Evening star., 1953-01-22
Appeals Court Rule
In Effect UphoIds
Cafe Segregation
Continued From First Page.)

Such a writ is q ruling by the
court that 1t will consent to hear
the matter.
To support its conclusion that
the anti-segragation laws were
invalid, the court majority re-
called that the Constitution gave
Congress the right Ito exercise
exclusive legislation in all cases
whatsoever over the District. :"
Congress in 1871 authorized q
District Legislative Assembly to
help exercise municipal" pow
erS."
Court Decisions Reviewed.
The court majority reviewed
numerous court decisions on
what the Legislative Assembly
could deal with. Then it con-
cluded:
"The (anti-segregation) enact
ments Of the Legislative Assem-
bly, of 1872 and 1873 which are
under question in the instant
case were of the character of
general legislation the power
to enact which the Congress
could not constitutionally, and
did not, delegate to the Legisla-
tive Assembly.
In requiring restaurant keep
ers. upon pain of fine and license
forfeiture, to serve any respect
able, well-behaved person with
out regard to race, color, or pre-
vlouS condition Of Servitude, the
enactmentS 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 call
ing.
Before the enactments, he
could choose customers accord
ing to his own business or per-
sonal desire. The enactments
lift restaurant keeping, thereto
fore s private enterprise, to the
level of a public employment
thereby altering the common
law, which required inns, but
not restaurants, to serve all tray
elerS.
Regulations Repealed in 1901.
Congress did not attempt to
endow the Assembly with power
to enact such measures as are
the subject Of the instant ap-
peals. The Congress made no
express grant of power to the
assembly to enact such meas
ures, and in our view such power
Is not fairly or necessarily to be
inferred"
The court majority held that
even if the anti-segregation reg
ulations were passed legally, they
were. repealed in 1901.
In that year, a revised District
OF Columbia Code repealed all
Legislative Assembly laws except
for certain classihcations such as
"all penal statutes authorizing
punishment by fine only or by
imprisonment not exceeding one
year. or both" "
The court pointed out that the
anti-segregation law provided
punishment Of a $100 fine and
forfeiture of the restaurants
license. The court held the Ii
cense forfeiture was a punish
ment in addition to fine or i'm
prisonment. Thus, the court
said, the anti-segregation regu-
lationS "were not within the class
of penal statutes which (were)
expressly saved"
In this connection, the court
held the enactmentS are in the
nature of civil rights legislation.
The opinion declared: They un-
dertake to establish in the res
taurant business, and in the other
businesses named, a policy of
equal service without respect to
race ..."
Case Under Study for Year.
Finally" the court said, "the
enactmentS, though applicable
only in the District of Columbia,
are, because they are applicable
in the Nations capital, of ma
tlonal interest. In view of the
purpose and effect of the enact
mentS as above described, we
think that no other conclusion
can reasonably be reached than
that they were of the character
of general legislation, the power
to enact which the Congress
could not constitutionally dele
gate to the Assembly,"
The case had been under ad-
visement in the Federal Court of
Appeals since January 8, 1852,
when all nine judges heard argu-
mentS.
The minority opinion asserted:
"There can be no question Con-
gress could constitutionally dele
gate to the Legislative Assembly
power to enact regulations of a
municipal or a local character.
It seems plain the equal
service provisions must be con-
Sidered municipal or local. They
represent the views of the Leg
islative Assembly as to how this
matter should be regulated with
in the District of Columbia. They
do not affect the general GRIM
inal law, or the dissent or other
disposition Of property or
any other matter commonly reg
ulated by general law, but the
serving of persons in licensed
eating places in the local COM
n1unity."
It was in February, 1850,
that ThompSon's Restaurant on
Fourteenth street near New York
avenue NV, refused to serve
three colored persons, thereby
setting of the case.
d. G. Agreed to Test.
The three were Mrs. Mary
Church Terrell, a former Board
of Education member; the Rev.
Arthur ElmeS, pastor of the Peo-
IIIlIllIlINIlIIl