The Washington times., 1902-07-31
Continued from Second page.)
stationery and other expenses. in all.
s.. $50 -"
Mr. TracewelIs Answer.

SttIlcH o VI lLt dIt VI JuAt ~ 49,
(2s Stat. 2Os). provides:
"DIsbursing officers. or the head of any
executive department. or other estab-
lshment not under any of the executive
departments. may apply fer and the
Comptroller of the Treasury shall render
his decision upon any question involv
Ing a payment to be made by them or
under them, which decision, when rem
dered. shall govern the Auditor and the
Comptroller of the Treasury In passing
upon the account containing said dis
bursement.''
As shown In the communication above
set out of the Auditor the District ap-
preparation act for the current fiscal year
provides for ten justices of the peace at
S2. .000seach, and the further sum of $3.50
each for rent, stationery and other ex
penses, In all $4,000.
1t is only as 1t effects the use OF
this appropriation that | have authority
TO render a decision upon the questions
submitted by you. No decision made bv
me can affect the general question of the
validity OF the titles of the present JUS
tices OF the peace to the offices which
they are now holding. as such title af
fects the general public or the litigants
before either of such justices.
incidentally / must determine whether
they are legally invested with the Office
of justice OF the peace. for II not so in
vested they cannot be paid the salaries
Of the offices which thev claim they are
now holding.
"Who Are Such Justices"
One of your questions would seem to
indicate that 4 construction might pos
sibly be given to the act of Congress ap-
proved June 30. 1902, supra. amending
section 3 of the code, by which certain
of the ten justices would be retained in
ofIire and the others legisjated out.
\ This is implied in the query who are
such justices?" in connection with the
entire query Whether, in view of the
| act of Congress amending the District
| code approved June 30, 1902, there are
at present any justices OF the peace
| legally in Office in the District of Co
| lumbia, and If so, how many; who are
such justices. and what salary are they
! entitled to receive for their services as
| such"
! feel perfectly clear upon the PROPOSE
/ tion that no such construction can pos
! sibly be given to such amendment As
suming that under the provisions Of the
code as originally adopted. and before
! 1t was amended by the act of June 30,
| supra the ten persons now assuming TO
| be justices of the peace were legally
/ appointed and qualified and there is no
intimation in your communication that
/ such was not the case they are all now
| legally holding said offices under such
appointment and qualification, or all
| have been legislated out of office by
| the terms of said amendment.
/ There is no language in such amend
ment attempting in any wise TO segre-
gate from the ten justices OF the peace
any particular four of them TO be legis-
lated out. leaving the remaining six to
constitute the six justices of the peace
provided for in the amendment. II such
construction of the amendment were
attempted the amendment would fail
for uncertainty and would prove an in
effective law 1t would be void for
uncertainty.
Validity of Appointments.
While your communication does not
question the validity of the appoint
ments of the ten persons now at least
de facto holding the Offices of justices
of the peace in the District OF Column
bia, yet If their appointments were
originally void and they are merely de
facto and not de jure justices of the
peace under such original appoint
meuts not considering for this pur-
nose the effect of the amendment to
! section 3 of TIE code. | extremely doubt
| If YOU would be justified in paying to
Them their salaries as such merely de
facto officers out of the appropriation
| in question. The doubts as to the val
idity of their original appointments
grew out of the following facts:
| The code now effective in the District
of Columbia was approved on the Sd
day OF March, 1901. to become effective
as such on the lst day OF January. 1907.
i.;.s latter fact will prove to be OF i'm
portance, as will be seen later on.
Prior to the enactment and taking ef-
| feet of the code there were fifteen
J Justices of the peace in the District or
| Columbia. who had for their minis
| terial officers certain constables. Each
| of these sets OF officers received as
! compensation for their services as such
certain fees provided by law. The code
by section 3, provided for ten justices
| of the peace and made them salaried
cfficers. and fixed their compensation at
/ SO 600 each per year.
/ The repeating section OF the code re-
eaIad all former laws upon the sub
| ject.
Repeating Section of Code.
assume it is not a question in Sc
rious controversy that the effect of the
renealing clause was to legislate out OF
Office the then existing justices of the
ncace and constables This is the con-
struction given the code by both the
courts and by the President and Con-
eress. The President on the 10th day of
December. 1901. nominated to the Sen
ate. and on the 18th day of the same
month the Senate confirmed, the present
Justices of the peace provided for by
the code. On the oath day of the same
month. and before the first day of Janu
ary. 1902. the said justices took their
respective oaths of office and gave
bond and accepted such office on the 1st
| Of January 1902 the date when the code
went into effect and entered upon the
duties of these offices and have con-
tinued TO exercise them up to the pres
| ent time.
| There has been some contention that
an appointment to a new Office, to take
effect al a future day when the act ere
ating such Office is to so into effect. is
not valid and legal appointment to Of
| fee. There is some authority in sup
mort OF such contention. The great
weight of authority. however. is the 9TH
er way. 1t was held in State VS.. Irwin,
| . New, III: