Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-11-01

ES.
confusion. and not one of substance. The
power to appoint to Office involves the dis
erection to select the appointee, not to desig-
nate from small class already selected by
other authority.
The Question Determined.
This question was determined by the
Supreme Court in the Rock Creek Park
case The act of Congress prescribing
proceedings for acquiring land for
that park provided for a comms-
sion of five persons, denominated Off
ces in the act, to have charge of the pro-
ceedangs, three of whom the law provided
should be appointed by the President, by
and with the advice and consent Of the
Senate; the other two were to be the chief
OF engineers of the army and the Engineer
Commissioner Of the District for the time
being. 1t was contended that the law was
unconstitutional, as being a legislative APP
pointment to an Office created by the act
In dfsposing of this objection the Supreme
Court said: las, however the two persons
whose eligibility is questioned were at the
time OF the passage OF the act and of their
action under II officers of the United States,
who had been heretofore appointed by the
President and confirmed by the Senate, we
do not think that because additional duties
germane to the offices already held by them
were devolved upon them by the act It Is
necessary that they should be again ap-
pointed by the President and confirmed by
the Senate. 1t cannot be doubted. and 1t
has frequently been the case, that Congress
may increase the powers and duties of an
existing office without thereby rendering it
necessary that the incumbent should be
again nominated and appointed" (Shoe-
maker agt. United States, l47 Z. s., BOD.
This language applies with great force to
the question now under consideration. These
justices Of the peace were and are judicial
Offices appointed by the President and con-
| firmed by the Senate. and the act in oues-
ton simply added duties which were ger
name to the duties of their offices. The con-
clusion is, therefore, that the sections l0i7
ferred upon Mills the power and jurisdiction
TO preside in the Police Court.
As to Section 1897.
The next question is. has section 1877 been
| repealed by the act adding another judge
| to the Police Court?
This act was approved March 8, 1891. and
| amended July g. 1892, and enlarged the
| Jurisdiction of the Police Court. providing
| for jury trials in certain cases, and provid-
| ed for an additional judge Of the court, and
that each Judge might sit separately and
simultaneously for the trial of causes
There is no language in either of these
acts expressly repeating section 1o47. and
| the same is now in force unless ii has been
repealed by implication. Bearing in mind
| the rule that repeal by implication is not
| favored by courts, am unable to find any
thing in either the act of 1881 or that of
| 1892 Inconsistent with section 1897, nor is
| there any language i'm them to indicate that
| Congress intended to repeal or in any way
| rCllify that section. In several appropri-
alton bills passed since that act, Congress
/ appropriated to pay two justices of the
/ peace for presiding in the Police Court,
4 while prior TO the act of 1891 the appropri-
alton was for one only. This is not only
a legislative construction that section 1047
was not repealed by the act of 1891 but
\ shows that Congress understood that after
the addition Of another judge to the Police
| Court II might become necessary to have
two justices Of the peace presiding in that
| court
| But even IL section 1917 was repealed by
| Implication, inasmuch as Congress by its
| appropriation above referred to treated that
| section as still in force and as authorizing
| the designation of two justices of the peace
| to preside in the Police Court IL occasion
required, and inasmuch as a justice of this
| court, acting upon the same belief, made
the designation, and Justice Mills in pur-
suance thereof presided in said court. he
andoabtedly had such color Of right to ex-
ercise the functions of the office as to rem
/ der him Judge de facto. and his judg-
| ments as between the parties thereto valid
and binding; But it is argued that there
an office de jure. The answer is that here
| there was an Office de jure, that of judge
/ of the Police Court. The defect in the ar
l
section 1O47 attempted to create a new Office
and, being unconstitutional there was no
| Office created, and that therefore there
| could not be any de facto officer.
| 1t is further contended that section 1041,
| IL valid, only authorized the Justice of this
| court to designate one justice Of the peace
| to preside in the Police Court, and that the
| designation of two was void. and therefore
| there was no designation of any one But
| there seems to be no valid reason why two
! might not be designated at the same time.
either of whom could act alternately. or
| both at the same time IL occasion required
| In any event this would be only an irreg-
| ularity in the designation which could in no
| way affect the authc rity of the officer while
| acting.
The Record of the Sentence.
The fifth ground taken in the petition is
that there was no record of the sentence
| in the Police Court 20 justify the issue of
| the mittimus. The entry in the minute
book of the court under date of August 90
| 1892. is sentenced to be imprisoned six
months in W. H. and to pay a fine of $500
| and in default Of payment of the fine to
| be imprisoned in said W. III. six months
| additional" 1t is said that such entry does
| not authorize the issue of the mittimus
| which bears the same date as the above en-
| try, under the seal OF the court and signed
| by the clerk. reciting the above sentence
without abbreviation, and that Shea was
in default, and requiring the intendent of
the Washington work house to receive the
body Of said Shea into his custody and him
safely keep until he should be discharged
by due course of law.
1t is said that there is no formal judg-
ment on the verdict of the jury and no
designation OF the place where Shea is to
be imprisoned, and no certain time of i'm
prison ment. As to the first point there is
| no requirement of law that the judgment of
the Police Court shall be entered In the
| Journal or minute book in extenso and
signed by the judge. In the practical ad-
mnistration of the business of the court il is
impossible that II could be done, the number
of cases disposed Of are so numerous UNI
| less a much larger number of clerks should
be employed than are now provided for by
law. In practice in that court the clerk
| makes q brief memorandum in his minute
book Of the several steps or proceedings in
a case they occur, and of the Judgment
| Of the court. This seems to be all that is
| practicable TO make, and all that is neces-
sary for the protection of defendants. AS
| to the abbreviation wv. H" no uncertainty
! can arise out of the use of them in this
| particular case, as the statute itself pro-
vides that the Imprisonment shall be in the
wo-k house only, II being a second convic-
| ton, so that the sentence would have been
complete without any specification of place
| 1t seems to be definite as to time, six
months and fine of $500 as punishment for
the often Sc, and to be imprisoned six months
4