the retail marketing segment of the industry, and to assure the adequacy and availability of motor fuel supplies and motor vehicle maintenance and repair services, pending further study of the trend to reduce the number of retail service stations.

The Mayor further indicated that while joining the Council in supporting this legislation, he was aware of possible legal deficiencies in provisions that trial courts in Maryland and Florida had declared unconstitutional. But he stated he would prefer to let the courts find. that provisions of the law are unconstitutional rather than put further obstacles in the path of the city's efforts to provide a solution and some relief.

The Mayor also indicated in his letter that he hoped the 95th Congress would move quickly to address these problems on a National basis.

Accordingly, Mr. Chairman, the Mayor let the legislation become law fully aware of the legislative judgment that had been made by the City Council about competition and consumer services, and fully aware of the possibility of legal challenge and enactment of Federal legislation.

Respectfully, it is the Mayor's position that the District Government has properly exercised the authority delegated to it by the D.C. Self-Government and Governmental Reorganization Act, and that in the absence of a national concern to the contrary, the Congress should decline to exercise its authority to disapprove acts of the District Government in what appears to be a local matter. In our view the constitutional arguments belong before the courts, not this Committee. Thank you, Mr. Chairman.

Mr. HARRIS. Thank you. I appreciate your statement.

If I may, I am not clear on why the Mayor did not sign the ordinance?

MAYOR'S POSITION

Ms. ROGERS. Under the Home Rule Act, Mr. Chairman, as you are aware, there is a provision that gives the Mayor the authority not to take any action within a ten-day period he has to act on any bill which the Council has passed. The Mayor, taking that option, in effect, lets the law become effective without his signature.

As I think the distinguished member from Maryland indicated, there was a view expressed, both by the General Counsel to the City Council, and the Office of the Corporation Counsel, that there were some legal deficiencies in the bill, at least based on the evidence that we had from two other trial court decisions.

Accordingly, rather than sign the bill, in view of these deficiencies, the Mayor took the other option that was open to him under the Home Rule Act. And, again, as Mr. Steers indicated, the Maryland Court of Appeals' decision came down after the Mayor acted on January 14. Mr. HARRIS. Thank you.

Before yielding to my distinguished colleague from the District of Columbia, I wanted to recognize the D.C. General Counsel, Mr. Edward B. Webb, Jr.

Mr. Webb, do you have something that you would like to add at this point?

Mr. WEBB. Thank you, Mr. Chairman, but I do not. I will respond to any questions you might wish to propose.

Mr. HARRIS. Thank you.

The Chair is pleased to yield to my distinguished colleague from the District of Columbia, Mr. Fauntroy.

Mr. FAUNTROY. Thank you, Mr. Chairman, and members of the Committee.

I regret, first of all, for being late arriving at the hearing. As my colleague, Mr. McKinney, knows, we have had a very hectic day in a number of different forums on the Hill.

Quite frankly, I do have a prepared statement, Mr. Chairman, in opposition to this resolution, which I would like to give at the appropriate time. I would just as soon complete our questioning of Councilman Moore and the panel here before doing that.

Mr. HARRIS. Good. The Chair will defer to my colleague's pleasure. Does my colleague have any questions of the panel?

Mr. FAUNTROY. I do have one question of Councilman Moore, and it is a real pleasure to have Councilman Moore before us.

COUNCIL ACT 1-220

I wonder if you can tell us if there is any evidence that the moratorium on the conversion of full service stations to self-service stations, or the divestiture provisions of Title I would in any way adversely affect the consumers. I guess, in short, will the gas prices go up?

Mr. MOORE. Mr. Fauntroy, the situation, as I view it, would be this: The bill would simply limit the number of gas and those stations in the District of Columbia. As you know, the consumer would still have a choice as to whether he wished to go to a gas-and-go station, orwhether he wishes to go to a full service station, or a station with selfservice and of the full service range of services rendered. It does not take away that option from the consumer. It by no means says that there shall not be any gas-and-go stations in the District of Columbia, but rather it limits the number that would be in the District of Columbia.

Mr. FAUNTROY. Thank you, Mr. Chairman.

Mr. HARRIS. The gentleman from Connecticut.

Mr. MCKINNEY. Councilman Moore, it is nice to see you.

This bill is basically just a moratorium from conversion, is it not, in reality? It simply says that you cannot convert full service over to stop-and-go, or go-and-stop, or whatever you want to call it, until that time?

Mr. MOORE. Yes, sir.

Mr. MCKINNEY. So that this would not make any stations now that were self-service stations convert over, would it?

Mr. MOORE. It would not.

Mr. MCKINNEY. I appreciate what the gentleman is up against. As I said, we had a problem in Connecticut when I used to be in business. Now, would you not also agree with the Congressman from Connecticut that if there is a problem in the City Council's legislation, that that is what we have our courts for?

Mr. MOORE. I agree, sir.

Mr. MCKINNEY. Thank you.

Mr. HARRIS. The gentleman for Maryland.
Mr. STEERS. No.

Mr. HARRIS. I would like to thank all of you for your statements. They were very helpful, and I hope you will be available in case some additional questions are propounded which we might submit to you in writing. Would that be all right?

Mr. MOORE. Thank you, Mr. Chairman, and we will make ourselves available.

Mr. HARRIS. Thank you very much.

Mr. MOORE. Thank you kindly.

Mr. HARRIS. The Chair would now call Mr. Harry Wainwright, Vice President of Retail Sales, Petroleum Marketing Corp.

Pardon me. As Mr. Wainwright is coming up, I would like to recognize the distinguished Congressman from the District of Columbia, Mr. Fauntroy.

STATEMENT OF DELEGATE WALTER E. FAUNTROY

Mr. FAUNTROY. Thank you, Mr. Chairman. I appreciate this opportunity to speak in opposition of H. Con. Res. 144, the resolution for disapproval of the Retail Service Station Act passed by the City Council.

Our system of Government is held together and made solid by a delicate separation of functions among three distinct entities. The function of the legislative branch, of course, is to make laws, and it is solely the function of the judicial branch to interpret the laws. It is due to our well established and proven governmental design that I consider it improper for this Subcommittee, an element of the lawmaking branch, to sit in judgment on the constitutional soundness of an Act passed by the D.C. City Council. I think that is the role of the

courts.

My opposition to this resolution, however, goes far beyond my concern simply for the integrity of our system, and that it be maintained. In December of 1973, after long and careful deliberation, we came out of the Dark Ages and relinquished to the people of the District of Columbia the right to elect their own local government officials, and we vested in those officials the power and the responsibility to make and execute the law which would govern the people of Washington, D.C. While we retained in the Congress the power to veto acts of the local legislature, it was clearly understood and agreed that our veto authority would be used sparingly, if at all, and simply only to protect the Federal interest.

When I look at this bill, I think it is probably more in the Federal interest that the millions of citizens across the Nation who may come here, sometimes driving at great distances to be here, should not be confronted with self-service stations, where they cannot get their oil changed, their tires checked or changed.

So, if anything, the Council has acted in the best interest of the citizens of the Nation. And on that point alone I think we would have to sustain the actions of our locally elected Government.

Indeed, since the elected Government took office in January 1975, they have passed some 100 laws. We have responded with only five resolutions for disapproval. Two at the Subcommittee level, and three at the full Committee level. None of the disapproval resolutions have been reported to the House.

Thus, the prevailing attitude here continues to be one of nonintervention in purely local affairs, and rightly so. To pass this resolution, I think, would violate the letter and spirit of the Home Rule Act. It would mean a step back towards the Dark Ages, and I do not believe any of us here would favor such retrogression.

Mr. Chairman, I wish to underscore my first point in pointing out that while I have the utmost respect for members of the legal profession-I do not want you to think that I have any disrespect for the lawyers in this Congress but it is commonly known that lawyers seldom agree on questions of law. It is sometimes said that if you put 10 lawyers in a room, you will get 25 different opinions.

Mr. HARRIS. Do you want my comment?

Mr. FAUNTROY. I will be happy to yield to the distinguished Chairman if he is not a lawyer.

Mr. HARRIS. The distinguished Chairman is a lawyer, and wants to know if ministers ever disagree on theology.

(Laughter.)

Mr. FAUNTROY. No comment.

(Laughter.)

Mr. FAUNTROY. But I am reminded, Mr. Chairman, of Congressman Paul's admonition to the 94th Congress, that the Firearms Control Regulation, passed by the D.C. Council, was unconstitutional. Congressman Paul at that time was armed with an opinion from the lawyers of the Congressional Research Service which supported his position, and yet just a few weeks ago the court upheld the validity of that Act.

I would like at this point to insert into the record the decision by Judge Newman on that particular Act, which a member of the last Congress assured us was unconstitutional.

Mr. HARRIS. Without objection, it will go into the record at this point.

[The opinion referred to follows:]

District of Columbia Court of Appeals

11261-76-January Term, 1977

WALTER E. WASHINGTON, ET AL., APPELLANTS,

บ.

MARION R. MCINTOSH, ET AL., APPELLEES.

Before: Newman, Chief Judge, and Kelly and Yeagley, Associate Judges.

ORDER

This cause came on to be heard on the motion of appellants for a stay of the order of the trial court on appeal herein and the responsive pleadings filed with respect thereto.

The general doctrine of appellate review on appeal of the grant of a preliminary injunction is whether there was an abuse of discretion by the trial judge or whether the trial judge was clearly wrong in granting the injunction.1 There is a sub-doctrine, however, that permits an appellate court to reach the merits of the preliminary injunction when it is based on an erroneous legal premise. Northeast Construction Co. v. Romney, 485 F. 2d 752 (D.C. Cir. 1973); Delaware & Hudson

1 Delaware & Hudson Ry. Co. v. United Transportation Union, 146 U.S. App. D.C. 143, 450 F.2d 603, cert. denied, 403 U.S. 911 (1971); Dalmo Sales Co. v. Tyson's Corner Regional Shopping Center, 139 U.S. App. D.C. 22,, 429 F.2d 206 (1970).

Ry. Co. v. United Transportation Union, 146 U.S. App. D.C. 142, 450 F. 2d 603, cert. denied, 403 U.S. 911 (1971).

The underlying premise of the trial court's order here is that the City Council was without any power (because of the limitation in the District of Columbia Self Government Act § 602(a)(9), codified § 1-147 (a) (9)) to promulgate the new Firearms Act. Under authority of Maryland and D.C. Rifle & Pistol Association v. Washington, 142 U.S. App. D.C. 375, 442 F. 2d 123 (1971), we hold that the premise is clearly wrong. We do not, however, intimate any view about whether particular provisions of the new Act might be invalid because they conflict with Title 22 or violate some constitutional provision. See Pistol Ass'n, supra at 3770.9. Nor do we intimate any view about whether those conflicting provisions, if any, might be severable.

The preliminary injunction is stayed pending resolution on the merits by the trial court. The 14 days' period for re-registration under the new Act (December 17 to December 31) that remained when the injunction issued is reinstated effective 9:00 A.M., Monday, February 7.2

Per Curiam:

Mr. FAUNTROY. I am further persuaded by the fact that the appellate court in Maryland, as Mr. Moore has pointed out, has upheld the validity of the Maryland law, which is essentially the same as the one being called in question today.

It simply violates the doctrine of separation of powers for a legislative body to attempt to interpret the law, and that kind of activity, I submit, is dangerous, and should not be permitted by this Subcommittee, and while I am prepared to listen, I would hope that the Committee is prepared not to act favorably upon this resolution, which would violate the separation of power, which is so dear to our system.

Mr. HARRIS. Thank you very much, Mr. Fauntroy.

I recognize Mr. Harry Wainwright, Vice President of Retail Sales, Petroleum Marketing Corp., which I understand is Scot.

STATEMENT OF MR. R. WAINWRIGHT III, VICE PRESIDENT, RETAIL SALES, PETROLEUM MARKETING CORP., ACCOMPANIED BY LENNOX COOPER, ATTORNEY, AND ROBERT KELVEY, VICE PRESIDENT OF REAL ESTATE OPERATIONS

Mr. WAINWRIGHT. Mr. Chairman, members of the Committee, along with me today is Mr. Lennox Cooper, our attorney, and Mr. Robert Kelvey, on my left, who is our Vice President of Real Estate Operations.

Mr. HARRIS. Thank you. You may proceed, Mr. Wainwright.
Mr. WAINWRIGHT. All right. Thank you, sir.

Mr. Chairman, and members of the Committee, my name is Harry R. Wainwright, III. I am Vice President, Retail Sales of the Petroleum Marketing Corp. I appreciate the opportunity to appear today in these hearings on The Retail Service Station Act of 1976, passed by the Council of the District of Columbia on December 7, 1976, transmitted to the Congress on January 28, 1977, and questioned in the resolution of disapproval introduced in the House of Representatives by the Honorable Bill Archer on March 9, 1977.

If desired, the City Counsel could, by appropriate legislation, extend the re-registration period.