# Brief for the Respondent in Opposition to Petition for Writ of Certiorari — District of Columbia v. John R. Thompson Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0250%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1953 - **Citation:** 346 U.S. 100 ## Text 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... 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, 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0250%3A07. Public record. Not legal advice.