John R. Thompson Co., Inc. v. District of Columbia.district of Columbia v. John R. Thompson Co., Inc, 214 F.2d 210 (D.C. Cir. 1954)

When these cases were previously before us,¹  a majority of the court found it unnecessary to decide whether or not the 1873 Act of the Legislative Assembly repealed the pertinent provisions of the Act of 1872, though the matter was briefed and submitted. The minority opinion, in expressing the view that the provisions of the 1873 Act are valid, unrepealed and in effect, stated also that since they are in substitution for the provisions of 1872 the latter, with regard to restaurants, are repealed. 92 U.S.App.D.C. at page 53, 203 F.2d at page 598. Reference was made to the opinion of Judge Clagett in the Municipal Court of Appeals for a fuller discussion.²  The Supreme Court in upholding the 1873 Act and in reversing our earlier decision with respect to all counts of the information left open on remand to this court the question whether repeal of the 1872 Act had occurred. District of Columbia v. John R. Thompson Co., 346 U.S. 100, 118, 73 S. Ct. 1007, 97 L. Ed. 1480.

We now hold that, with respect to restaurants, the 1873 Act repealed that of 1872 upon which the first count of the information is based. For this reason the judgment of the Municipal Court of Appeals for the District of Columbia sustaining the quashing of the first count of the information is affirmed. With respect to counts two, three, and four of the information, which are based on the 1873 Act, the decision of the Supreme Court requires that our judgment of January 22, 1953, be vacated and a new judgment be entered affirming also as to those counts the judgment of the Municipal Court of Appeals.

It is so ordered.

Circuit Judge WILBUR K. MILLER did not participate in this decision.

Circuit Judge PROCTOR died September 17, 1953, prior to consideration of the present decision. Circuit Judge DANAHER, who took his seat upon the court November 20, 1953, has not participated in the consideration or decision of these cases.