Evening star. [volume] (Washington, D.C.) 1854-1972, 1876-11-29
FUTURE GOVERNMENT OF THE DISTRICT.
The Power To Appoint Cosnmissisners
Opinion Of Hen. r. 7; Meyick On tie Legal Points

Involved.
Tine Joint Congressional Commission to
frame form of government for the District
Of Columbia having requested the opinion of
Hon. r.. i. Merrsck as to where the power of
appointment of the principal officer or Off
GERS Of the new District government consfi-
tutionally rests, he has furnished them with
the following:
1t is proposed that Congress should create
n municipal corporation as an auxiliary In
the government of the District of Columbia
and the question submitted is whether the
power 10 appoint the principal officer or Off
GERS of such an organization is limited to the
President Of the United States by the 2d sec
ton of article of the Constitutions and Com
gress thereby denied the right to make the
appointment itself, or TO provide for its being
said article. It is conceded that to provide
for the election of the officers in question by
the inhabitants who are TO be Incorporated,
of Congress. But, fortunately for the Dis
trict, the proposed scheme does not contem-
plate popular election III by the true con-
| Struction of the article of the Constitution
above referred to the officers OF the proposed
municipal organization are embraced with
in its terms, and the power of appoint
the Executive, IL would seem that Con-
gFeSS could have no greater or more ap-
parent right to transfer that power to
the people than to assume its exercise
directly i'm creating the charter, or to rest il
in the presiding officer of the respective
Houses or anybody else 1t might select for
the power that might be chosen by the legis-
lature could not justify the attempt to take il
away from where the Constitution had placed
d. That Congress can create such a cOrpO-
ration as that proposed will not be questioned
The Sth So Ct. of art. .confers upon Congress
the authority to exercise exclusive legisla-
ton in All cases whatsoever" over the Dis
trict of Columbia, and under this clause 1t
may certainly create a municipal CORPORA
tlon as an auxiliary in the government of the
terrltOTy, subjected TO Its jurisdiction and
control. The officers of such an organization
would be officers of the corporation and not
OF the United states, and could not by any
reasonable construction of the 2d section of
article of the constitution be brought within
its meaning. That section provides that the
President "shall nominate, and by and with
the advice and consent Of the Senate, shall
appoint ambassadors, other public ministers
and conSuls, judges of the Supreme Court.
and al OtseT others n the United SGtes whose
appointments are not herein otherwise pro-
yided for, and which shall be established by
law. The officers contemplated in the pro-
posed act are officers of a municipal corpora
ton, whose duties would be purely local and
necessarily limited to affairs of purely local
and municipal concern. The particular of
ficers designated i'll the article of the cGnsti-
connected with the administration of the
general government, and the expression, call
other officers of the United States" must be
construed TO mean such officers as shall be
required to perform some Official duty hav-
ing similar relation to the gen
eTal government and the general public.
o
ISL, provided THAT the governor shall APP
point all officers whose offices are established
by the constitution or shall be established by
law, and whose appointments are not herein
otherwise provided for" The court in con-
STRUNG this article of the constitution of that
state, in the case of Lieman VS.. Sutherland
sd Sergeant and Rowle, p. 1877, used the fol-
lowing language: The word Office is of very
vague and indefinite import. Everything
concerning the administration of justice, or
the general interest Of society, may be sup
EAd to no ff,sN
constitution, especially if fees or emOlu-
ments are annexed TO the office. But
there are matters of temporary and local
concern, which, although COMMENCEMENT
in the term Office, have not been thought to
be embraced by the constitution. And when
offices of that kind have been created, the
legislature have sometimes made the APP
pointment in the law which created Them
sometimes given the appointment TO the gov
ernOr, and sometimes given the power of re-
moval 10. others although the appointment
was LETT 10 the governor. The officers of
whom am speaking are often described in
acts of assembly by the name of Commission
es. such, for instance, as are employed i'm
laying out roads and canals and other works
OF public nature. Yet all these perform
dJsiy. or in other words exercise an
G1ice. SO likewise officers within the
pointed by the corporation unless they
concern the administration of iusticer
The opinion from which have just quotei
was delivered BY Chief Justice Tiighman and
concuTTed in by Gibson and Duncan. IL will
be seen that the court was composed of men
Of distinguished and acknowledged ability.
The reasoning Of the Chief Justice, or the
rule OF construction which he adopts, applies
with peculiar f0rca 10 The general provision
OF the Federal Constitution which ! am now
considering, and which was manifestlv in
tended 10 have relation TO those officers only
who were charged with duties connected with
the general administration of the govern
ment, and which can be made to apply to
those created by Congress, i'll the exercise of
its exclusive and si,nos. unlimited power OF
local. legislation, solely On ii,a ar6in, thaf
hey are HectSsts 30 embraced within the
term used. There is a union in Congress
OF the power Of exclusive legislation i'm
some places and limited Legislation in
others. In the cases OF limited legislation
the specific grant and designation of the sub
jet prescribes the pOwer-in the case of ex-
elusive legislation the power is given in
broad and comprehensive terms without
limit; such as are used in regard TO the ter
ritOries and the District of Columbia. In the
exercise OF its power in each of these cases
Congress is restrained by the general limita-
tiOns upon It's authority specified in the first
eight articles of amendment to the Constitu-
ton, guaranteeing certain rights and immu-
mites 10 the people. But, except as TO these
restrictions, specified in the articles referred
TO, and a few other restrictions in some later
amendments of similar character, the legis-
lative power OF Congress over the District of
Columbia il unlimited 1t acts at all times
the national legislature, but in dealing
with matters that relate TO the states it exer-
ciSes power Of different nature from that
which IL exercises in dealing with the terri
tories and the District OF Columbia. An
illustration OF the relations in which these
localities stand to the powers OF the federal
government and the Constitution, is
furnished in the decision of the Su-
pTeIne Court on the subject of the
Judicial power OF the United States. In
the case of the Insurance Company V. Can
ter, LIST Peters. 6o0), Chief Justice Marshall,
delivering the opinion of the court says: 1T
has been contensled that by the constitution
the judicial power OF the United States ex-
tends TO all cases of admiralty and maritime
Jurisdiction, and that the whole OF this Judi
cial power must be vested in one supreme
court, and in such inferior courts as Congress
shall from time to time ordain and establish.
Thence il has been argued that Congress can
not vest admiralty jurisdiction in courts
created by the territorial legislature. a
These courts are not constitutional courts IN
which the judicial power conferred by the
constitution on the general government can
| he deposited. They are incapable OF receiV-
| ing IL. They are legislative courts created in
virtue OF the general right of sovereignty
which exists in the government, or in
virtue OF that clause which enables
Congress TO make all needful rules
| and regulations respecting the territory be-
| longing TO the United States. The jurisdiction
Nth lclich they ore ttUested is not part Of that
judicial pOtCer. tChieh IS defined IN the 81 article