

Circuit Judge Prettyman. A majority ‘of the United States

Court of Appeals for the District of Columbia Citeuit,

therefore, has so, construed the 1901 Code which is a’ -athtute

limited in its application to the Distriet of Columbia. This:

Court has held. in District of Calumbia v. Pace, 320 U. S.

G98, that it ‘‘will not ordinarily reyiew decisions of the

United States? Court of Appeals, which are based. upon

statutes so limited or which declare. the common law of the

oe . =) | ;

“Tt was also urged before ‘the Coart of Appeals” by

“vegpondent that if these Acts had not heen = re-

1 See also Nance v. Marlowes Tavern, 106 Utah 517, 150 P. Sa

773, holiling that civil rights legislation was not an act relating to

‘municipal affairs’’ or a ‘*police regulation’ :

9

Pealed ~ the 1901 Code, * they were repealed. by implication

by the Organic Act of jou 11, 1878 (20 Stat. 102), by the

Act of Congress of J uly 1, 1902 (32 Stat. 622), and the Act-

of Congress of July ‘1, 1 32 2 (47 Stat. 500), usually referred

to as the General License Law of the Distriet of Columbia

(Sections 47—2301 et: sé¢q: ‘of the District of Columbia

‘Code (1951)) and by the regulations promukgated pursuant

thereto, by: the Aleoholic Beverage Control, Act of 1934,

Act of Congress of January 24, 1934 (48 Stat. 319) -(Dis-

-triet of Columbia Code (1951) Sections 25—101 et seq.), or

that the Acts hady if held to be regniations, been nepealed

or abandoned by seventy -elght years of disuse,~ or harl be-

come obsolete. See the concurriyzopinion of Circuit Judge

Prettyman below (R. $9) eh it oe of . Columbia .v.

Robinsen, 30 App. 1D. C. 283,-and Reese vs Cobb, 105 Tex.

399, 403, 150 S.W. 887, 889. . > 7

The judgement of the Court-of, Appeals might be affirmed

upon any one of the foregoing grounds. None involves a

(question of constitutional law, nor does any present “a ques-

tion of national or general importance which would merit

review by this Honorable C ourt upon-a writ of certiorari,

we $

. : er

The Only Specification of Error Reflecting a Proposition in.

Which a Majority of the Court of Appeals Concurred Does

Not Involve a Question of National or General a pepe ;

7 Except for the first spe cification, which merely’ states. a

general conclusion, the only specification of error reflecting

a proposition’ concurred in by 4 majority of the United

States Court of Appeals for-the District of Columbia, Cir-

eit (Rs 60- Lois specification: (4). which urges that the

: ( ‘ourt of Appeals erred “In holding that the Acts. of the:

2 The WOP Code expressly repeals all acts of the Legislative

Asse »mbly not saved by one of the eieht excepti ons to section 1636.

This Ge not ‘repeal by implication’’ as Suggested on page 17 of |

netitioner’s brief. .The question ts purely one of statutory con-

strnetion of section 1636 of the 1901 Code.

Pace tee DRE IRV NT

: ~. 40 eae P

Legislative Assembly are presently urienforceable either °

‘because they were repealed or abandoned’*, . The deter-

mination of whether the Court of Appeals erred in’ this

respect involves the.questions of law discussed in Section I

of this brief. It does not present a question of national or

general importance, but merely a question of the interpreta-

tion of statutes or regulations of the sort normally deter-

mmed finally ‘with respect to the District of Columbia by

‘the United States Court of Appeats, for that circuit.

District of Columbia v. Pace, supra, 320 U.S. 298. It is nof

an appropriate .question for review by this ®onorable

Court. } a | qua ee

‘

>

ee ane Oo a a

. Petitioner Is Seeking an Advisory Opinion Upon a Hypothetical

ete Case Which May Never Arise.- ~ |

_” A primary reason for the granting of certiorari urged by

petitioner’ (pages 7 and 10 of its bri¢f) and by the United |

States (pages 10 and: 11 of its: brief) is that this Court

should render iin advisory opinion as a chart or vitide to

Congress in any future legislation it may consider to pro-

vide “home rule’? for the District of Columbia. This is _

clearly démonstrated in the ‘Suggestion that the Case b

Advanced,”’ heretofore filed by petitioner and the Unitedd_

‘States. This Court has repeatedly ruled, however, that it

is without power to give advisory opinions. Barker Paint-

-ing. Co. V. Brotherhood, 281 U. S. 462; Busby v. Electrical |

Utilities Employees U nion, 323 U. S. 72; Asbury Hospital

‘vy. Cass County, supra, 896 U. S. 207. As this Court said

in'the Barker Painting Co. ease: si

But a court does all that its duty compels when it con-

fines itself to the controversy before it. Tt cannot be

required to go mto ceheral propositions or prophetic

ctatemonts of how it is likely to act upon other possible

or even probable isnes-that have not yet arisin, See

Willing v. Chicago A uditorium Asso., 277 U.S. 274.

11

This view was reitérated:in the Asbury [Hospital case in

which it was said:

This Court is w ithout power t6 give advisory opinions. _

It will we decide constitutional isues which are hypo-

thetical, or in advance of the necessity for deciding

them, or w without reference to the manner in which the

statute, whose constitutional validity is drawn in ques-

tion, is to be applied. Alabama State Federation of

Labor v. Mc Adory, No. “588, October Term 1544,

_ decided June H, 1985 (325 U. S. 450),-and cases cited.

In Busby v. Electric Utilities E mployces: Union, 323 U.S

72, 75, this Court said:

. It is not the function of thy certificate silihevina’ by

©. 28 USCA. S$ 346, 8 FCA title 28, § 546, to require this

Court to answer questions not show n to be necessary

to the decision of the. case. A question will: not be

answered if it is. hypothetical, Webster v. Cooper,

_ 10 How (US) 54, 55, 13 L ed. 825, 326; Pelham v. Rose,

9 Wall. (US) 108, 107, 19 L ed. 602,. 604; =, V.

Johnson, 282 US 367, 373, 79 L ed. 388, 394, 51 S. Ct.

115-*Lowden v. Northwestern Nat. B ank & 'F. Co., 298

- US 160, 162, 163, 80 L ed. 1114-1116, 56S. Ct. 66, 30

Am. Bankr Rep. , (NS) 724, or if it is-dependent upon

other questions whieh may net appropriately. be —

answ ered, Jewell v. Knight, 123 US 426, 432, 433, 435,

21 L ed. 190, 192, 193, 8 S. Ct. 193; Towden Vv. North-

western Nat. Bank & T. Co. supra (298. YS 166, 80 L

éd. 1178, 56.8. Ct. 696, 30 Am. Bankr Rep. (NS) 724).

This Court will not answer a question. which will not |

arise in the pending controversy unless another issue,

not yet eal eu by the cbrtifving court, is decided in a

_ particular way. > Triplett. v. Lowel, ‘297 US 638, 647-

_ 649, 80 L ed. 949, 955, 9! 56, 56 S.Ct. 645; Webster v.

Cooper, supra (10 How {US). 5D, 13 L.ed.: batt ef,

United States v. 5 EEO 18 Wall. (US) 125, 129, 21 L.

ed. 812, 813. .

-The main argument urged for the granting’ of the writ

therefore appears to be a compelling reason why the writ.

should be denied. ;

to

IV :. ‘

The Opinion of the Court of Appeals Does Not Rule Upon the.

‘Issue of Segregation Versus Non-Segregation.

The decision of the Court of Appeals“dealt only with the

present enforceability of long forgotten acts of a govern-

ing body Which was*abolished in 1874; it did not deal with

..the power of Congress, the Legislature for the District ot

Columbia, to enact anti-segregation legislation if it so

desiréd. Segregation was not in issue. The decision of the

‘Court of Appeals would have been the same, and itsssigni-

Feance would have. been no-less, if the Acts of the Legisla-

tive Assembly in question had fixed the rate of charges by

auctioneers for selling real estate, as did the act considered

and held invalid in’the case of Smith y. Olcott, supra, 19

Api 3. 0-8 sek Sac ae

It should also be emphasized that this ts not a ease where-

in the local governing body was attempting: to enforce

segrégation through covernmental power, as petitioner now —

does in its schools; this case involved only the question of >

whether or not old acts, which.songht to compel citizens

to practice nou-segregation, are still enforceable.

<.

The Claim of Petitioner and Amicus That the Subject Matter

of This Case Is of Great National Importance and Should

- be Reviewed Is Inconsistent With Their Position on the

Merits. Si ¥

Petitioner on pages 7 and 8 of its brief, and the United

States as amicus curiae at pages 33 and 34 of its brief, urge

that the subject matter of this suit is of national rather than

local concern, and for Ahat reason: this Honorable Court

should grant certiorari. Upon this theory pétitioner would

appear to. concede that because of their nature the Acts in

‘question were legislation and not mere regulation. ‘Tt _

follows from this that petitioner cannot with consistency,

“contend the Acts were mere municipal regulations.

“13

This inconsistent position in whict-petitioner and amicus

find themselves emphasizes the fact that this record -does

not present a -case which merits review upon a writ of

certiorari... ae ee

Vi

The Opinions of the Majority of the Court of Appeals Are in

Accord With Previous Rulings of This Honorable Court

and With Previous Dyetciong of the Courts of the District

of Columbia.

Petitioner claims that one of the grounds relied upon by

the Court of Appeals, that Congress may not delegate its.

legislative power over the. District of Columbia, is not in

aecord with previous decisions of this Court, However, this

ruling is consistent with this Court’s opinions in Stouten-

burgh v. Hernick, 129 U. S. 141, and Metropolitan Railroad

Co. v. District of Columbia, 132 U.S. 1. Counsel for peti-

tioner recognizedsthis fact.in his oral and written opinions _

to the committees of the 80th Congress considering pro-

posed legislation for ‘‘home rule’? for the District of

~Columbia.* Petitioner now urges, however, that this Court _

ruled differently in Binns v.. United States, 194 ‘DU. S. 486;

and Barnes v. District of Columbia, $91 U. S. 540, The

' Binns case, however, related to the territory of Alaska, not

‘o the District of Columbia. The. applicable” constitutional

provision there involved, Article TV, “Section-3, does -not

employ the word ‘‘legislate’’, while Article I, ‘Section 8

‘makes Congress the legislature for’ the District of.

Columbia. That section prevides that Congress shall have

power to ‘‘oxercise exclusive legislation, in all cases w hat-

soever, over’’ the District of Columbia. Petitigner ard

Hearings before the Subcommittee on “Home Rule and Reer-

ganization of the Committee on the Sag of Cofumbia of, the

House of Representatives. 86th Cong, ‘Ist Sess.. pp. 240 ef seq.;

Joint Hearings before the Subcommittees on Home Rule and Re-

organization of the Senate and Hou e Committees on the District

of Columbia, 80th Cong., 2d. Sess. pp. 25-8.

Dileer <hr nikie penne ees

. oe

amicus assume that’ stress was placed by. the Court of

Appeals’ upon the word “exclusive ’* in: Artiele E, Section 8.

‘The opinion of Chief Judge Stephens shows thatthe con-

‘trolling words were rather ‘‘exercise’’ and ‘‘legislation’’.

_It is the. inability of Congess to abdi as a legislature

2 hich’ prohibits delegation to'a.subordilfte bedy. Panama

Refining Co. v.. Ryan, 293 U.S. 388; Schechter v. United

‘States, 295 U.S, 495: 2

‘The case of Barnes v. District of C olumbia, supra, 91 U:S.

_ $40, antedated Stoutenburgh vy. Hennick, supra, 129 U.S.

141 and, morcover, it is‘not in point. It did not rule upon

what powers Congress cotild délegate to the Legislative

_ Assembly, but was concerned only with the question of

~ whether the District of Columbia should be held responsible

for the neglect and omissions of its officers.whom it shad no

Ban er to select or control.

The Court. 6f Appeals for the District of Columbia in

Smith v. Qle ott, supra, 19 nee ‘D.C. 61, said:

Ses

Congress has express “power **to Baie exalusive

legislation in all cases w hatsoevér,”’ over the District

of Coluntbia, thus possessing the combined powers o!

a general ang ofa State government tn all eases where

legislation i& possible. But as the repository of. the

legislative ower of the United ?States, Congress’ it

‘creating the District of Columbia ‘a: hoy corporate

for “municipal purposes,’ coulda only authorize it te

Se exercise municipal powers. ,

hs”

That Court's predecessor had made similar rulings

Roach v. Van Riswick, MacArthur and M, (41 D.C.) 171

District of Columbia ¥. ‘Saville, 1 Me Arthur, (8 D.C .) 581

" and @ounsel for the petitione r had so recounized such top

the law of the Distfict of C ‘slumbia in n his oral and writter

opinions to the Congress.

Petitioner, on page 9 of its brief, sana that the decision

. helow jhas “‘erected a barrier: to effective home rule in th

District of Columbia.” The decision erected no suel

barrier, The Court of Appeals decided only that Congres

. ..

@

oe

cannot delegate ‘its legislative power. The. District . of

-~ Columbia: may be granted effective. home rale. ‘within the

framework of this doetrine. In faet, bills providing for

home rule have recognized this.principle and have pr oposed

to grant home rule jn se therewith. a

: _. CONCLUSION ~ ates

' At-pages 9 and 10 of. its brief, petitioner claims that this

case presents three questions which ‘‘shogld be settled by

this Court’’., However, none of the questions raised by

petitioner merits review. } | LS

_ First, the petitioner says* the, decision of. the Court of ©

’ Appeals ‘‘freezes the law of the District of. Columbia in the .

yer of racial diserimination wl#ieh the people of. the

Jistrict of Columbia had: thrice attempted, through their

© own representatives, te reject’’. This statement. resporid-

ent submits is completely. unjustified. ~The ruling of that:

¢

Court does not: freeze*the law in any pattera-« shatefer ; on

- the contrary it leaves fhe people of the District ‘of Columbia

free to determine as individuals what their course of con-_

duct will be. As a result of the decision there 1s no Jaw in

the District of Columbia that compels any ‘man to ‘dié-

criminate, or not. to discriminate. Moreover, there is

nothing in the decision which would prevent the. Congress,

if it so desired, from enacting civil rights. legislation. for

the District. of Columbia,

Second, petitioner. says that the vali f ‘the Court: of

Appeals that: Congress cannot delegate legislative powér to | -

the District of Columbia ‘erected a harrier to effective

_home rule in tlie District of Columbia’’. The ruling erected

“no: such barrier.. The principlesapplied by the Court is’ ‘not

inconsistent with home rule. ‘The ruling. of the Court of

‘Appeals, moreover, is in accord with prior decisions of this

ganization, Committee on the Distrj#t of Columbia of the House of .

tepresentatives on H.R. 6227, 80th Congress, Second Session,

“April 15, 1948, page a .

4 See e. g. Report of the cag on Home Rule and Reor-

@,° eo

- &.

Honorable Court, with prior decisions of the ‘Courts of the ©

District of Columbia and with epinions given by the peti-

tioner's counsel tothe: Congress.

‘Third, petitioner says that the effect of fre ruling: of the

_ Court of Appeals is that Congress Is new’unable to deter-

mine what powers, ,

any, it may del egate. tova subordinate

ia Government. .W hether or not pro-

District of Colm

7 posed or future legislation would be valid under Artiele I,

- Section 8, of the Constitution is a question whichthis.Court

cangot | decide: at this time. “Such a decision would require

an advisory.opinion wkicl this gael has. any =

declared it has ng power to: give. ° |

None of the «questions sieacaiol is worthy of réview.

Purther ‘more, this case canbe decided by the interpretation

‘of a statute limi ted’ in its operation to the District of:

oColumbia, a matter properly left to the Court of. Appeals |

of that District, © °

For these reasons it is ‘respectfuly submitted that the

petition for a writ of certiorari shquld be denied. >

ae ' _. .Respeetfully submitted,

Gat "s ~ Rryceoip Hart, -

3 . ®. :

Joun J. Witson, ak

‘. odo V. Morgan, Ire 5 a

Washington 5, D, C.

Counsel for Respondent. .

Wurterorn, Hart, Carsvopy & W ILSON

Of Coungel

. ¢ os

oe

815: Fifteenth Street, N. W. 3