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HOBSON v. TOBRINER

May 4, 1966

Julius W. HOBSON, Patricia S. Rosemond, Samuel D. Graham, Grover C. Dye, and William L. Higgs, Plaintiffs,
v.
Walter N. TOBRINER, John B. Duncan, and Brig. Gen. Charles M. Duke, all Commissioners of the District of Columbia, Board of Commissioners of the District of Columbia, the Board of Elections of the District of Columbia, Charles H. Mayer (Chairman), Ernest Schein and Dr. Robert Earl Martin, Members of the Board of Elections of the District of Columbia, and Lyndon B. Johnson, President of the United States, Defendants



The opinion of the court was delivered by: GASCH

 This case came before the Court on application for a three-judge court pursuant to 28 U.S.C. § 2282 and 28 U.S.C. § 2284. The complaint states that the plaintiffs are adult citizens and taxpayers of the United States and of the District of Columbia; three of the five plaintiffs represent that they are Negroes. The complaint further states that it is a class action brought to enjoin the enforcement of §§ 1-201 and 1-202 of the District of Columbia Code. These sections provide for the Presidential appointment of three Commissioners of the District of Columbia, one of whom must be an officer in the Corps of Engineers of the U.S. Army.

 In this action, plaintiffs name as defendants the current Commissioners of the District of Columbia, the Board of Elections of the District of Columbia, the individual members thereof, and Lyndon B. Johnson, President of the United States. According to the complaint, plaintiffs allege that §§ 1-201 and 1-202 of the District of Columbia Code are unconstitutional and violate the Fifth, Ninth, Tenth, Fifteenth, and Nineteenth Amendments. In addition to their prayer for a three-judge court, plaintiffs seek: to enjoin any action by the defendants pursuant to the alleged unconstitutional provisions; an ordering of at large elections; a declaration that the above-mentioned sections of the D.C. Code are unconstitutional; and a designation of an interim Board of Commissioners for the District of Columbia until elections can be held.

 As stated previously, the issue before the Court at this time relates solely to the convening of a three-judge court pursuant to a prayer in the complaint. An application for a three-judge court assumes that jurisdiction exists over the controversy, and if the Court concludes that there is an absence of jurisdiction, it possesses the power not only to deny the application, but also to dismiss the complaint. Lion Manufacturing Corp. v. Kennedy, 117 U.S.App.D.C. 367, 330 F.2d 833 (1964); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611, cert. denied 364 U.S. 891, 81 S. Ct. 222, 5 L. Ed. 2d 187 (1960).

 A three-judge court is not required or authorized when the claim that a statute is unconstitutional is wholly insubstantial. Ex Parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 122 (1964). Note, 77 Harv.L.Rev. 299, 307 (1963). Therefore, at this stage of the pleadings it is incumbent upon the Court to examine the claim of nonconstitutionality and determine whether such claim is insubstantial. *fn1"

 Article I, Section 8, Clause 17 of the Constitution provides:

 
"Congress shall have 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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings; * * *."

 This provision of the Constitution was effectuated in 1788 and 1789 when Maryland and Virginia ceded territory to the Federal Government, and Congress, by acts which were approved on July 16, 1790, and March 3, 1791, established the District of Columbia. After the elections of 1800, the District of Columbia was proclaimed to be the national capital. On the first Monday of December, 1800, jurisdiction over the District was vested in the United States. United States v. Hammond, Fed.Cas.No.15,293 (1801). As to the effect upon the citizens of this vesting, Chief Justice Marshall stated:

 
"By the separation of the District of Columbia from the state of Maryland, complainant ceased to be a citizen of that state, his residence being in the city of Washington, at the time of that separation. " *fn2"

 In short, the effect of cession upon individuals was to terminate their state citizenship and the jurisdiction of the state governments over them. In a very early case, Chief Justice Marshall ruled that the District of Columbia was not a state within the meaning of the diversity-of-citizenship clause of Article III. *fn3" However, Congress has empowered the courts of the District of Columbia to take jurisdiction over non-Federal controversies between residents of the District and citizens of a state. *fn4" Although the District of Columbia is not regarded as a state for many purposes, it is clear that it is a part of the United States so as to afford the residents certain rights and privileges, such as trial by jury, *fn5" presentment by grand jury, *fn6" and the protections of due process of law. *fn7" Suffrage, which is the objective of the present complaint, has been denied the citizens of the District, except for the short-lived Legislative Assembly which existed between 1871 and 1874. *fn8" Prior to 1871 there was a more limited mayor and city council form of government. Recently, the Twenty-third Amendment has given citizens of the District the right to vote in Presidential elections.

 It has been often stated that Congress possesses over the District of Columbia the dual power of a local and national legislature. *fn9" Fundamental to an understanding of this problem is the statement of the Supreme Court in O'Donoghue v. United States:

 
"In the District clause, unlike the territorial clause, there is no mere linking of the legislative processes to the disposal and regulation of the public domain - the landed estates of the sovereign - within which transitory governments to tide over the periods of pupilage may be constituted, but an unqualified grant of permanent legislative power over a selected area set apart for the enduring purposes of the general government, to which the administration of purely local affairs is obviously subordinate and incidental." *fn10"

 The character of the District of Columbia was described by Judge Taft (later Chief Justice) as follows:

 
"It was meet that so powerful a sovereignty should have a local habitation the character of which it might absolutely control, and the government of which it should not share with the states in whose territory it exercised but a limited sovereignty, supreme, it is true, in cases where it could be exercised at all, but much restricted in the field of its operation. The object of the grant of exclusive legislation over the district was, therefore, national in the highest sense, and the city organized under the grant ...

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