Evening star., 1937-12-19
le Editor of The Star:


1t is with considerable reluctance
that I venture to give any legal ad-
vice to the public because such ad-
vice is generally appropriate only
when it is requested and given to
persons who expect to rely upon it,
but have been urged by friends who
know Of a long connection on my
part with the movement for some
self-government for residents of the
District of Columbia, to state my
views as to what is probably possible
by way of control by residents in the
District over their own governmental
affairs.
My view is that the power to ex-
ercise exclusive legislation in all
cases whatsoever" which is vested
by the Constitution in Congress itself
cannot be delegated to a local legis-
lature or commission without amend
ment to the Constitution.
Such misunderstanding as exists
about this is due, think, to fail
ure to distinguish between municipal
regulations and law. Here it seems
better to illustrate than tQs attempt
to define.
In the States legislative power is
exercised by the State Legislatures.
Those Legislatures may and do de-
termine that the local affairs of
cities within the States will be man
aged by municipal assemblies, coun-
iCc Tot,
authority is eXercisable over such
subjects as public health, public
safety, traffic and the like. The resi-
dents of the city exercise their right
| OF self-government in two ways,
through the election of such of the
municipal officers as are elected and
through the election of the State
Legislatures.
The power which Congress cannot
delegate is the power which is CON-
parable to that exercised by the State
Legislature. Congress can and has
from time to time delegated the power
to make such municipal regulations
as are customarily made by the NUM-
clpal authorities of other cities. Dur
ing one short period of three years,
from 1871 to 1874, there was in effect
in the District of Columbia an at
tempted delegation by Congress of
legislative power to the Legislative
Assembly of the District of Columbia
by the act of February 81, 1871.
Here was an attempt to delegate to
the Legislative Assembly of the Dis
trlct OF Columbia power to make laws
comparable with the laws enacted for
States by State Legislatures. A law
so enacted was held invalid upon the
precise point that it was beyond the
power of Congress to delegate general
legislative authority to local gov
ernment in the District of Columbia
in Roach VS.. Van RiSwick, decided
November 18, 1879, by the general
term of the Supreme Court of the
District of Columbia, then the court
of last resort in the District of Co.
lumbia, reported in MacArthurs and
Mackeys Reports, page I'll. This
case was presented to the court by
leaders of the bar upon both sides,
was studiously and we'll considered,
and its soundness has not been ques-
toned in any subsequent decision. A
quotation from that case might assist
in an understanding of it. The court
said:
But this fundamental rule, which
forbids the delegation of legisla-
tive power, is subject to a qualifi-
cation. 1t is admitted, that even
without any express constitutional
authority, Legislature may Gre
ate municipal corporations with
certain powers of local government.
According to the spirit of our in
stitutions, the regulation of local
concerns in town is considered
as properly belonging to its inhabi-
tants. and not properly the subject
of general legislation, and it is
hardly looked upon as delegation
OF legislative authority, properly So
called, to confer this power of reg
ulation on local boards, assemblies,
or other inferior officers. It is
rather the grant of power to pass
bylaws. Legislative authority for
wa POA ave aSOAOA 10, VI COURSE.
necessary, and it is always subject
to legislative revision and control.
But municipal regulation of the in
ternal economy of town, is uni
versally recognized as something
distinct from the exercise of legis-
lation, which is invested by the
constitution of State in its Legis-
lature and cannot be delegated
X X
"It will at once suggest itself,
that it is difficult to draw the line
between powers that are strictly
municipal, and may rightly be con-
ferred on local corporations, and
those which are properly legisla-
tive and cannot be delegated. But
this difficulty does not disprove the
existence OF such dividing line"
X X X
Our conclusion, on the whole,
is that the act of the District
Legislature was an act of
legislation which it was only COM
petent for the Congress of the
United States to pass, and was in
itself totally imperative and void,
and the decree rendered by the
court below must be reversed"
1t is relevant, think, to current
public discussions of the matter to
add that no more power could be
delegated to a local legislative as
sembly than could be delegated to the
appointed Commissioners of the Dis
trict of Columbia. AS the Supreme