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District of Columbia v. Mark Grimes

404 F.2d 1337, 131 U.S. App. D.C. 360, 1968 U.S. App. LEXIS 7539
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 28, 1968
Docket21555
StatusPublished
Cited by11 cases

This text of 404 F.2d 1337 (District of Columbia v. Mark Grimes) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
District of Columbia v. Mark Grimes, 404 F.2d 1337, 131 U.S. App. D.C. 360, 1968 U.S. App. LEXIS 7539 (D.C. Cir. 1968).

Opinions

TAMM, Circuit Judge.

Despite our concise holding in District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962) we are again presented herein with the question whether the prosecution of charges of disorderly conduct in violation of D.C.Code § 22-1107 (1967) 1 is within the jurisdiction of the Corporation Counsel or of the United States Attorney. The statute involved is set forth in its entirety in the appendix.

By an information filed in the Criminal Division of the Court of General Sessions, appellee, designated “Defendant in the pleadings before us,” was charged with disorderly conduct in violation of D.C.Code § 22-1107 (1967). In the course of preliminary proceedings in that court, defense counsel challenged the authority of the corporation counsel to prosecute the offense, and the Court of General Sessions, acting pursuant to D.C.Code § 23-102 (1967), (also quoted in the appendix hereto) certified the question to this court. Basically, the thrust of appellee’s position is that since the punishment now provided for violation of the disorderly conduct statute is a fine of “not more than $250 or imprisonment of not more than ninety days, or both,” (emphasis supplied), the prosecu-tive authority is established by D.C.Code § 23-101 (1967) (see appendix) as being exclusively in the United States Attorney. The Corporation Counsel attempts to establish its prosecutive authority by a chronological presentation of the development of the disorderly conduct stat«te from its origin to its present content. stated’ thl+s with Congress enacting m 1892 [a]n act for the preservation of public peace and the protection of property m the District of Columbia.” 27 Stat. 322 (1892). This act, which embraced enumerated acts of disorderly conduct, provided specifically that all prosecutions for violations thereof “shall be conducted in the name of and for the benefit of the District of Columbia * * and provided a fine of $25.00 for violation of any of its criminal provisions. In ensuing years, some changes not pertinent hereto were made in the statute, but in 1953 Congress rewrote various provisions of the 1892 act including a revision of the disorderly conduct provisions to the form in which they now appear in § 22-1107. In addition Congress eliminated the $25.00 fine provided in the 1892 act and substituted therefor $250.00 or imprisonment for not more than ninety days, or both.” (Emphasis supplied.) 67 Stat. 97 (1953). The prosecutive jurisdiction, originating as section 18 of the 1892 act now appears as D.C.Code § 22-109 (1967) (see appendix) and still provides for prosecution “in the name of and for the benefit of the District of Columbia * * *."

The opposing contentions then bring into head-on confrontation the conflicting statutory provisions for “[prosecution] in the name of and for the benefit of the District of Columbia” id est § 22-109, and the restriction upon prosecutive jurisdiction of the District of Columbia acting through its legal office, the Corporation Counsel, by § 23-101, which limits this jurisdiction to cases where the maximum punishment is a “fine only, or imprisonment not exceeding one year.” (Emphasis supplied.)

[1339]*1339We note that historically the Corporation Counsel has conducted the prosecution of the disorderly conduct cases for many years, not only prior to the 1953 amendments of the statute, but subsequently down to the present time. We find no solution to our problem in the District of Columbia’s suggestion that because of its deep antecedents in these prosecutions the status quo should remain undisturbed. We do not believe that the rule of statutory construction that “[l]ong-continued contemporaneous and practiced interpretation of a statute by the executive officers charged with its administration and enforcement, the courts, and the public constitutes an invaluable aid in determining the meaning of a doubtful statute,” 2 Sutherland, Statutory Construction § 5103, p. 512 (Horack’s 3d ed. 1943), is a standard applicable to any situation in which a statutory provision would appear to positively prohibit the challenged conduct.

While it is, of course, true that in our opinion in United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955) we discussed the significance of the distinction between amendment of a statute and an outright repeal of a statute, we do not find that distinction as being dispositive of the present question. We are herein confronted with a statute which contains within its own phraseology no specific identification of the agency which will prosecute the violations therein enumerated. This omission appears to have substantial significance when it is noted that some forty other statutory provisions of the District of Columbia Code which provide for both fine and imprisonment, either contain specific authorization in each situation for the Corporation Counsel to carry on the prosecutions enumerated, or provide that the prosecution shall be carried on “in the name of the District of Columbia.” A listing of some of these D.C. Code sections are made a part of the appendix to this opinion. The conclusion is to us inescapable that had Congress intended to place prosecutive jurisdiction for § 22-1107 violations in the Corporation Counsel, Congress would have specifically so provided. We hold, therefore, that § 23-101, by restricting the Corporation Counsel’s authority to cases in which the punishment is fine or imprisonment, requires that prosecutions for § 22-1107 violations be carried on by the United States Attorney.

We are not unmindful of the additional burden placed upon the United States Attorney by this decision, nor are we ignoring the substantial reduction in the resulting work load of the Corporation Counsel’s Office. Our holdings on this question have been consistent since we decided District of Columbia v. Simpson, supra, in 1913. It would certainly seem that under the impetus of United States v. Strothers, supra, in 1955, District of Columbia v. Moody, supra, in 1962 and Smith v. District of Columbia, supra, in 1967, the Corporation Counsel’s Office would, if it had any serious interest in this recurring problem, have initiated the necessary action in Congress to effectuate a simple revision in the phraseology of § 23-101 which would completely clarify this matter.

The case is remanded to the Court of General Sessions for whatever further action, consistent with this opinion, is necessary.

Remanded.

APPENDIX

D.C.Code § 22-109 (1967), provides:

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District of Columbia v. Mark Grimes
404 F.2d 1337 (D.C. Circuit, 1968)

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Bluebook (online)
404 F.2d 1337, 131 U.S. App. D.C. 360, 1968 U.S. App. LEXIS 7539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/district-of-columbia-v-mark-grimes-cadc-1968.