Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-10-26
OTHERS INCLU De D
Suggested Effect Of New Code Upon
District Offices.
Us. ATTORNEY AND AOfARIES PUBLIC
Views Of Lawyers Upon Topic of
General interest.
ACT OF CONGRESS QUOTED


In reference to the assertion that the
effect of the code Of law for the District
of Columbia, in it's present form, Is to
legislate out of office the two judges of
the Police Court, the marshal and the re-
eorder of deeds and certain other officials,
as pointed out in The Star, further exam
nation of the code, 1t Is declared, would
seem to Indicate that the United States
attorney for the District Of Columbia and
all notaries public for the District are SIM
ilarly affected.
Section 904 Of the Revised Statutes of
the United States relating to the District
of Columbia provides that there shall be
appointed an attorney Of the United States
for the District, who shall take the oath
and perform all the duties required of dis
trict attorneys of the United States. This
section was drawn from the act Of Feb
ruary 81 1901, and that section by the re-
peal provisions of section 1896 of the Re
vised Statutes was repealed. The present
United States attorney for the District OF
Columbia holds his appointment under Sec
ton 904
1t is explained by those who hold this
view that this section, 9O4, is part of an
act of Congress which relates solely to the
DlSIrlCt OF COIumDla, especially So III 50 Lar
as the appointment to the Office in question
is concerned, as contradistinguished from
the oath and duties required of him. Sec
ton 1886 of the code, approved March 3.
1901, expressly provides, among other
things, that all acts or parts of acts OF
Congress applying solely to the District of
Columbia in force in the District on the
day of the passage of the code are thereby
repealed, with certain exceptions, which
do not in any manner, it Is stated, bear
upon the Office in question or it's present
incumbent
Power of Appointment.
The United States attorney for the Dis
trict has power to appoint. and has APP
pointed, various assistants for service in
his office. Such appointments are not made
by the President or any Of the courts, and
anything which affects the tenure of office
of the district attorney likewise affects his
assistants.
In view of the fact that the present in
cumbent of the office of United States at
torney for the District Of Columbia has
been appointed and holds his Office under
the provisions of an act of Congress apply
ing solely to the District of Columbia, in
force in the District on the day of the pas
sage of the act, and as the code expressly
repeats the act under which he holds his
office, it seems to follow that the effect of
this is to put an end to his tenure of office
at the time the code goes into effect, jan
uary 2, 1902.
Another aspect of the matter with regard
to the incumbent of the office of dis
trict attorney is that he holds under
recess appointment, which has not yet been
confirmed by the Senate. If his appoint
ment be not confirmed before the code goes
into effect, it would seem that for this rea-
son he could not afterwards act: but on
the other hand. even If he be confirmed be-
fore the code goes into operation he ap-
pears to be legislated out of office by virtue
of the provision of the repeating clause of
the code.
Recess Appointment.
The same consideration may also apply
to the recess appointment of Justice Thos.
H. Anderson. OF course, any acts per-
formed by Mr.. Gould or. Justice Anderson
before the code goes into effect, whether
their appointments be confirmed or not,
would be entirely legal and valid.
The enactment of the proposed amend
ment to the code, or reappointment by the
President. confirmation by the Senate and
qualification under the provisions of the
code, will, it is said, settle the questions
suggested in the foregoing The difficulty
now presented, according to those inter-
ested, is not in what Congress intended to
do. but what 1t has actually done.
Relating to Notaries Public.
The act of Congress Of June Z. 1878, pro-
vides, among other things, as follows:
'The President shall also have power to
appoint such number of notaries public,
residents of said District, as in his dis
cretion the business of the District may
require. Said notaries public to
hold their offices for the period of five
years, removable at discretion.
"All laws and parts of laws inconsistent
with any of the provisions of this act be,
and the same are hereby, repealed"
This act of June Z, 1878, is entitled can
act regulating the appointment of Justices
1a,,
censtables within and for the District of
Columbia and for other purposes" 1t is
an act which, beyond all question, so 1t is
said. applies solely to the District of Co
lumbia, so far as the appointments of no.
taries public are concerned.
Section 55S of the code provides that the
President shall have power to appoint such
number of notaries public. residents of said
District, as. in his discretion, the business
of the District may require. Section $50
provides that the notaries public shall hold
their offices for the period of five years.
removable at discretion. Sections 56O-573
prescribe the powers and duties of the no.
taries public.
Section 1886 of the code provides, among
other things. that all "acts and parts of
acts of Congress applying solely to the
District of Columbia in force in said Dis
trict on the date of the passage of this
act, are hereby repealed" From this re-
pealing clause certain acts are excepted
none of which. however, have any relation
to notaries public.
No Preyision for Continuance.
The code, so it Is declared. contains no
provision whatever for continuing the in
cumbents of the offices of notaries public
in their present positions. as all of them
hold their appointments and exercise their
powers by virtue Of an act of Congress
which as to them relates solely to the Dis
tr1ct OF Columbia, and as the code expressly
repeats all such ucts it appears to follow,
SO 1t Is declared. that all Of the present
notaries public are legislated out of office
by the provisions Of the code
nile 1t Is not believed that there was
any intention upon the part of Congress
that the code should have such effect upon
the tenure OF office of the present notaries
public, yet 1t is said to be quite manifest
that this Is the effect Of the code. for what
ever may have been the intent in fact the
intent in law, as shown by the unambigu-
Gus language of the code itself, is held to be
ail-controlling. AS the notaries public derive
their appointments from the President, it
seems to follow that unless the code be so
amended before It takes effect as to con-
tinue the present incumbents in office. or
they be reappointed by the President and
qualify under the code after ii takes ef-