Full opinion text
Chief Judge STEPHENS announced the judgment of the court and an opinion in which Circuit Judge CLARK, Circuit Judge MILLER and Circuit Judge PROCTOR concurred, and in the result of which Circuit Judge PRETTYMAN concurred. By the Act of February 21, 1871, 16 Stat. 419, c. LXII, the Congress created a Legislative Assembly for the District of Co-: lumbia, consisting of. a Council and a House of Delegates, the council to be appointed by the President, with the advice and con,-: sent of the Senate, the House of Delegates to be elected by the male citizens of the United States resident in the District. The Assembly existed only until June 20, 1874, when, by the Organic Act of that date, 18 Stat. 116, it was disestablished. By an Act of June 20, 1872, D.C.Laws 1871-72, pt. IV, c. LI, § 3, Comp.St.1894, c. 16, § 150, the Assembly made it a misdemean- or for any restaurant keeper to refuse to serve any respectable well-behaved person, without regard to race, color or previous condition of servitude. The enactment provided that upon conviction of the offense defined a restaurant keeper should be fined one hundred dollars and should forfeit his license for one year. The text of the enactment, so far as here pertinent, is set forth in the margin. A further enactment with similar objective and sanction was passed by the Assembly on June 26, 1873, D.C.Laws 1873, pt. II, c. XLVI, §§ 3 and 4, Comp.St.1894, c. 16, §§ 153, 154. The text of that enactment, so far as here pertinent, is also set forth in the margin. On August 1, 1950, the Corporation Counsel for the District of Columbia filed in the Municipal Court for the District an information charging the John R. Thompson Co., Inc., as a restaurant keeper in the District, with violation of the enactments of 1872 and 1873 — by refusal of service, solely because they were members of the negro race, to named well-hehaved and respectable persons. The information was in four counts, the first charging violation of the enactment of 1872, the second, third and fourth with violation of the enactment of 1873. The Municipal Court, acting sua sponte, entered an order quashing the information upon the ground that both enactments had been repealed by the Organic Act of June 11, 1878, 20 Stat. 102. The District took an appeal from that order to the Municipal Court of Appeals, 81 A.2d 249. That courtfi as to the' first count of the information, affirmed the order of the Municipal Court, Judge Hood being of the view that both the 1872 and 1873 enactments were invalid as beyond the power of the Assembly, Judge Clagett thinking that the 1872 enactment was repealed by the enactment of 1873. As to the second, third and fourth counts of the information, the Municipal Court of Appeals reversed the order of the Municipal Court, Judge Clagett being of opinion that the 1873 enactment was valid when enacted and that it had never been repealed, Chief Judge Cayton being of the view that both the 1872 and 1873 enactments were valid when enacted and that neither of them had been repealed. The Thompson Company petitioned this court for the allowance of an appeal from the judgment of the Municipal Court of Appeals in so far as it reversed the order of the Municipal Court quashing the information as to the second, third and fourth counts. The District, on its part, petitioned for the allowance of a cross-appeal from the judgment of the Municipal Court of Appeals /in so far as it affirmed the order of the Municipal Court in quashing the information as to the first count. We granted both petitions, and ordered the appeal and the cross-appeal heard in banc. As the appeals stand before this court on the record and briefs they present two principal questions; The first, were the enactments of the Legislative Assembly of 1872 and 1873 on which the information against the Thompson Company was based within the power of the Assembly; the second, were those enactments repealed. I. Were the enactments of 1872 and 1873 within the power of the Legislative Assembly? We think the answer to that question lies in certain constitutional provisions and principles and in certain rulings and reasoning of the Supreme Court and of this court, and of its predecessor, the Supreme Court of the District of Columbia in General Term, which we shall briefly review. The Constitution in Article I, Section 8, Clause 17, endows 'Congress with power “To exercise exclusive Legislation in all Cases whatsoever, over such District, as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . The Act of February 21, 1871, creating the Legislative Assembly for the District of Columbia, provided in Section 1: That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of, a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act. In Section 5 the Act provided, inter alia: That legislative power and authority in said District shall be vested in a legislative assembly as hereinafter provided. In Section 18 the Act provided: 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, subject, nevertheless, to all the restrictions and limitations imposed upon States by the tenth section of the first article of the Constitution of the United States; but all acts of the legislative assembly shall at all times be subject to repeal or modification by the Congress of the United States, and nothing herein shall be construed to deprive Congress of the power of legislation .over said District in as ample manner as if this law had not been enacted. In December 1888, there was submitted to the Supreme Court of the United States a case which for the first time in that Court questioned the power of the Legislative Assembly, to wit, Stoutenburgh v. Hennick, 129 U.S. 141, 9 S.Ct. 256, 32 L.Ed. 637, decided in January 1889. The Assembly, by an Act of August 23, 1871, amended June 20, 1872, forbade “commercial agents”— persons whose business it is, as agent, to offer for sale goods, wares or merchandise solely by sample, catalogue or otherwise— to engage in that business in the District of Columbia without having first obtained a license to do so. An agent of a Baltimore, Maryland, merchandise firm was convicted in the District of a violation of that enactment and was sentenced to a fine and, in default of payment of the same, to the workhouse. In a habeas corpus proceeding he attacked the validity of the enactment upon which the conviction rested upon the ground that, as applied to persons soliciting in the District the sale of goods on behalf of those doing business outside of the District, it was a regulation of interstate commerce and hence within the exclusive power of Congress. The decision of the Supreme Court in the case is important here because of a distinction made and the reason given therefor. The Court,' speaking through Chief Justice Fuller, said: It is a cardinal principle of our system Of government, that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity. Congress has express power ‘to exercise exclusive legislation in all cases whatsoever’ over the District,of Columbia, thus possessing, the combined powers of a general and of a State government in all cases where legislation is possible. But as the repository of the legislative power of the United States, Congress in creating the District of Columbia ‘a body corporate for municipal purposes’ could only authorize it to exercise municipal powers, and this is all that Congress attempted to do. [129 U.S. at page 147, 9 S.Ct. at page 257] Applying the foregoing, the Court said that while the enactment of the Assembly had manifestly been regarded as a regulation of a purely municipal character, it could not be so treated because it was, as applied to the defendant, a regulation of interstate commerce; it was therefore void. The Court concluded: In our judgment Congress, for the reasons given, could not have delegated the power to enact the 3d clause of the 21st section of the act of assembly, construed to include business agents such as Hennick, and there is nothing in this record to justify the assumption that it endeavored to do so, for the powers granted to the District were municipal merely .... [129 U.S. at page 149, 9 S.Ct. at page 258] In a second case in the Supreme Court, Metropolitan Railroad v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231 (1889), the question, in a suit brought by the District to recover from the Railroad moneys expended by the former in paving construction which was allegedly the statutory duty of the Railroad, was whether the District was a municipal body and: as such subject to the running of the statute of limitations, or a sovereign, or, as the District contended, of such sovereign, character or so identified with or representative of the sovereignty of the United States as: to be entitled to the prerogatives and exemptions of sovereignty. In deciding that the District was subject to the statute- of limitations, the Supreme Court, in an opinion by Mr. Justice Bradley, reasoned as follows: . . . All municipal governments are but agencies of the superior power of the State or government by which they are constituted, and are invested with only such subordinate powers of local legislation and control as the superior legislature sees fit to confer upon them. The form of those agencies and the mode of appointing officials to execute them are matters of legislative discretion. . . . It is undoubtedly true that the District of Columbia is a separate political community in a certain sense, and in that sense may be called a State; but the sovereign power of this Qualified State is not lodged in the corporation of the District of Columbia, but in the government of the United States. Its supreme legislative body is Congress. The subordinate legislative powers of a municipal character which have been or may be lodged in the city corporations, or in the District corporation, do not make those bodies sovereign. Crimes committed in the District are not crimes against the District, but against the United States. Therefore, whilst the District may, in a sense, be called a State, it is such in a very qualified sense. [132 U.S. at pages 8-9, 10 S.Ct. at page 22] Turning" to the decisions of this court and of its predecessor: In District of Columbia v. Saville, 1 MacArthur’s Reports 581 (1874), an information charged violation of an Act of the Legislative Assembly of June 23, 1873 “to regulate shows and exhibitions in the sale and disposal of seats.” The Act, upon pain of a fine, forbade the proprietors of theatres from selling tickets, after the opening of an exhibition, so as to reserve particular seats not reserved by the sale of tickets previous to the opening. The information was quashed by the Supreme Court of the District in General Term upon the ground that the enactment was beyond the power of the Assembly. The court said: The provisions of the act are attempted to bo justified on the ground that it is a mere police regulation, and as'such, within the competence of the late legislative assembly to enact. We are all of the opinion that tbe act has nothing whatever of the character of a police regulation, but on the contrary that it is an unwise, vexatious and unlawful interference with the rights of private property. 11 MacArthur’s Reports at page 584] In Roach v. Van Riswick, MacArthur and Mackey’s Reports 171 (1879), there was presented .to the Supreme Court of the District in General Term the question whether or not an Act of the Legislative Assembly of August 2, 1871, making judgments a lien on equitable interests in land, was within the power of the Assembly. In an opinion from which, for full understanding, we must quote at some length, the court ruled that it was not. The court said: Among the other powers conferred by the Constitution, is the 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.’ It may be admitted that the term ‘exclusive’ has reference to the States, and simply imports their exclusion from legislative control of the District, and does not necessarily exclude the idea of legislation by some authority subordinate to that of Congress and created by it. For enlightenment on this latter subject, we must look to those general principles in regard to the nature of legislative power which seem to be recognized by the authorities. In this country, where the principles of constitutional law are better understood than elsewhere, it seems perfectly established that the power conferred by a constitution on a legislative body, to make laws, cannot be delegated by that body to any other body or authority, but is regarded as a kind of personal trust reposed in the legislators, the mode of whose election is supposed to contain guaranties of their judgment, wisdom and patriotism. * * * * But this fundamental rule, which forbids the delegation of legislative power, is subject to a qualification. It is admitted, that even without any express constitutional authority, a legislature may create municipal corporations with certain powers of local government. According to the spirit of our institutions, the regulation of local concerns in a town, is considered as properly belonging to its inhabitants, and not properly the subject of general legislation; and it is hardly looked upon as a delegation of legislative authority, properly so-called, to confer this power of regulation on, local boards, assemblies, or other inferior officers. It is rather the grant of a power to pass by-laws. Legislative authority for corporate action is of course necessary, and it is always subject to legislative revision and control. But municipal regulation of the internal’ economy of a town, is universally recognized as something distinct from the exercise of legislation, which is invested by the constitution of a State in its legislature, and cannot be delegated. Cooley Con. Lim., 191. [MacArthur and Mackey’s Reports at pages 174r-176] The court then pointed out that while “it is difficult to draw the line between powers that are strictly municipal, and may rightly be conferred on local corporations, and those which are properly legislative and cannot be delegated . . . this difficulty does not disprove the existence of 'such a dividing line.” The court then said: ■Notwithstanding the difficulty of laying down general rules, there are some subjects to-which we can, with reasonable certainty, assign their proper pla.ce, as between the State and the municipality. Thus, universal usage and legislation recognize the preservation of public order, morals and health, the regulation of markets and places of amusement, the inspection of provisions,' the improvement and repair of streets, and, as an incident to the others, the levying of general taxes and special assessments, as appropriate powers of a municipality. On the other' hand, titles to property, its transfer and transmission, the form and effect of judicial proceedings, the formalities and effect of contracts, the law of commercial papers, the whole subject of crimes and other subjects of equally general interest, one would naturally assign to the highest legislative authority in a State. There might be twenty municipalities in one State. Each' might have its own powers and its own mode of exercising them, as to the subjects which I have mentioned, as proper to he handled by it. But it is apparent, that the second class of subjécts that I have mentioned, should be dealt with'by laws operating uniformly through a State. It would never do to have different rules of property,- different laws of contract generally, or of commercial papers in particular, different legal proceedings and remedies, and different criminal codes in the different municipalities of a State. It is very plain that the disposition of these subjects by law is the' exercise of legislative power, and that, when that is constitutionally vested in a definite legislativo body, it cannot, in the nature of things, be delegated to another. The power of making laws derived directly from the people is legislative; the power of local regulation derived from the legislature is municipal, no matter how limited or extensive the locality embraced by it. ■ ' These conclusions will apply to the Congress .of the United States, even if we regard it as a mere local legislature, in its relations with the District of Columbia. When it assumed jurisdiction over the District, it found two corporations, Alexandria and Georgetown, in existence, and a few years later it created a third, the city of Washington. Each one of those corporations had a charter, and all the charters differed more or less in detail, while the general features of municipal charters were common to all. It would have been preposterous for Congress to have committed to each the power of regulating or ordaining legal proceedings and remedies, establishing the law of contracts, &c., within their respective corporate limits. Three or four different systems of law would have prevailed, the creatures of municipal action; and great confusion and perhaps conflict would have prevailed. Each one of these was essentially a municipal corporation, exercising derivative powers of local regulation, and if they had been all consolidated, it is not perceived that their essential character would have been changed. But there are still more important considerations influencing this question. Congress is not a local legislature in reference to this District but it legislates for this District in its character as a national legislature. * * * * Judge Marshall said: ‘In the enumeration of the powers of Congress, which is made in the 8th section of the 1st article, we find that of exercising exclusive legislation over such District, &c., &c. This power, like all others which are specified, is conferred on Congress as the legislature of the Union, for strip them of that character and they would not possess it. In no other character can it be exorcised. In legislating for the District, they necessarily preserve the character of the legislature of the Union, for it is in that character alone that the Constitution confers on them this power of exclusive legislation. This proposition need not be enforced, &e., &e. It is matter of history that the legislation of Congress respecting the internal affairs of the District has in various instances had direct reference to the interests of the people of the States. Thus, non-resident executors and administrators from the States, by act of 1812, were allowed to sue and recover claims in the courts of the District. So, at a- later date, it is a matter of private history, that the arrest for debt, here, of a visitor from a State, was the occasion of the abolition by Congress of imprisonment for debt. Other illustrations might be given • showing that in practice, as well as theory, the legislation of Congress, for this District, is the exercise of one of the powers conferred on it, as the national legislature. If this be so, then this power is to be viewed in the same light as the other powers conferred on Congress, viz., those of regulating commerce, borrowing money on the credit of the United States, coining money, &c., &c. Now, if we suppose Congress to have conferred on the corporation o>f Washington, or any other municipal body here, the power to regulate commerce between the northern and southern States, in its transit through the District, as by levying tolls on transportation of persons and freight; or of establishing a mint and coining money, &c., we would at once see how glaring an abdication and transfer of its proper functions Congress would be guilty of. The same might be said if Congress had authorized the corporation of Washington to legislate for the District of Columbia. But according to what has been shown, it would be none the less such for Congress to delegate to a municipality of its own creation the power of general legislation, expressly confided to it by the Constitution over this District, including, as in this ease, the power to regulate the practice of the courts of the United States here and to determine the effect of their judgments, and thus change the common law of titles derived by us from Maryland, which could only be changed by an act of legislation of the most authoritative character. [MacArthur and Mackey’s Reports at pages 178-181] The Court had been referred in the argument of the case to the laws establishing governments in the territories as an example of the delegation of its legislative authority by the Congress which had received the sanction of judicial authority. But the Court concluded that that was not a pertinent subject, saying: Non nostrum est tantas oomponere lites, but unlil it can be considered as settled, that the ‘power to dispose of and make all needful rules and regulations respecting the territory, or other property belonging to the United States,’ is identical with the power to exercise exclusive legislation over such District as may become the seat of government, the practice of Congress in regard to the territorial government furnishes us no authoritative guide in the interpretation of the clause relating to the District of Columbia. [MacArthur and Mackey’s Reports at pages 182-183] Finally the Court ruled: Onr conclusion, on the whole, is, that the act of the Disti-ict legislature declaring judgments rendered by this court to be liens on equitable interests in land, was an act of legislation which it was only competent for the Congress of the United States to pass, and was in itself totally inoperative and void, and the decree rendered by the court below must be reversed. [MacArthur and Mackey’s Reports at page 187] In Cooper v. District of Columbia, MacArthur and Mackey’s Reports 250 (1880), the enactment of the Legislative Assembly of August 23, 1871, amended June 20, 1872, which was under consideration in Stouten-burgh v. Henuick, supra, in its application to persons soliciting in the District the sale of goods on behalf of those doing business outside of the District, was held within the rightful power of the Assembly in so far as it required produce dealers to take out a license. The Supreme Court of the District in General Term characterized Roach v. Van Riswick, supra, as follows: . . . All that was decided there was that Congress had no right to bestow upon the legislative assembly of the District any powers which were not necessary for it as a municipality; but the decision expressly, in more than one place, declares that whatever was granted by Congress to the legislative assembly of the District, in respect to matters properly pertaining to municipal government, was a valid grant. [MacArthur and Mackey’s Reports at page 251] In Smith v. Olcott, 19 App.D.C. 61 (1901), the validity of the enactment of the Legislative Assembly of August 23, 1871, amended June 20, 1872, was again in question, in that instance in respect of a provision fixing absolute fees and commissions for auctioneers in sales of real or personal property. The enactment was relied upon in justification of an item in a trustee’s account for auctioneer’s charges for a sale of real estate under a trust deed. This Court of Appeals held the enactment invalid. The court said: Congress has express power ‘to exercise exclusive legislation in all cases whatsoever,’ over the District of Columbia, thus possessing the combined powers of a general and of a State government in all cases where legislation is possible. But as the repository of the legislative power of the United States, Congress in creating the District of Columbia ‘a body corporate for municipal purposes,’ could only authorize it to exercise municipal powers. Applying this rule to the clause of the section, above quoted, we are of the opinion that its enactment was beyond the power conferred upon the District assembly. It is not a mere local regulation within the scope of the powers ordinarily delegated to municipal corporations, but an attempt at the exercise of a general legislative power over the freedom of contracts. It is essentially different from'the power exercised in other parts of the act in the matter of regulating the occupation of auctioneers, and laying a license tax upon the same. It also differs from those enactments, frequently made by municipal bodies under special delegations of power, which regulate the charges, by fixing a maximum rate, of all persons engaged in certain particular callings, as for example, hackmen who make special use of the public streets and places in the pursuit of their regular calling. It will be observed that the regulation in question docs not undertake to fix a maximum rate of charges for auctioneers, leaving parties free to contract for less if they see proper, but undertakes to prescribe one absolute, invariable charge for all sales of real estate. In ibis respect it resembles an act prescribing the fees of public officers, for official services compulsorily rendered, and which, as a matter of sound public policy, are not permitted to become the subject of special eon-tx-aet. [19 App.D.O. at page 75] In Coughlin v. District of Columbia, 25 App.D.C. 251 (1905), a Joint Resolution of Congress of February 26, 1892, 27 Stat. 394, empowered the Commissioners of the District “to make and enforce all such reasonable and usual police regulations in addition to those already made under the act of January twenty-sixth, eighteen hundred and eighty-seven, as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia. . ■ . .” This was held not to justify a regulation promulgated by the Commissioners (the regulation was stated to have been, copied from an old municipal ordinance of the City of Washington) requiring the owners or occupants of buildings or land fronting upon a paved sidewalk in the District to remove snow and ice therefrom. This court said: . . . it is regulation, not legislation, that is authorized; the reasonable regulation of the exercise of right, not the imposition of a duty; the usual police regulation for the maintenance of public order, not the levying of a tax either in the way of enforced labor or in the way of purchase of materials for sprinkling the sidewalks. Whatever power the legislature itself may have in the premises, certainly it is not to be presumed to have granted such plenary authority as is here claimed under the joint resolution of, 1892, That various municipalities may have exercised such power, as appears from various municipal ordinances collated in the brief on behalf of the appellee, is not to the point. Municipalities are usually vested with quasi legislative powers, among them the sovereign power of taxation and assessment, and from the fact that municipal ordinances are elsewhere to be found, analogous to the so-called regulation here in question, it is not to be inferred that similar powers exist in the commissioners of the District of Columbia. The commissioners are not the municipality, but only the executive organs of it; and Congress has reserved to itself, not only the power of legislation in the strict sense of the term, which it cannot constitutionally delegate to anyone or to any body of men, but even the power of enacting municipal ordinances, such as are within the ordinary scope of the authority of incorporated municipalities. It has delegated to the commissioners simply the power of making ‘police regulations,’ and only such police regulations as are usual and commonly known by that designation. [25 App.D.C. at pages 254-255] The decision was in part rested upon the ground that the Congress, on three occasions, had itself expressly legislated, although ineffectually, on the precise subject of the questioned regulation. That, the court said, was sufficient to show that the Congress had reserved this subject for itself and did not confer upon the Commissioners the power to regulate it. The court said: . . . Instead of an application to Congress there has been this ill-advised resurrection of an old municipal ordinance, and the promulgation of it by the commissioners as a regulation of their own, intended to effect what three several acts of Congress had failed to effect. We cannot but regard it as a plain usurpation of the powers of Congress. [25 App.D.C. at page 257] In United States ex rel. Daly v. MacFar-land, 28 App.D.C. 552 (1907), it appeared that under an Act of April 23, 1892, 27 Stat. 21, and an Act of March 3, 1893, 27 Stat. 537, the Congress had extended to the Commissioners of the District power to make plumbing regulations, and had provided that .violation of such regulations should be punishable by'fine or, in default of payment thereof, by imprisonment. The Commissioners promulgated regulations, but included therein an additional penalty for violation, to wit, the revocation of a plumber’s license. Acting under the regulations thus promulgated, the Commissioners forfeited a license. In a mandamus proceeding to compel restoration of the same, this court held that it was not within the power of the Commissioners to provide the additional penalty. The court said: It is well settled that the District of Columbia has no legislative power, it being merely a municipal corporation bearing the same relation to Congress that a city does to the legislature of the State in which it is incorporated. [Citing authorities] The next proposition is equally established, namely, that ‘a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.’ Dill. Mun. Corp. 4th ed. Sec. 89. # * * * . . . The constitutional guaranties of the liberty and property of the individual undoubtedly include and protect him in the exercise of his right to earn his living by following a lawful calling, and this right is subject only to reasonable control. That such a license as was revoked in this case is a species of property goes without saying. The right to forfeit this property by the revocation of the license must clearly appear, or it must be held not to exist. Judge Dillon says (sec. 345): ‘A corporation, under a general power to .make by-laws, cannot make a by-law ordaining a forfeiture of property. To warrant the exercise of such an extraordinary authority by a local and limited jurisdiction, the rule is reasonably adopted that it must be plainly, if not, indeed, expressly conferred by the legislature.’ Certainly such power will not be presumed to exist in statutes in restraint of the ordinary and legitimate avocations of life, avocations in which the mass of human toilers gain their livelihood and contribute to the welfare and happiness of society. In Greater New York Athletic Club v. Wurster, supra, [19 Misc. 443, 43 N.Y.S. 705] the court held that a grant of power to abridge and curtail the exercise of the right of the individual to engage in or pursue a business or calling lawful in itself can only be justified and sustained on the theory that the exercise of such power is necessary to the public welfare and safety, and such power cannot be presumed, but must be clearly expressed. [28 App.D.C. at pages 558-562] In Johnson v. District of Columbia, 30 App.D.C. 520 (1908), this court ruled that Sections 1 and 2 of the Act of August 23, 1871, of the Legislative Assembly, prescribing a jail penalty or fine, or both, for cruelty to animals were mere police regulation. The court said: We think it clear that the two sections of the Act above referred to . are mere police regulation, and therefore within the scope of powers delegated to the municipality by Congress. Stoutenburgh v. Hennick, 129 U. S. 141, 32 L.Ed. 637, 9 Sup.Ct.Rep. 256; Smith v. Olcott, 19 App.D.C. 61. Cruel treatment of helpless animals at once arouses the sympathy and indignation of every person possessed of human instincts, — sympathy for the helpless creature abused, and indignation towards the perpetrator of the act; and in a city, where such treatment would be witnessed by many, legislation like that in question is in the interest of peace and order and conduces to the morals and general welfare of the community. ‘Daws for the prevention of cruelty to animals may well be regarded as an exercise of such police powers. That good government calls for the condemnation of such acts as are prohibited by the ordinance ought not to be questioned. The subject is pre-eminently one for local municipal regulation.’ St. Louis v. Schoenbusch, 95 Mo. 618, 8 S.W. 791, [30 App. D.C. at page 522] ■ In United States v. Celia, 37 App.D.C. 433 (1911), there was involved an indictment charging violation of an Act of March 1, 1909, 35 Stat. 670, which prohibited bucketing and bucket shopping and abolished bucket shops. The prosecution was in the name of the United States. It was contended by the defendant that it should have been in the name of the District of Columbia, this in view of Section 932 of Chapter 20 of the Code, 31 Stat. 1340, relating to criminal procedure and providing that: Prosecutions for violation of all police or municipal ordinances or regulations, and for violation of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the city solicitor or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants. The decision of this court turned upon the question whether or not the bucket shop act was a police or municipal ordinance or regulation or a penal statute in the nature of a police or municipal regulation, or whether it created and denounced a general offense. In holding that it did the latter, the court said: We have said in the prior case that there can be no crimes against the District of Columbia, the District not being a sovereignty; that crimes committed here are crimes against the United States. Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 33 L.Ed. 231, 10 Sup.Ct.Rep. 9[19]. Congress, in the exercise of its plenary power, has prescribed the procedure to be followed in the prosecution of offenses in the District. It has ordained that prosecutions for violations of all police or municipal ordinances or regulations, and penal statutes ‘in the nature of police or municipal regulations,’ shall be in the name of the District. It is at once apparent, therefore, that the point raised by appellees is purely technical in character, as no substantial right is involved. Looking to the context, and having in mind the probable intent of Congress, what is the scope of the words ‘penal statutes in the nature of police or municipal regulations,’ as used in the statute under consideration? A municipal ordinance or police regulation is peculiarly applicable to the inhabitants of a particular place; in other words, it is local in character. While municipal ordinances or police regulations are binding upon the community affected by them, they do not emanate from the supreme power of the state, which is the exclusive source of all general legislation. Baldwin v. Philadelphia, 99 Pa. 170; Rutherford v. Swink, 96 Tenn. 564, 35 S.W. 554. When, therefore, Congress required prosecutions for violations of statutes in the nature of police or municipal regulations to be in the name of the District of Columbia, it undoubtedly had in mind such local regulations as were peculiarly applicable to conditions here existing. It did not, we think, intend to require or permit prosecutions under general penal statutes to be in the name of the District of Columbia, even though the territorial scope of such statutes was restricted to the District. A statute making it an offense for a motor vehicle to exceed a certain limit of speed within the city limits would clearly be a penal statute in the nature of a police regulation. Such a statute would be designed to regulate the speed of motor vehicles in accordance with the requirements of local conditions. The bucket shop statute under consideration, however, is of a different character. We find that statute in the chapter of the Code devoted to crimes and punishments, and in a sub-chapter governing offenses against public policy. The commission of the offense would be as much against public policy in one place as in another; in other words, while the statute is local in its application, it deals with a subject-matter general in character. Admittedly, a prosecution for a second offense under the act must be in the name of the United States, since the punishment for such an offense may be imprisonment for five years. No reason is apparent why a prosecution for a first offense should not also be in the name of the United States. Moreover this statute does not purport to regulate the business of bucketing, but, on the contrary, is designed absolutely to prohibit it. While the authority to enact such a statute may be ascribed to the police power, as indeed may be the authority to enact all criminal statutes, we think, nevertheless, that the act is something more than one in the nature of a police or municipal regulation; that it creates and denounces a general offense, and hence that prosecution thereunder was rightly commenced in the name of the United States. [37 App.D.C. at pages 435-436] It is correctly suggested in Roach v. Van Riswick, that, for lack of a precise criterion, the determination of what powers are strictly “municipal” and may therefore rightly be conferred upon local corporations, and what powers are properly “legislative” and cannot therefore be delegated, is not always without difficulty. But we think that the constitutional provisions and principles and the rulings and reasoning above reviewed — which for this court are authoritative — clearly require the conclusion that the enactments of the Legislative Assembly 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 Legislative Assembly. In requiring restaurant keepers, upon pain of fine and license forfeiture, to serve any respectable, well-behaved person without regard to race, color, or previous 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 calling. Before the enactments, he could choose customers according to his own business or personal desire. The enactments lift restaurant keeping, theretofore strictly a private enterprise, to the level of a “public employment” —thereby altering the common law, which required inns, but not restaurants, to serve all travellers. Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906 (1946); Nance v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773 (1944); Beale, Innkeepers and Hotels, 1906, §§ 15, 35, 53, 61, 301; Williston, Contracts (Rev.Ed. v. 4, § 1066, pp. 2964, 2965); 43 C.J.S., Innkeepers, § 2, p. 1136. The enactments do not relate, in the usual sense of the terms, “to the promotion or protection of the public morals and decency, the securing of the public safety against fires, explosions, riot or disorder, or other dangers to life and limb, the preservation of the public peace and order, the furtherance of sanitation and the safeguarding of the public health” which are the ordinary subjects of municipal regulation. Moreover, the essential object of the enactments was to prevent in restaurants — and in the other businesses enumerated — discrimination on account of race, color, or previous condition of servitude, notwithstanding that such discrimination was customary in the District of Columbia at the time the enactments were promulgated. The enactments are in the nature of civil rights legislation. They undertake to establish in the restaurant business, and in the other businesses named, a policy of equal service without respect to race or color, and to enforce that policy by a fine and license forfeiture. Finally, the enactments, though applicable only in the District of Columbia, are, because they are applicable in the Nation’s capital, of national interest. In view of the purpose and effect of the enactments •as above described, we think that no other conclusion can reasonably he reached than that they were of the character of general legislation, the power to enact which the Congress could not constitutionally delegate to the Assembly. We think also that in the Act of February 21, 1871, creating the District government and the Legislative Assembly, the Congress did not attempt to endow the Assembly with power to enact such measures as are the subject of the instant appeals. The Congress made no express grant of power to the Assembly to enact such measures, and in our view such power is not fairly or necessarily to be inferred from the powers granted in the Act, and the power to enact such measures was not indispensable to the carrying out of the corporate objects of the District of Columbia as those objects appear from the Act. We are referred to the so-called “Jim Crow Cases”: Boyer v. Garrett, 183 F. 2d 582 (4 Cir., 1950); Bunn v. City of Atlanta, 67 Ga.App. 147, 19 S.E.2d 553 (1942); Housing Authority of City of Dallas v. Higginbotham (Tex.Civ.App.) 143 S.W.2d 95 (1940); Hopkins v. City of Richmond, 117 Va. 629, 86 S.E. 139 (1915) overruled on constitutional grounds, other than delegability, in Irvine v. City of Clifton Forge, 124 Va. 781, 97 S.E. 310(1918); Patterson v. Taylor, 51 Fla. 275, 40 So. 493 (1906); Crooms v. Schad, 51 Fla. 168, 40 So. 497 (1906); Mayo v. James, 12 Grat. 17 (Va.) (1855); Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849). Those cases uphold as within the bounds of municipal power ordinances requiring segregation of the white and colored races: For example, in Patterson v. Taylor, an ordinance requiring separate accommodation for, and the separation of white and colored passengers on, streetcars; in Hopkins v. City of Richmond, ordinances requiring residential segregation for members of the white and colored races; in Boyer v. Garrett, an ordinance for the segregation of races in athletic activities in public parks and playgrounds. We think such cases distinguishable from the instant case because in such cases the ordinances were in accord with a local custom of racial segregation on account of color and were held valid upon the theory that they were for the purpose of preserving peace and good order which would likely be interfered with by racial association. Ordinances in aid of the preservation of peace and order are indisputably within municipal power. The enactments involved in the instant case were in conflict with local custom in respect of race association and cannot therefore be justified as in aid of the preservation of peace and order. Moreover the cases cited are not authoritative in this jurisdiction. The brief for the District of Columbia refers to certain Acts of Congress and to . certain enactments of various municipal authorities in the District of Columbia prior to the Legislative Assembly enactments of 1872 and 1873 which are in question in the instant case. We describe in the margin the prior Acts and enactments referred to.'* The District contends that they evidence that the Congress regarded such enactments of the municipal authorities, including the enactment of March 7, 1870 of the 67th Council of the City of Washington — which the enactments of 1872 and 1873 of the Legislative Assembly substantially parallelled — as within the proper power of the municipal authorities. We think this contention not correct, especially in view of the fact that in Section 1 of the Act of February 21, 1871, creating the District Government and the Legislative Assembly, the Congress provided that the District Government should, inter alia,, “exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions ■of this Act.” (Emphasis supplied.) But .assuming that the Congress did regard the municipal enactments in question as within municipal power, that is not decisive of the question as to their validity. That question must be determined by the courts. We are referred to no judicial decision upholding, as within the power of the municipal .authorities of the District, the enactments referred to. II. The conclusion reached in the previous topic that the enactments of the Legislative Assembly of 1872 and 1873 are of the character of general legislation requires the further conclusion that they were repealed by the District of Columbia Code of 1901, Act of March 3, 1901, 31 Stat. 1189. Section 1 of that Code provided that: The common law, all British statutes in force in Maryland on the twenty-seventh day of Ifeb-ruary, eighteen hundred and one, the principles of equity and admiralty, all general acts of Congress not locally inapplicable in the District 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. That section did not expressly preserve enactments of the Legislative Assembly. Such enactments were, however, dealt with by § 1636 of the Code which provided: All acts and parts of acts of the general assembly of the State of Maryland general and permanent in their nature, all like acts and parts of acts of the 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, except: * * * That was an express repeal of all enactments of the Legislative Assembly not saved from repeal by eight exceptions which were expressly set forth in the Section. The only exceptions pertinent to the present inquiry are the Third and the Fifth. The Third exception named: 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 Columbia, or their subordinates or employees, or to police regulations, and generally all acts and parts of acts relating to municipal affairs only, including those regulating the charges of public-service corporations. That exception did not save the Assembly enactments of 1872 and 1873 for the reason that those enactments, as we have demonstrated in the previous topic, were not acts in the nature of police regulations, or acts relating to municipal affairs only; and those enactments obviously are not within the other acts and parts of acts mentioned in the Third exception. The Fifth exception saved from repeal: All penal statutes authorizing punishment by fine only or by imprisonment not exceeding one year, or both. As indicated at the outset of this opinion, the enactments of the Assembly of 1872 and 1873 provide that upon conviction of the offenses defined a restaurant keeper shall be fined one hundred dollars and also forfeit his license. If the forfeiture provisions are in the nature of a penalty rather than being merely remedial, then the enactments were not saved by the Fifth exception because,they were not within the class of penal statutes which that Section expressly saved. We think it clear that the license forfeiture provisions of the enactments of 1872 and 1873 are in the nature of penalties. The 1872 enactment makes violation a misdemeanor; the 1873 enactment provides for enforcement by information filed in the Police Court of the District of Columbia, subject to appeal to the Criminal Court of the District in the same manner as provided for the enforcement “of the District fines and penalties' under ordinances and law.” The license forfeiture provisions are an integral part of those sanctions. III. According to the “Agreed Statement of Facts” filed in the Municipal Court in the instant case: There is no official record of any attempted prosecutions for violations of the terms of the Legislative Assembly Act of June 20, 1872; . . . upon information and belief there were four such prosecutions, all resulting in convictions in the Police Court but all being reversed in the Supreme Court of the District of Columbia, holding criminal court, or resulted in nolle pros; all four such prosecutions were in the' year 1872 and there have been no further attempted prosecutions under the 1872 Act since that year. . . . [Tjliere is no official record of any attempted prosecutions under the terms of the Legislative Act of June 26, 1873, and, so far as can be learned, there was never an attempt of prosecution under that Act. The 1873 enactment required, in addition to the serving of any well-behaved and respectable person, the transmission to the “Register of said District” of “a printed copy of the usual or common price or prices of articles or things kept for sale by him . which shall 'be filed 'by the Register ., . . and in a failure of any proprietor ... to transmit the copy aforesaid, the said Register shall notify such person of such failure, and require such copy to be forthwith transmitted to him.” According to the “Agreed Statement of Facts”: . . . the records of the District of Columbia fail to show that any local restaurant or eating house ever filed - with. the Assessor [sic] for the District of Columbia a printed or other copy of its usual or common prices of articles kept by it for sale, as required by the Act of June 26, 1873, and, so far, as is known, no demands were ever made upon local' restaurants so to file by the Assessor [sic] or other municipal officer. The Thompson Company asserts that the failure of the municipal authorities to enforce the Assembly enactments of 1872 and 1873 constitutes an administrative interpretation that the enactments were not in force and effect, and urges that the enactments have been repealed by this “long course of administrative interpretation or by obsolescence.” In view of the conclusion we reach in Topics I and II of this opinion — that the enactments were not within the power of the Assembly and that they were repealed by the 1901 Code, we think it not necessary to rule upon these additional contentions. But we think it appropriate to comment, in this connection, that the enactments having lain unenforced for 78 years, in the face of a custom of race disassociation in the District, the decision of the municipal authorities to enforce them now, by the prosecution of the instant case, was, in-effect, a decision legislative in character. That is to say, it was a determination that the enactments reflect a'social policy which is now correct, although it was not correct —else- the enactments would have been- enforced — heretofore. Such a decision were-better left, we think, to the Congress. And in ruling that the enactments of 1872 and 1873 cannot, because not within the power of the Assembly, and because repealed, support the present prosecution, this court rules upon the question of their validity alone and not upon the question of the-wisdom of the policy which they, reflect. That question is not within the proper province of either the municipal authorities, or the courts; it is for Congressional determination. In accordance with the conclusions we-reach that the enactments in question in the instant case were not within the power of the Legislative Assembly and that they were repealed, and in view of Circuit Judge PRETTYMAN’S view expressed in his separate opinion that if the enactments were general legislation they were invalid when enacted and were repealed, that if they were municipal ordinances regulatory of licensed businesses they are now unenforceable : The judgment of the Municipal Court of Appeals as to the first count of the information is affirmed, and as to the second, third and fourth counts of the information is reversed. PRETTYMAN, Circuit Judge, concurring in the judgment announced by Chief Judge STEPHENS. The question upon these appeals is whether an information charging the restaurant owner, Thompson Company, Inc., with violation of certain 1872 and 1873 acts of the Legislative Assembly can validly be prosecuted. The nature of those enactments constitutes the initial premise from which any course of reasoning toward a conclusion must proceed. There are two possible views. Either they were general legislation, e. g., relating to civil rights, use of property, validity of contracts, or similar subjects; or they were municipal ordinances regulatory of licensed businesses. It is my opinion that upon proper reasoning from either view the conclusion is reached that the enactments are presently unenforceable. The Judges who join Chief Judge STEPHENS take the former view. There are reasons, which he describes, which support that view. From that premise I think the next steps in his opinion follow inevitably. If the enactments constituted legislation they were invalid when enacted by the Legislative Assembly, being beyond the power permitted a municipal body in the District of Columbia by the Constitution; and, furthermore, even if valid when enacted they were repealed by the express provision of the 1901 Code. The judges who, join Judge FAHY take the other view of the nature of the enactments. They would hold that the enactments are regulatory municipal ordinances. There are reasons, which Judge FAHY describes, which support that view. But it seems to me that, if that premise be adopted, the same ultimate conclusion, that the enactments are presently unenforceable, must follow. We must keep in mind that when we consider the enactments from this latter viewpoint we are considering acts of a municipal authority, not acts of Congress; regulatory ordinances, not statutes; acts of an official body having power to repeal or abandon these regulations, not of a body without such power. It seems to me that a regulatory condition, imposed upon a business license, originally prescribed by a municipal licensing authority in 1872 and 1873 but neither mentioned again nor enforced for a period of 75 years, despite the interim promulgation of apparently complete regulations and the issuance of thousands of licenses during that period, must be deemed by the courts to have been abandoned by the licensing authority. No prosecution under these enactments has been attempted since 1872. No mention of them has been made by any official since 1873. No official text or record of their passage exists, the text and record with which we are dealing being gleaned from unofficial compilations, newspapers, and such. Congress has passed licensing acts several times since 1873, general acts in 1902 and 1932, and an act giving the Commissioners power to prescribe regulations for the sale of alcoholic beverages, an important part of many restaurant businesses, under licenses. The latter contained many regulatory provisions and authorized the Commissioners to prescribe others. The enactments of 1872 and 1873 applied to barrooms as well as to restaurants. Extended regulations for the operation of restaurants have been promulgated at least once by the Commissioners; in 1942 the Commissioners published an order which began: “That for the purpose of regulating the establishment, maintenance and operation of restaurants, delicatessens and catering establishments in the District of Columbia, the following regulations are hereby adopted: * * In none of the statutes or regulations adopted since 1873 have the regulations with which we are here concerned been mentioned or referred to. In fact the existence of any such regulation was unknown to the licensing authorities for many years, probably half a century. In all this period of time restaurants in this jurisdiction have exercised a power to select their customers. A rapidly increasing number have served all well-behaved persons, but it is not represented to us that any of them thought this policy •obligatory. Many have limited their clientele. I am fully aware of the principle, often stated, that a statute is not repealed by disuse and also that the doctrine of desuetude, recognized and applied in the Scottish law, had no place in the English common law. But that principle (that a statute lives in full force despite nonuse) rests upon the proposition that the executive branch of government cannot nullify an act of the legislative branch by failure to enforce, any more than it can effect a repeal by direct fiat. Our present consideration does not involve that proposition. Since 1878 the Board of Commissioners has been the governing body of the District of Columbia, which is a municipal corporation. They have had the power both to make and to enforce municipal regulations and generally to exercise all the usual powers of a municipal corporation. Theirs have been the powers of local ordinance-making and of law enforcement. They could repeal what they could enact. Thus the failure to restate and to enforce the 1872-73 conditions was by an official body which had power to do just that. Executive disuse of a legislative enactment is not involved. What is involved is disuse by a licensing authority of its own regulations. If a municipal licensing authority should say, “Hereafter operations of licensed restaurants shall be subject to the following regulations: (a), (b), (c) and (d),” and a few years later should say, “Hereafter operations of licensed restaurants shall be subject to the following regulations: (a), (b) and (c),” no one would contend, I should think, that a restaurant operator could be prosecuted for failure to observe regulation (d) after the latter announcement. It seems to me that regulation (d) would be deemed by the courts to have been abandoned for the later period. It makes no difference whether the result be labeled abandonment, desuetude,