Curry v. District of Columbia

14 App. D.C. 423, 1899 U.S. App. LEXIS 3572

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 4, 1899
• Docket: No. 864
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

The contention of the appellant is: (1) That the Joint Resolution of Congress of June 7,1898, was unconstitutional and void; (2) That the regulation made by the Commissioners on October 20, 1898, is unconstitutional, unreasonable, contrary to public policy and void; and, (3) That the evidence failed to show that the appellant was guilty of any offense.

1. With reference to the last mentioned ground of argument, which we will proceed to consider first, we do not find that the act charged against the appellant in this case is, by any legislative enactment, municipal ordinance, or regulation made by the Commissioners, constituted a criminal offense or misdemeanor, punishable with any penalty. We have sought in vain through the acts of Congress and the municipal ordinances and regulations of the District of Columbia to find any enactment to that effect. The regulation of October 20, 1898, contains no penalty for its violation, even if it could be said that there was anything in the regulation which the appellant had violated; and there is nothing in the general police regulations which makes the act of the appellant punishable in any tribunal of criminal jurisdiction.

The general police regulations in force prior to July 1, 1898, provided that the major of police should, from time to time, under the direction of the Commissioners, establish, declare and designate stands for vehicles, on the streets or other public places within the District, together with the number and kind of vehicles which might occupy such stands, and the hours within which such stands might be used, and that no vehicle should occupy such stands except in accordance with the instructions and regulations of the major of police in that regard. The amended regulations of July 1, 1898, with some apparent inconsistency, retained this provision, and yet proceeded themselves to designate the places which should be occupied as stands, among them the two streets adjoining the Baltimore and Potomac Railroad station as already indicated. Both sets of regulations provided that “any person violating any of the provisions of this article (in regard to hack stands) should, on conviction thereof, be punished by a fine,” which by the later regulations was to be not less than one dollar and not more than forty dollars.

Now, nowhere in either set of regulations is there, either by express language or by the force of necessary implication, any prohibition upon one person to intrude or trespass upon a stand set apart exclusively for the use of another, for the very sufficient reason that it was not then sought to set apart any stand for the exclusive use of any person, and of course there was no penalty where there was no prohibition. When subsequently, by the regulation of October 20, 1898, it was sought to set apart a stand for such exclusive use, and no penalty was provided for any attempt by other persons to invade that use, it is very plain that no penalty provided for previously existing misdemeanors could be regarded as applicable to the new conditions. The criminal code, even in the matter of offenses against municipal regulations, can not be enlarged in that way. The act of the appellant may have been a trespass; but it does not appear how it could have been a misdemeanor.

2. In the next place, the regulation of October 20, 1898, can not be said in any proper sense to be authorized by the Joint Resolution of Congress of June 9,1898. The Philadelphia, Wilmington and Baltimore Railroad Company, to which the exclusive concession is made by the Commissioners in their regulation, is not in the category of railroad companies specified in the joint resolution. That company owns no station in the District of Columbia. We are not advised that it has ever been authorized by any Act of Congress to enter this District. We know, as matter of public notoriety, that it is the company which owns and operates one of the railroads extending from the city of Baltimore to the city of Philadelphia, and that it has no existence whatever by legislative recognition within the District of Columbia. The station mentioned is the station of the Baltimore and Potomac Railroad Company; and by the express language of the statute, the cab service to be established in proximity to this station is to be established by the Baltimore and Potomac Railroad Company, and not by the Philadelphia, Wilmington and Baltimore Railroad Company. That both companies, as is also matter of public notoriety, are controlled, and, it may be said, owned by one organization, a third company, the Pennsylvania Railroad Company, can make no difference in this connection. This is a penal statute in so far as it seeks to charge the appellant with a misdemeanor; and it is well settled law that penal statutes must be strictly construed. Under the joint resolution the Commissioners were not authorized to grant any such concession as is sought here to be granted to the Philadelphia, Wilmington and Baltimore Railroad Company; and to that extent at all events their regulation is null and void, and can form no basis for the prosecution of this appellant. Whether under previously existing laws they could have granted to this railroad company an exclusive license to occupy the stand in question is of no consequence here; for they profess to have acted under the joint resolution, and this joint resolution, as we have noted, restricted the grant to the railroad companies owning the adjacent stations.

3. But while either one of these two considerations, which we have discussed, must necessarily operate to render invalid the prosecution against the appellant, and to require his discharge therefrom, it is useless to ignore the fact that both of them rest upon premises which it is in the power of the Commissioners so to modify or materially alter at any moment as to present new conditions free from the objections which we regard as fatal to the present prosecution. They may make their concession to the Baltimore and Potomac Railroad Company; and they may in express terms prohibit intrusion upon the stand by any others than the employees of that company, and prescribe a proper penalty for intrusion. And we may properly suppose that, if we fail to go farther and to decide the fundamental question in this case, they may deem it their duty, as they would have good reason to believe it was, at once to frame their regulation "in such manner as that it would be unobjectionable on ’either of the grounds on which thus far we have held it invalid. To such new regulation the same opposition would undoubtedly be manifested; and the result would be the institution of new prosecutions and new appeals to this court. It is eminently proper, therefore, that we should determine, as far as we may, the question which is fairly presented to us of the unconstitutionality of the legislation here involved.

The power of Congress to legislate for the District of Columbia in all matters proper for legislation, whether of a general political nature or of merely municipal character, is given by the Constitution of the United States; and the extent of that power we regard as well established by ■judicial authority. The power is exclusive, but it is not unlimited, nor is it arbitrary. There is no place in our governmental system for arbitrary or unlimited power. Our institutions are radically at variance with tbe theory of the existence of any such power anywhere in our country. In the case of Loan Association v. Topeka, 20 Wall. 622, the Supreme Court of the United States, by Mr. Justice Miller, said:

“The theory of our Government, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined power. There are limitations on such power which grow out of the nature of all free governments — implied reservations of individual •rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer, but that A should thereafter be the husband of C, and B the wife of D, or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B.”

The power of Congress in the District of Columbia, as elsewhere throughout the Federal Union, is distinctly limited by all the express guaranties of individual right contained in the Federal Constitution. No more in the District of Columbia than anywhere else within the United States, could the legislature of the Union pass a bill of attainder or an ex post facto law, or dispense with trial by jury, or establish a religion, or authorize unreasonable searches. All the general limitations imposed by the Constitution upon its .authority are as applicable in the District of Columbia as in any other part of the United States. And not only are these express limitations applicable, but, in the language of Mr. Justice Miller, in the case just cited, all the “implied limitations which grow out of the nature of all free governments” are equally applicable. The “exclusive” power of legislation over this District which is vested in Congress by the Constitution, must be assumed to extend only to all lawful subjects of legislation; and invasions of those fundamental individual rights, which lie at the foundation of the social compact, and for the maintenance of which free governments exist, are not lawful subjects of legislation.

The Declaration of Independence is not, as has sometimes been flippantly asserted, a mere string of glittering generalities. It is a bill of rights which enters fundamentally into the structure of our Government; and the one great fundamental truth, which it seeks to enforce, is the doctrine of the equality of all men before the law. That doctrine is not again proclaimed in our Federal Constitution. It is nowhere referred to in the Constitution before the adoption of the Fourteenth Amendment. But in that Amendment it was assumed as a cardinal principle of our republican institutions, and it was made obligatory upon the States, as such, that they “ should not deny to any person within their jurisdiction the equal protection of the laws.” Without the equal protection of the laws republican institutions can not exist. In fact, there is no civilized government of modern times that is not based, in theory at least, upon the principle of the equal protection of the laws to all citizens, although the practice is often halting and the influences of a baneful inequality in the past have not been wholly eliminated from the political system.

Now, the theory of equal rights before the law is' antagonistic to the existence of monopolies, or to the grant of exclusive privileges; for the grant of exclusive privileges to one person necessarily means the exclusion of all others from some right to which otherwise they would be entitled. Such grants, therefore, are not within the province of the legislature to make, either directly by its own act, or indirectly through concession by some subordinate authority.

It'is true that for the more effectual performance of its own functions, and sometimes also in the exercise of its police power, the State may grant privileges which practically operate as monopolies. This may occur in either one of two classes of cases. The first class is, where the State admits an individual or a corporation to aid it in the performance of some of its own public duties; as, for example, in the construction and operation of lines of railroad and telegraph, or in the supply of gas and water to cities, or in the establishment of a bank or banks in aid of its financial operations ; and the second class is the case of occupations recognized to b.e generally dangerous or deleterious, such as the manufacture and storage of gunpowder or other explosive materials, the manufacture of soap, the slaughtering of animals for food, the sale of intoxicating liquors, and the like. With reference to the first class of cases, it is plain that no private right is injured by the concession of exclusive privilege, since there is no private right to do the act or to enter upon the business specified without the consent of the State ; and with reference to the second class, the universal recognition by society that the occupation is deleterious or dangerous is sufficient warrant for the State, in defense of the public safety, to interfere for'the limitation, or even absolute prohibition, of the pursuit. See Slaughter House Cases, 16 Wall. 36 ; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 764; Civil Rights Cases, 109 U. S. 3.

But where there is a business, such as are the vast majoi'ity of avocations, which all may equally pursue with benefit to themselves and to the community, which is not in itself injurious or objectionable, and which has been at all times freely pursued by those desirous to engage in it without let or hindrance or other restrictions than those demanded by the excise laws or by the safety and comfort of the community, it is not within the province of the legislature or of any subordinate authority to prohibit such business or to discriminate arbitrarily in regard to it in favor of one person and against another; for if discrimination is allowable prohibition is allowable; and both are equally obnoxious to our -free institutions. Indeed, to our ordinary sense of justice, discrimination is more obnoxious than prohibition.

In the cases of Cummings v. Missouri, 4 Wall. 27; Ex parte Garland, 4 Wall. 333, and Dent v. West Virginia, 129 U. S. 114, this question came under the consideration of the Supreme Court of the United States. In the first of these cases the court, by Mr. Justice Field, said:

“ The theory upon which our political institutions rest is, that all men have certain inalienable rights — that, among these, are life, liberty and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law.”

The same principle was re-enunciated in the case of Ex parte Garland; and in the case of Dent v. West Virginia it was still more fully elaborated by the same court, speaking through the same justice who had written the opinions in ■the previous cases. There it was said :

“It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex or condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to everyone on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and can not be arbitrarily taken from them any more than their real or personal property can be thus taken.”

Similar expositions of the law might be gathered from decisions of the State courts, which are all of one accord in this matter; but it is unnecessary to multiply citations, where there is no reasonable ground of controversy.

The contention, however, is that, inasmuch as the State may make reasonable regulations for the prosecution of any business or avocation, which is a limitation that is not controverted by anyone, the provision in the present case should be regarded as a mere regulation intended to promote the public convenience, and not as an improper interference with individual rights. But we do not so understand the effect either of the joint resolution of Congress or of the regulation made by the Commissioners.

Plainly, the effect of the regulation made by the Commissioners is to give an undue preference to the railroad company, and absolutely to prohibit all other persons from engaging in a lawful and unobjectionable business at the place designated. Now, while it may be competent for the Commissioners for good cause wholly to prohibit such business at the place designated, it is not competent for them to disregard the principle of equality of right and to allow the business to be carried on by one person and to prohibit all others from engaging in it. It is candidly conceded that, if they may lawfully do this, they may equally discriminate all over the city, and may exclude all other persons than this one railroad company from engaging in the business. We can not admit the existence of any such authority in the Commissioners, or any power in Congress to grant it to them. This is precisely the kind of power which, in the cases above cited, the Supreme Court of the United States has decided not to exist in our country.

• The regulation of the Commissioners, therefore, in so far as it assumes to confer exclusive privileges on the railroad company, must be regarded as void and of no force in law. And so far as the joint resolution of Congress can be construed "as authorizing a concession of such exclusive privileges, that joint resolution likewise must be taken as equally obnoxious to the principle of equality and equally invalid. If, however, the joint resolution is to be construed simply as giv ing the railroad company the power to conduct a cab business in the District of Columbia upon equal terms with other persons, and the principle of equality can be subserved by the assignment of a portion of the stand in question to the railroad company and of a portion to other persons, in regard to which it is unnecessary here to express an opinion, inasmuch as there is no such case before us, it is possible that the joint resolution might be taken as unobjectionable. It is evident that the Commissioners construed the resolution as authorizing them to give the preference which they gave to the railroad company; and it is this construction and the action of the Commissioners in pursuance of such construction which we regard as being in violation of the Constitution and of common right.

We do not ignore the argument of convenience that has been urged upon us, to the effect that the cab or hack service heretofore rendered in this District lias been, as alleged, quite inefficient; that the service rendered by the railroad company is of a very superior character; and that it is within the scope of the police power of the State to promote the comfort and convenience of the people, as well as the public health, the public safety, the public morals, or the general good order of society, by the grant of exclusive privileges. We can readily believe that the railroad company will render most efficient and satisfactory service in the' premises. It may not be improper to take judicial notice of the fact that whatever service the Pennsylvania Railroad Company, which, it is conceded, dominates and controls the other two railroad companies that have been mentioned, has heretofore undertaken to render to the public, it has performed such service with eminent satisfaction; and we are therefore justified in assuming that the service proposed to be rendered in this case under the same auspices will likewise be rendered with entire satisfaction to the public. But the question here is not one of convenience to the railroad company or its patrons, nor one of better service to the public, but one of equality of right before' the law. The comfort of the public is not to be subserved by the destruction of private right or the subversion of a fundamental principle of all free government.

Thp streets of the city of Washington are for the equal use of all the public; and it is violation of the fundamental principle of equality to attempt to give an exclusive privilege in them, or in any part of them, to any one person, company or organization whatsoever, to the exclusion of others equally entitled. If the service proposed to be rendered by the railroad company is of so superior character as to be entitled to supersede in the estimation of the public all other effort in the same direction by private persons, it will be easy to accomplish the desired result, and even to create a monopoly such as will not be offensive to the law, by the establishment of the service by the railroad company upon its own ground, instead of the public streets of the city, and by the manifestation there of its superiority by the way of a test in fair competition.

It is our opinion that the regulation of October 20, 1898, was not authorized by the Joint Resolution of Congress of June 7, 1898, and is therefore null and void. And we are further of the opinion that this joint resolution can not be validly or properly construed in such manner as to justify the concession by the Commissioners of any exclusive privilege in the premises.

It follows that the judgment of the Police Court, which we understand to have been substantially a judgment pro forma, must be reversed. The cause will be remanded to that court, with directions to vacate such judgment, to quash the information, and to discharge the defendant.

And it is so ordered.