Evening star., 1902-07-30
Original Appointments.

I assume it is not a question in serious
controversy that the effect of the repeating G
clause was to legislate out of Office the then
existing justices Of the peace and con-
stables. This is the construction given the
code by both the courts and by the Presi-
| dent and Congress. The President on the
| 18th day of December, 1901, nominated to
the Senate. and on the 18th day of the
same month the Senate confirmed the pres
ent justices of the peace provided for by
the code On the oath day of the same
month. and before the first day of January,
1902. the said justices took their respective
oaths of office and gave bond and accept
ed such offices on the 1st of January,
| 1902. the date when the code went into ef-
| feet. and entered upon the duties of these
| offices and have continued to exercise them
| up to the present time
A Mooted Question.
There has been some contention that an
| appointment to a new office, to take eject
at a future day when the act creating such
! Office is to go into effect, is not valid ana
legal appointment to office There is some
authority in support Of such contention,
The great weight of authority, however, is
| the other way. 1t was held In State V. IT.
| win 3 New, Ill:
"A prospective appointment to fill an an
| ticipated vacancy in a public office, made
by the person or body which as then consti-
| tuted, is empowered to fill the vacancy
| when it arises, is, in the absence of law for
bidding 1t, legal appointment, and vests
| title to the office in the'appointee.
See also 19 Enc. of Law, 427, Note; State
| v. Van Buskirk, 40 N. ]. L. 1853; Haight "
Love, 80 N. j. L., IA; Smith V. Dyer, Cal,
562; also 135 Mechem on Public officers, PIP.
g. e. citing State v VI irwin ina RhNi.s New. III
Hampton, 101, n. c., $50; S. E. Rep 2l9;
Haight V. Love, 10 Vroom On. j. IA; 47S;
| Whitney V. Buskirk, 40 N. ]. L., 463.
In People VS. Blanding, 63 Cal, S33, 339
one of the grounds upon which the appoint
| mens by the governor to the office of harbor
| commissioner was attacked, was that under
| the provisions of the code which gave the
! governor power to appoint three harbor
| commissioners to hold office for two, three
and four years, respectively, and also in
! like manner at the expiration Of their re-
| spective terms appoint and commission
their successors for the full term of four
years. appointment which was made
by the governor before the expiration of
the term of one of the incumbents had ex-
pired, was valid. The term of the incum
bent in question expired on the Sth of
March, 1882. The governor nominated his
successor on April - 1881; on the 18th of
ment, and the Sth Of March, 1882, the
governor issued his commission and he
qualified. The court held this appointment
| to be valid.
In Whitney VS. Buskirk 40 n. ]. L., 463
| 4G9, the respondent was nominated by the
| mayor for the office of chief of police and
| confirmed by the council after the resigna-
! tion of the relator had been accepted, but
| before it was to take effect 1t was held
| that there was nothing to prevent the ap-
| poinment taking effect upon the expiration
| of the term of the incumbent, and that the
appointment was valid
In Norton VS.. Shelby county, 11S L. S,
| the court in its opinion cites and relies
| upon, at page AL, the case of Carleton VS..
| The People, 10 Mich, $50 In this case by
| the constitution of Michigan the laws of
| the legislature took effect ninety days after
| their passage. The legislature on the 4th
| Of February passed an act creating a new
nd a1YfhA ha al of
| county officers in April following. The Of
| ficers were elected within the ninety days;
| that is, before the act took effect, and they
| subsequently acted as such officers. The
| validity of their act was questioned on the
| ground that there was at the time no law
| that authorized the election, but the Of
| fees Were existing by the constitution,
| and as they subsequently entered upon the
| duties of those offices, it was held that they
| were officers de facto.
The Amendment to the Code.
I think it is entirely safe to affirm that
| these justices are de jure officers unless
| legislated out of office by the endments
| to the code approved June 30, 1902 supra.
| On first blush it would appear that the ad-
ditional section, 1913, added to the code by
| the amendment of June 30, 1902 and which
| reads: THAT nothing herein contained shall
| be held to affect the term of office of any
| judicial or other officer holding office when
| this code goes into effect and operation,
| except when, as in the case Of the present
| justices Of the peace and constables,
| contrary intention is manifested" had the
| effect of leglSatinG the justices of the
| peace out of Office, who had been ap-
| pointed under the original provision of Sec
| ton of the code. However, when one
| comes to consider the history of the amend
ments to the code, it is perfectly apparent
| that where the words present justices Of
! the peace and constables" are used in that
! section, they were used in reference to the
u ft.o nf 10 foe off in
| being when the original code went into ef-
| feet on the first day of January, 1902, and
| not the justices of the peace appointed un-
| der the provisions of the code itself. 1 ar
rive at this conclusion for the following
| reasons:
When Anen6m erts Were Drawn.
/. These amendments were submitted to
Congress by the committee of the Bar AS
sociation having them in charge early in
December 1891 with the full expectation
that they would become law at the same
time the code went into effect.
Section 1913 was prepared and submitted
by this committee.
3 On the goth of June, 1902 when the
amendments became law, there were no
| constables in the District of Columbia and
there had been none since the first day of
January. 1902.
3. Congress having appropriated for ten
justices of the peace for the fiscal year 1903
recognized the existence of the ten appoint
ed under the terms of section of the code,
as amended.
This leaves for determination the question
whether these justices were legislated out
of Office by virtue of the amendment of sec
ton 3 set out in the letter of the auditor
quoted above. If the first sentence of this
amendment were all Of it, 1 should con-
clude with some hesitancy that they were
legislated out of office 1t reads:
There shall be six justices of the peace
in the District, who shall be appointed by
the President of the United States for
term Of four years, unless sooner removed
as provided by law
But this sentence is not all of the amend
ed section 3. In order TO ascertain the
meaning of Congress- and when ascertain
&c it must govern, all the amended section
must be read and considered together; and
not only all of the amended section must