*1 Lubar, Washington, Nathan M. D. C., petitioner. LA FOREST BOARD OF COMMISSION ERS OF THE OF DISTRICT Seal, West, Vernon E. Elwood COLUMBIA.* Lauderdale, Washington, W. all of James No. 6890. C., respondent. D. Appeals the' United States Court MARTIN, Justice, Before Chief of Columbia. ROBB, GRONER, STEPHENS, As- Argued June sociate Justices. Aug. 9, 1937. Decided
GRONER, J. Petitioner, while driving an automobile public on a thoroughfare City Washington January, 1936, was arrested for unlawfully exceeding speed limit fixed the traffic regulations laws and force in the District of plead- Columbia. He guilty paid ed fine, a small and a few weeks later was notified the Board of Operators’ Revocations and Restorations of Permits that his driver’s been had suspended days. for fifteen appealed He to the District, Commissioners of the who referred the back to the Board for formal hearing. There a hearing, Board adhered to its former ruling. affirmed, Commissioners thereafter petitioner applied review, to this court for a granted, which we confined to the single complained whether the statute embraced—as was claimed—an unconsti- tutional to the Com- missioners of the District of Columbia. In 19251 Congress passed an act regulate vehicular traffic in the District provided of Columbia. The act for the appointment by the Commissioners of a director of who was authorized to perform prescribed the duties in the Act duties, “and such additional not inconsistent * * * therewith, as the commissioners may require.” Section 6(a). The act authorized the director to make reasonable respect with to the equipment, speed, and parking of automobiles,’ the registration of motor and revocation of permits, and such other not in conflict with law of the United States “as are deemed 6(b). advisable.” Section As a condition issuance permit, driver’s required an examination showing that applicant mentally, the physically morally, and qualified, and in pos- addition necessary sessed the injury knowledge to avoid to others the use of an automo- *Writ of certiorari denied 58 82 1 43 —. Stat. 1119. *2 any permits; and exercise provided erators’ 9(c), bile. 43 Stat. Section any imposed on perform duty convict- operator automobile that the of an hereby director of abolished; is fined not office driving ed of should be reckless and in administration of and im- than more than less prisoned nor $25 $100 authority above more the commis- days nor not less ten than may offense,— through sioners such exercise same thirty days than for the first agents of the District as punishment of- officers with for a second severer may Provided, fense, designate: commissioners certifica- and in the latter no Metropolitan That member Police conviction, re- tion of of director Department may empowered perform quired driver’s issued revoke ' any function under this person. than provided other to such the enforcement any causing an thereof." driver an automobile of stop failing accident and operating 9(a), as amended section an automobile while intoxicated or under 46 II, 1935, Stat. Supp. D.C.Code T. drug the influence of a narcotic upon should 6, 246(a): § permit. conviction forfeit his “No shall operated vehicle at a provided-: of further the act greater speed permitted by rate than may “The director his discretion regulations adopted authority under the (except any where for violation chapter.” this Act of this operator’s permit revocation of the man- as amended datory) suspend operator’s revoke or II, 1935, Stat. Supp. D.C.Code T. any individual convicted aof 6, 250(a): § any provisions violation Act, of this “Except any where for violation of this upon hearing or after notice and for [chapter] operator’s revocation of the any regulation tlie violation made under mandatory, commissioners this Act.” agent designated may with or with- section—13(a)—was ded prior suspend hearing out an a amen 812, 814, Stat. T. D.C.Code operator’s permit for cause authorizing director or their deem sufficient.” prior hearing “with or without a re [to] goes section then on declare operator’s permit for an
voke that in each such for case the reason' ** * any sufficient,” may he cause which deem suspension revocation or shall be set out right with the but order; in the five shall take effect and with further the Commissioners days after notice unless holder—in judge of for apply court right to this agent is made case the review. written make the Commissioners—shall re- application -to the Commissioners for comprehensive traffic In 19312 more right view, person af- and with the passed by Congress. It contained thirty days after the decision fected within provisions of the act au former all the apply judge to a of the of this rules thorizing making reasonable review; providing court provision for the manda regulations; and tory of this review shall the order court on discretionary revocation as well as be final. provision for permits; suspension of title; certification of registration; that the act in Petitioner insists and boulevard of arterial legislative establishment valid because it vests lights; etc. administrative highways; discretion in unregulated (D.C.Code section 4 position 6(a), as amended think the is not We officers. 6, 243(a), the new II, Supp. sustainable. as follows: act is of Columbia a munici- form in one another has pality, and District of “The Commissioners large degree self-govern- exercised em- hereby authorized and Columbia supreme beginning. from Its ment modify, make, repeal, and en- powered body Congress, legislative usual force repeatedly lodged has early times sub- vehicles, and rules relating to powers in the munici- ordinate concerning control 195) Congress in- pality. motor registration traffic, the mayor and common council vested a op- revocation 46 Stat. Columbia, 557; District of of 289 F. Croson v. city all the usual 924; App.D.C. F.(2d) White Bodies, power to municipal including 197, 4 Columbia, App.D.C. powers of District of by-laws pass ordinances 163;. F.(2d) District of Colum administration, Carranzo regulation, taxation. *3 983; bia, F.(2d) App.D.C. 118, 10 56 Legislature was (16 419) In 1871 a Stat. App. Columbia, 57 attributes, Smallwood v. District established, not in of all the 58, F.(2d) D.C. 17 laws 210. the consistent with Constitution govern of the United of distinct a While, therefore, mindful of the a a governor was also There ment. board of principle dele Legislature the that public gov form works. This of can, law, gate power its to a make 1874 Stat. ernment continued until Field in was said the 116), superseded by when was a Com 694, 495, Clark, v. 143 12 S.Ct. U.S. persons ap consisting mission three of delegate 36 law L.Ed. make a to exercise, pointed by ex the President to of fact to determine some or state act, cept the limited the intends things upon which law makes or the gov in vested the theretofore depend. think to make its own action We public works. ernor board of present the within latter act is well this history of governmental This Dis principle. in interestingly detail in traced trict say Nor do correct to we think it Metropolitan opinion in Railroad v. Co. wholly limitation, the act is so without Columbia, 132 10 District U.S. restriction, or definition to authorize very 33 231. nature of the revocation a driver’s things Congress anticipate could not and caprice. act, purpose the con- legislate in relation innumerable imposes, provisions, which it ditions and regulations regulations changes in nec wholly its context exclude idea essary accomplish safety of life and limb to granted to the Commission- highways on the in the District Colum arbitrarily ers can be exercised. Section 368), back as bia. far 1887 empowers Commission- comparatively problem when the was to make and to enforce “usual and ers simple, Congress conferred the Com regulations reasonable” traffic rules and respect. power in this When missioners regulations make to like rules and right raised then as to regard in to the issuance and revocation to Commissioners make enforce operators’ permits. proper This authorization, under that this precise language must be read into upheld court to and considered as the basis foundation delegate to the Commissioners to suspend on revoke or to police regulations purely make local grounded. a license is So read and con- nature. Baltimore & Railroad Co. v. Ohio sidered, 13(a) permits revocation Columbia, App.D.C. District of 10 suspension only in where there many time arisen Since cases have a breach of the usual rea- shown be to promulgated by concerning regulations regulations made concerning sonable pursuant Commissioners authorization traffic. The act as a control of whole is Congress, and has this court never harmonious clear. validity type questioned the complained delegation, correctly of. when here See U. S. under 241; Ross, stood, App.D.C. right proper rel. Kerr 5 confined to the ex v. take protection safeguards Baltimore Railroad Co. v. District of life & Ohio Columbia, supra; through reasonable rules regulating Callan v. limb District 271; District, Columbia, App.D.C. Taylor 16 v. right 392; Columbia, App.D.C. 24 District of limited Columbia, App. 24 in there those cases has Barnes v. been a holder, 458; Coughlin breach, by of these D.C. v. District Colum reasonable bia, 251; aspect, ex App.D.C. 25 U. S. rel. Considered this it cannot rules. Ashford, 350; App.D.C. urged Congress may properly v. not Smithson Columbia, App. delegate District of discretion Collins v. 212; Tyrrell, carrying legisla v. out D.C. District of Columbia 463; Edmonston, expressed App.D.C. the act. Siddons tive intent Here 459; App.D.C. considering any charge Smithson v. District of not we are 184; App.D.C. adopted have Crane v. the Commissioners unrea Colombia, Columbia, App.D.C. 159, District of sonable capricious- a revocation sought arbitrarily construed to to act permits only ly, right but if such a arise case should protection cases where is shown be a of review this court insures breach of against regula- the usual and reasonable. such abuse of concerning tions made are, therefore, opinion We by reading this construction be reached suspending action of the Commissioners in language into of Sec- petitioner’s permit not based II, Supp. tion D.C.Code illegally delegated power, and there is 243(a), empowering Commissioners: nothing Smith, in Thompson Va. make, modify, repeal, “. S.E. 71 A.L.R. or in Refining Ryan, Panama enforce usual and reasonable traffic rules Co. v. U.S. *4 388, 241, 446, relating 55 and S.Ct. 79 L.Ed. Schech- Poultry regulations concerning States, ter Co. rules con- v. United 295 U.S. 495, 837, 1570, 55 trol registration S.Ct. of motor 79 L.Ed. 97 A.L.R. 947, vehicles, and which in and revocation question. view our affects operators’ Virginia permits; The case ...” involved a statute mani- festly different from that we deal majority opinion The takes a dis also with, but even if this not true were we tinction in Refining Panama Co. persuaded should not be anything in the Ryan, 388, 241, 293 v. 55 79 U.S. S.Ct. opinion change question our view. The Poultry 446, Cor L.Ed. and Schechter is one as to which each decide state must States, 495, poration v. 295 United U.S. The Panama and Schechter itself.. 947, 1570, 837, 97 A.L.R. 55 S.Ct. 79 L.Ed. involved wholly controversy Cases as to cites, as basis for con a further its the distribution between the clusion, jurisdiction cases from this re President and Congress or between Con- ferred to below. gress and administrative officers com- its facts Field Clark decides noth- On v. missions, controversy affecting the struc- —a think, pertinent I instant ing, to the situa- government. the national ture of Here validly Congress may tion. It holds that purely Congress is local. as provide of an express District of Columbia has Congress contingency ascer- to be legislation exclusive exercise President, made known tained possessing whatsoever, thus all proclamation. is so characterized It his general and a state combined Ryan, Refining in Panama Co. v. 293 U.S. legislation in all cases where government 424, 241, 388, 79 L.Ed. 55 S.Ct. delegate it shall possible. and how When is light Field v. decided But Clark is make detailed or distribute of, recognizes, and it constitutional police regulations under instant principle involved may determine Congress questions which constitutionally wit, Congress Dairy, Highland Farms Cf. itself. delegate‘legislative 608, 549, Agnew, 300 S.Ct. U.S. Inc. unquestionable it I think 835, decided 81 L.Ed. is an unconsti- 13(a) of the Traffic 29, 1937. March tional Appeal dismissed. susceptible it unless is put upon in the construction it STEPHENS, Associate Justice. Indeed, I opinion. understand majority majority opinion, I I dissent. is no contention that the serious Clark, it, upon Field v. rested read valid, to be unless so con- it section 294, 495, L.Ed. S.Ct. U.S. fully in mind I bear rule strued. proposition 13(a) that Section reasonably questioned provision is if (D.C.Code Supp. II, Traffic Act constructions, susceptible of two one providing that: sustaining it and will which “Except require where for violation held of this of which will it other invalid, operator’s permit revocation of the construction which will mandatory, put upon sustaining the commissioners must be their it it. But designated requires own terms without a that rule hearing op something prior statute to con- any cause is clear the If statute erator’s strue. courts are accept written. I am agent may deem sufficient bound to unable their ambiguous in anything find . . " . Act, say I nothing upon topic in Sections of due 13(a) of the Traffic process re- 6(a) 13(a) together, has been of law because this taken quires any delegation question words of limited to the alone. construction of the 13(a). IAs read Section distinguishes majority opinion it deals with the the Commission- Refining Co. Ryan, Panama U.S. make, modify, enforce repeal ers to traffic 55 S.Ct. Poultry Schechter 79 L.Ed. regulations, including those Corporation v. United concerning the issuance and revocation U.S. operators’ permits. noth- lacks they: 947, upon ground A.L.R. ing which be read to must wholly “. . a contro- power . involved deals, supply. I read versy be- to the distribution of clearly, entirely and deals differ- with an tween the or be- President subject, ent and is itself. unto sufficient Congress and officers tween administrative n It deals with the revocation of commissions, affecting controversy —a permits, provides simply except government. the structure of the national where, Act, under the revocation is manda- question purely Here the local. .” tory, the Commissioners, agent, Refining Ryan, Panama supra, Co. v. may, with or prior without a re- hearing, *5 Supreme held, the Court as I the read any voke which “for cause case, attempted the delegation of they their deem suffi- power under 9(c) of the National apparent I cient.” think it that the Con- Recovery Industrial Act (15 U.S.C.A. § gress armed the Commissioners in Section 709(c) power interdict the trans — the 6(a) with to make and enforce portation foreign in com interstate operators’ virtue by petroleum produced merce or withdrawn permits might be revoked the usual storage per in excess amounts grounds pertinent by mitted state void be —was and, 13(a) in Section power sought delegated cause the to be invested the Commissionerswith a different power, legislative and nowhere in the and much authority. broader I am If cor- Congress any policy had declared statute rect foregoing in the only it not un- guide or limit the standard to Presi or dent when necessary to construe but acting delegation. under such improper, because construe it to re- Poultry Corporation United In Schechter accept fuse Congress the intention the held, I Supreme supra, Court clearly expressed. think, therefore, I code-making au read properly be read thority sought to be conferred the Na 13(a). into Recovery (48 Industrial tional included, Congress In Section delegation unconstitutional 195) was an my opinion, proper in standard because gave legislative because the words used in therein their common President, approving prescribing in meaning connote that the made codes, enacting laws thus patterned public safety shall industry, a vir government trade in convenience streets. This I discretion, being tually there unfettered sufficiently think is a 1 nor in Section of neither in concept definite to validate the statute. 701, 705), in U.S.C.A. §§ think, But the words of Section I Court, a sufficient declaration view of of a nor neither" connote standard ex- state Neither legislative standard. of the cept personal judgment of the Com- distinction, appears to me take agent. They given missioners are else no distinction taken and I know of authority. plain delega- is a unlimited This Court, Supreme which war where argument legislative in legislative authority tion delegation of rants behalf agent local, is a merely because the 11,000 than national, more revocations been officer. from a distinguished permits under suspensions the decisions I understand only ap- just including five referred Court, the two court, filed to, in this for review plications argument has not whoever the an forbidden the Constitution is been past and, therefore, agent may Congress itself abused be. The must likely complete, pass abused in pass will not the statute future. either leaving not cure the defect in the stat- statute in essentials That does details, agent fill or the ute. some policy must declare R. Whitehead, F. Solicitor, United standard. States Office, Patent appellee. The cases decided this court which Before MARTIN, Justice, Chief are relied on in majority opinion, as ROBB, ORSDEL, GRONER, VAN I read them, deal scope with the' STEPHENS, Associate Justices. granted the Commissioners, not with the constitutional validity of the grant- statutes STEPHENS, ing Associate powers. Justice. appellant sought, under the Trade- Mark Act of Stat. 725 [15 85]), U.S.C.A. register the word “Morocco” as a trade-mark for a class paints and pertinent por varnishes. The tion of proviso the Act is a that: “ (cid:127) . .no mark which consists
KAY & ESS CO. v. COE,
Commissioner
(cid:127)
.
merely
.
.
in words
.
.
. which
*
Patents.
descriptive
are
goods
with which
No. 6804.
used,
or of
quality
the character or
United States
goods,
such
registered
shall be
Appeals
District of Columbia.
«
(cid:127)
(cid:127)
Aug. 9,
Decided
appellant
application
usual
course
the United
Patent
States
application
Office. The
was refused
Examiner, upon
ground
*6
merely
descriptive
word “Morocco” is
designation
goods. This
refusal
was, upon
ground,
the same
confirmed
by the Assistant Commissioner of Patents.
appellant
filed,
equity
then
a bill in
in the District Court of the United States
for the District of Columbia under Rev.
amended,
(as
35 U.S.C.A.
63), praying
adjudged
it be
entitled
registration.
receive
a certificate
After
the merits on issues of
a trial
fact
by an answer
filed
raised
Patents,
appellee
the trial
Commissioner of
court ruled- that
the word “Morocco” is
appel
not registerable and dismissed the
lant’s
findings
bill. The trial court made
of fact as follows:
application' of
the Plaintiff
“1. The
reg-
proceeding is for the
involved in this
Trade-Mark Act of
istration under the
a, trade-mark
‘Morocco’ as
of the term
lacquer
finish.
applied
when
to an
“2. Plaintiff’s finish
appearance indicating a
gives
article
leather.
simulation of Morocco
exten-
Morocco had been
The word
“3.
by Plaintiff in connection
sively used
its product.”
following con-
The trial court
clusions of law:
M. Mason,
John
used
Plain-
Morocco as
C.,
term
"Washington,
D.
“1.
and H. A. Toulmin and
upon which
goods
H.
descriptive
A.
Toulmin,
tiff is
Jr., both of Dayton, Ohio, for appellant.
it is used.
*Writ of certiorari
denied