CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
Vinson, Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton,; Jackson took no part in the consideration or decision of this case.
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 of 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,*fn1 June 20, 1872,
and the others charging violations of the Act of the Legislative Assembly of the District of Columbia,*fn2 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The Municipal Court quashed the information on the ground that the 1872 and 1873 Acts had been repealed by implication on the enactment by Congress of the Organic Act of June 11, 1878, 20 Stat. 102.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the 1872 and 1873 Acts were valid when enacted, that the former Act, insofar as it applies to restaurants, had been repealed, but that the latter Act was still in effect.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
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. 34, 203 F.2d 579. The case is here on certiorari. 345 U.S. 921.
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,*fn3 that "the legislative power of the District
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*fn4) was characterized by the Court as a "territorial government." Eckloff v. District of Columbia, 135 U.S. 240, 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
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, 168; Binns v. United States, 194 U.S. 486, 491; Christianson v. King County, 239 U.S. 356, 365. The power which Congress constitutionally may delegate to a territory (subject of course to "the right of Congress to revise, alter, and revoke," Hornbuckle v. Toombs, 18 Wall. 648, 655) covers all matters "which, within the limits of a State, are regulated by the laws of the State only."*fn5 Simms v. Simms, supra, p. 168.
The power of Congress to grant self-government to the District of Columbia under Art. I, § 8, ...