District of Columbia v. Hauf

33 App. D.C. 197, 1909 U.S. App. LEXIS 6048

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 6, 1909
• Docket: No. 1966
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first question to be considered is the jurisdiction of this court to review the order quashing the information. We have heretofore held that this court has no power to entertain an appeal by the United States from a judgment of the supreme court of the District, declaring a defendant not guilty of the offense charged against him, for the purpose of reviewing alleged errors committed in the trial, without affecting the finality of the judgment. United States v. Evans, 30 App. D. C. 58. And the same ruling has been made to apply to a writ of error to the police court under the same conditions. District of Columbia v. Burns, 32 App. D. C. 203. But those decisions do not govern this case, because there has been no trial on the merits, — no adjudication of not guilty. The police court refused to proceed to trial, because it held the ordinance invalid. The defendant has not been put in jeopardy, and may, therefore, be rearrested and brought to trial upon the charge in case the judgment quashing the information be' reversed. Code, Sec. 935 [31 Stat. at L. 1341, chap. 854] ; United States v. Evans, 28 App. D. C. 264; 30 App. D. C. 58, 61.

2. The next question is whether the ordinance of the late corporation of the city of Washington, hereinbefore recited, is still in force.

At the time of the enacting of said ordinance there were three separate forms of municipal government in the District of Columbia. These were the corporation of the city of Washington, the corporation of the city of Georgetown, and the levy court. The charters of the two cities controlled in the territories comprised within the designated limits of said cities respectively. The jurisdiction of the levy court extended to all the territory of the District not included in the limits of said cities.

By act of Congress, approved February 21, 1871, the charters of the two cities were repealed, and the levy court abolished. A new form of municipal government was created for the entire District. 16 Stat. at L. 419, chap. 62. Section 40 of said act, in repealing the city charters, provided that the portion of the District included within the limits of each shall continue to be known as the city of Washington and the city of Georgetown, respectively; and further as follows: “But all laws and ordinances of said cities, respectively, and of said levy court, not inconsistent with this act, shall remain in full force until modified or repealed by Congress or the legislative assembly of said District.” Evidently, this saving clause was not intended to extend the operation of any unrepealed ordinance beyond the limits of the municipal government by which it had been enacted. In many instances the several corporations had promulgated ordinances and regulations relating to the same general subject-matter, but differing in their provisions. For example, the city of Georgetown had an ordinance, adopted in 1806, and amended in 1808, regulating the sizes of loaves of baker’s bread, the labeling of the same to denote inspection, and the prices to be charged therefor. The bread ordinance of the city of Washington has never been modified or repealed by subsequent acts of Congress or of the legislative assembly of the new government, and the question is, Was it repealed by the act of February 21, 1871, because inconsistent therewith?

As the cities of Washington and Georgetown had grown considerably since their original acts of incorporation, and the District generally was increasing in population, public policy suggested a new form of municipal government that would comprehend the entire District, and bring all of its inhabitants under one power of control and regulation for all purposes. Evidently, one of-the main objects of the new legislation was to subject the inhabitants of the entire District to the equal operation and protection of all police regulations, general in their nature, and affecting the interests of all in a like manner. If all such general regulations of the several preceding municipal governments, not expressly repealed by the organic act of February 21, 1878, or by some subsequent authoritative act, are to be held to be still in force, the people would, in some instances, be subjected to two or three conflicting regulations of the same thing, determinable by the particular part of the District in which an act affected thereby may have been done. Another consequence of holding this ordinance to be still in force within the limits of the old city of Washington would be that a baker within those limits would not be able to sell the prohibited loaves of bread to anyone, while one just over the boundary line, but within the limits of the modern city, could sell the same with impunity.

Thus, the effect of the enforcement of the ordinance might be to injure the business of the baker in the old city, or compel him to remove beyond the boundary, without, at the same time, accomplishing the purpose of its enactment. In view of these conditions, we are of the opinion that the ordinance is inconsistent with the act of February 21, 1871, and was therefore repealed by it.

Having been repealed, it could not be revived by the act of February 11, 1895 (28 Stat. at L. 650, chap. 79), adding Georgetown to the city of Washington, and extending all general laws, ordinances, and regulations of the latter territory to the former.

It is unnecessary to consider the other objections that have been made to the validity of the ordinance. For the reasons given, the order quashing the information will be affirmed, with costs. Affirmed.