Daily American organ. [volume] (Washington, D.C.) 1854-1856, 1856-09-19


session" with reference TO daily sitting Of the cham
Der? cannot bring myself TO think 80.
How, then are we to interpret these provisions Of
the charter? In my opinion, they contemplated an
entirely different arrangement from that which now
obtains with regard 10 the meetings Of the two Boards
Such, likewise was evidently the understanding OF
the Councils prior TO the ordinance Of October 20,
1892 by which the weekly sessions prescribed.
A brief review of the provisions of the several
charters, in their chronological order, may throw
light upon this and the other matters now under con-
sideration.
BY the original charter of 1902 the Mayor was the
absolute appointee of the President Of the United
States and all the officers of the Corporation were
appointed by the Mayor alone. Twelve councillors
were annually elected by the people, and of these
"second chamber" consisting of five members was
constituted, by election held by the whole body OF
twelve among themselves. The two chambers were
TO hold their sessions annually on the second Mon
day in june with power to adjourn from day to day.
But the Mayor might convene them oftener if the pub
lie good should require their deliberations.
Here the word session" ID manifestly used with
reference to the annual meeting which was TO be
continued by adjournment from day to day, so long
as there was business 10 be transacted. When called
together by the Mayor in extra sessions the like or
der OF proceedings doubtless contemplated, VIZ
continuous session, interrupted only by adjourn
ments.
BY the charter of 1904 the two Boards were made
separately elective by the people, but no change was
made with regard to the appointment Of officers or
the sessions ofthe Councils Both Boards continued
to be elected for one year only.
By the charter of 1912 the two Boards, of Alder
men and Common Council, were first created by
those names; and the former was placed upon diff
ferent footing from the latter in being elective for
two years. &C. and becoming connected with the sub
ject of offices.
BY the first section it was provided that each
Board shall meet at the Council Chamber, for the
dispatch of business on the second Monday in June
nj O'clock
day and at the same hour annually thereafter with
power to adjourn from day to day, &c, and with
power to the Mayor to call extraordinary sessions.
Here it was evidently intended that there should
be one continuous session, held annually with adj
ournments, and extra called sessions necessary.
1t is in my opinion, in contemplation of this state
of things that tn elanguage in relation to appoint
ments In the "receSs and the duration of such APP
pointments, "atnGl the end Of the a&H ensuing ses-
sion" was used: " lie shall appoint proper persons
to fill up all vacancies dring tie recess of the Board
of Aldermen, to hold such. appointments until the
end of the then ensuing session"
In the charter of 1920 (still in force except far
as repealed by that of 1848) slight variation of Ian
guage may be observed: "He shall appoint persons
to fiji up vacancies which mag occur during the
cess to hold such appointments until the end of the
then ensuing session." The words "may occur" do
not vary the sense, however, as we have seen that
such appointee holds during the whole session; and
thus the Office is not vacant at any time until the
recess has commenced so that strictly the vacancy
opinions of Chief Justice fancy and Mr.. Legare
upon cases submitted to them respectively while in
the office of Attorney General.
In the same same charter of 1920 clause APP
pears touching the sessions of the Boards After
following the language of the previous charter as to
the June session in every year, 1t is added "and at
such other times as the two Boards may by law
direct"
By referring to Burchs Digest p 1867 you will see
how the law stood at the passage Of the act of 1882
There were -four sessions in each year. in addition to
the meeting on the second Monday in June, by law
directed the first session to commence on the fourth
Monday of June, the second on the third Monday of
September the third on the second Monday in March,
the fourth on the second Monday in May each session
to commence at and to continue to adjourn from
day to day until all business requiring the attention of
both Boards is transacted" "It shall not be lawful
for either Board to adjourn for more than one day
without the consent of the other and all adjourn
ments of stated sessions shall be by joint resolu-
ton" ...
But the act of 1882 seems to have contemplated
that each meeting on Monday should be distinct
session. to be limited to one day, with proviso for
adiournmens to the next day, any other day with
in the week. The limitation to "any other day
within the week seems strongly to countenanee the
idea that each Monday was to be the commencement
of a new and distinct " stated session."
Upon the letter of the charter there be doubt
of the power ofthe Corporation to prescribe any
Der of distinct sessions upon divers days, in addition
to the session required by the charter; but | very
much doubt whether it was ever contemplated by
Congress that by what is in effect only an adjourn
ment from Monday to Monday, there should be fifty
distinct Sessions" and as many distinct processes"
in the year. any more than that there should be three
hundred by adjournments from day to day.
In effect and substance lit may well be argued)
this is one annual session. continuing throughout the
year; which seems to equally far from the mind
of Congress when empowering the Mayor to make
appointments to continue 3" to the end OF the then
ensuing session." Such a construction would render
the words "then ensuing session" insensible; since
oh whereas those
words imply that there shall or may be some other
session or sessions Of the same council besides the
one "then ensuing.
Under these circumstances neither construction
appears to entirely consistent with the intention
Of the charter. But of the two that which is the
more compatible with II is to regard each Monday as
the commencement of distinct session. and conse-
quently to conhne the power of the Mayor TO make
the appointment during the interval between such
sessions and to limit the duration of the incumbency
to the end of such session then ensuing
But we have seen that in this manner, oftenas
an appointee shall be rejected, the effect of such
lection is simply to leave his appointment to expire
at the end of the session, and thus that vacancy
occurs and recurs totes quotes in recess OF the
Board.
Even q new nomination of another person, con-
irmed by the Board, would not dispace the first in
cumbent; but it would remain for the Mayor to re-
move him and appoint the other, to whose appoint
ment the Board would have already consented. This
seems perfectly clear in legal contemplation. 1t is
not novel Doctrine ppt mas peen approved Dy the
Supreme Court of the United States in suit upon
an official bond, where the question arose whether
the particular liability upon bond given under
an appointment in the recess or a new bond given
after nomination, confirmation, and appointment of
the same person.
The argument upon this point is stated with char
acteristic force and precision by Mr.. Legare in his
opinion in Tyson's case, (4th Opinions Attorneys
General, 3D. Mr.. Tyson had been appointed com
missary during the recess. Upon the meeting Of the
Senate he was nominated. That body rejected the
nomination. Afterwards during the same session,
Mr.. Tyson made requsition for $4,000 to be dis
bursed by him. Mr.. Spencer, Secretary of War, sub
mited to Mr.. Attorney General Legare the requisi-