Evening star., 1953-01-23
Donohue Poses
Plan 70 Curb
Segregation
City Regulations
Studied as Solution
After Court Ruling

~ ~~" AAAAtAN1Po4 ACSuIdS
tions that would force restau-
rants to serve any we'll behaved
person regardless of color.
A suggestion for such regula-
tions was made by Commissioner
F, Joseph Donohue, in the wake
of an opinion yesterday by the
U S. Court of Appeals for the
District of Columbia.
The immediate effect of the
ruling was to allow District
restaurants to refuse to serve
Negroes.
But the court split three ways.
This left the decision so close
and so involved with legal niceties
that it might not bar anti
segregation regulations that Mr..
Donohue could propose.
Originated in 1850.
The court test started in 1850
when Thompson's Restaurant
near Fourteenth and New York
avenue NV, refused to serve
three colored persons. They went
to court, citing acts that the
Districts old Legislative Assem-
bly, passed in 1872 and 1873.
These acts required District
restaurants to serve all we'll
behaved patrons. If a restau-
rant refused. it could lose it's
license and be fined $100.
When the case reached the
United States Court of Appeals,
the nine judges reached three
separate opinions.
-Four judges held that the
Legislative Assembly did not
have authority to pass such anti
discrimination bills. Therefore,
they reasoned, the acts could not
be enforced.
-Four other judges held that
the Legislative Assembly did have
authority to pass the bills-and
that they could be enforced.
Laws Held Abandoned.
In between was the ninth
judge. Barrett Prettyman. He
didn't rule whether the anti
discrimination acts were valid.
He said simply that they had
not been enforced since 1873, by
inference have been abandoned
and "are presently unenforce-
able"
Judge Pretty;nan's opinion
gave court majority of 5 to 4
against enforcing the anti-segre-
cation acts-but the basic dis
pute of whether the District has
power to write such laws remains
unsettled. #
Mr.. Donohue is thinking of
having the District Commission
erS pass a police regulation
against segregation. This doubt
less would provoke another court
test and perhaps lead to a de-
cision more clear-cut than yes
terday's.
Authority Questioned.
Chief Judge Harold NJ. Steph-
ems wrote the Appeals Court
opinion that the old Legislative
Assembly did not have power to
adopt the anti-segregation acts.
He reasoned: The Constitution
gives Congress sole power to pass
general legislation for the Dis
trict: Congress could not and did
not delegate this authority to the
Legislative Assembly. which, did,
however. have power to adopt
local police regulations.
In arguing that the anti-segre-
cation act was illegal general"
legislation rather than proper
police regulation. Judge Stephens
wrote:
I'm 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
previous condition of servitude,
the enactmentS limit the free
dom 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 law
full calling.
Before the enactmentS, he
could choose customers accord
ing to his own business or per-
sonal desire. The enactmentS
lift restaurant keeping, there
fore strictly a private enterprise,
to the level of a public employ
ment'-thereby altering the COM
mon law, which required inns.
but not restaurants, to serve all
travellers"
Agreeing with this reasoning
were, in addition to Judge Ste
phens, Judges Bennett Champ
Clark. WILDER K. Miller and
James Proctor.
Four Judges Dissent.
A dissent came from Judge
Charles Fahy. backed by Judges
Henry w. Edgerton, David Baze-
lon and George T. Washington
They argued that the anti
segregation acts were local in
nature and thus proper for the
Legislative Assembly to pass
The judges said:
They regulate a local activ-
ity, the serving of food at a fixed
location within the District. This
is the sort Of thing which in the
several states, unless there il
statewide law to the contrary, /,
appropriately left to municipal
authority.
Higher authority. either 9
State Legislature or, as here. Con.
gress. may legislate upon thu
subject. but until it does loca
initiative may deal with it in &C.
cordance with the local point o.
view as to what is conducive tt
the peace, order, morals Or vel
fare of the community"
These judges pointed out that
q number Of cities have So-callec
Jim Grow laws for separation