Section 354 of Rev.Stat.Dist.Columb., providing that
"No person shall be appointed to office, or hold office in the
police force [of the District of Columbia] who cannot read and
write the English language, or who is not a citizen of the United
States, or who shall ever have been indicted and convicted of
crime, and no person shall be appointed as policeman or watchman
who has not served in the Army or Navy of the United States and
received an honorable discharge"
was repealed by the Act of June 11, 1875, "providing a permanent
form of government for the District of Columbia." 20 Stat. 102, c.
180.
Ecklof v. District of Columbia, 135 U.
S. 240, affirmed as to the point that the Act of June
11, 1878, 20 Stat. 102, c. 180, supplied to the District of
Columbia for the first time a permanent form of government in the
nature of a Constitution.
United States v.
Tynen, 11 Wall. 88, quoted and applied to the
points: (1) that when there are two acts on the same subject,
effect is to be given to both, if possible; (2) that when two acts
on the same subject are repugnant, the later operates to repeal the
earlier to the extent of the repugnancy, and (3) that a later act
covering the whole subject of an earlier one and embracing new
provisions showing that it was intended as a substitute for the
earlier act operates as a repeal of that act.
When a later act operates as a repeal of an earlier act of
Congress, a subsequent recognition of it by Congress as a
subsisting act will not operate to prevent the repeal.
The Court stated the case as follows:
This was an action by Harry S. Hutton against the District of
Columbia to recover the sum of $182.50, with interest, alleged to
be due him for salary as a member of the metropolitan police force
of the District from June 6, 1890, to August 20th of the same
year.
The defendant filed a special plea in bar admitting plaintiff's
appointment on the police force at the salary specified in the
declaration, and also his faithful performance of the duties
required of him in that position for the time for which he
Page 143 U. S. 19
claimed pay, but setting up by way of avoidance that he ought
not to recover because, at the time of his appointment, he had
never served in the Army or Navy of the United States, which
service it was alleged was and is a condition precedent to legal
appointment on the police force.
To this plea the plaintiff filed a demurrer which set up (1)
that the statute relied upon in the plea had been repealed and that
there was no such statute in force in the District of Columbia, and
(2) that the appointment of the plaintiff on the police force, and
the acceptance of his services as such officer by the defendant,
entitled him to recover for such services.
The demurrer was certified to the Supreme Court of the District
in general term, to be heard there in the first instance, and,
having been overruled, judgment was entered in favor of the
plaintiff for the full amount sued for. The opinion of the court
below, in advance of the official reports, will be found in volume
19, Washington Law Reporter 386. The District has prosecuted a writ
of error.
The single question in the case is whether § 354 of the Revised
Statutes of the United States relating to the District of Columbia,
prescribing the qualifications of persons eligible for appointment
on the police force, was repealed by the Act of June 11, 1878, 20
St. 102, c, 180.
To understand fully the nature of this question, a brief summary
of the legislation of Congress respecting the government of the
District to Columbia, and especially with regard to the District
police, since 1861 will be found useful, if not indispensable. By
the Act of August 6, 1861, 12 St. 320, c. 62, the District of
Columbia was constituted a "Metropolitan Police District," and the
police affairs thereof were put under the control and management of
a board of police consisting of the Mayors of Washington and
Georgetown and five commissioners of police, to be appointed by the
President of the United States, by and with the advice and consent
of the Senate. This board was invested with plenary powers
respecting the police affairs of the District in all particulars,
and the act established a complete system of police. The eighth
section,
Page 143 U. S. 20
among other things, prescribed qualifications for holding any
office on the police force by providing therein as follows:
"No person shall be so appointed to office, or hold office in
the police force aforesaid, who cannot read and write the English
language, or who is not a citizen of the United States, or who
shall ever have been indicted and convicted of crime."
Shortly after the close of the war, an additional qualification,
for the benefit of the honorably discharged soldiers and sailors of
the United States who had participated in that great struggle was
prescribed for those holding office on the force. The General
Appropriation Act of March 2, 1867, 14 St. 440, 457, c. 166, in its
first section provided that
"hereafter no person shall be appointed as policeman or watchman
[in the metropolitan police for the District of Columbia] who has
not served in the Army or Navy of the United States and received an
honorable discharge."
These provisions respecting the qualifications of an officer on
the police force were carried into the Revised Statutes of the
United States relating to the District of Columbia, enacted at the
first session of the 43rd Congress, and are there embodied in §
354. That section provides as follows:
"No person shall be appointed to office or hold office in the
police force who cannot read and write the English language or who
is not a citizen of the United States or who shall ever have been
indicted and convicted of crime, and no person shall be appointed
as policeman or watchman who has not served in the Army or Navy of
the United States and received an honorable discharge."
During all this period and up till 1878, the police affairs of
the District remained under the control of the Metropolitan Police
Board established by the act of 1861. In the meantime, however, the
other governmental affairs of the District had undergone several
changes. By the Act of February 21, 1871, 16 St. 419, c. 62, a
territorial government was established for the District, the
general administration of affairs being committed to a governor and
a legislative assembly. This territorial system of government,
however, did not last long. The act establishing it was repealed in
1874, and the repealing
Page 143 U. S. 21
act vested the affairs of the District in a commission
consisting of three persons, to be appointed by the President of
the United States by and with the advice and consent of the Senate.
This commission was invested with large and ample powers for the
administration of the general affairs of the District, but had no
power or authority in matters relating to the schools or to the
police. With respect, however, to the appointment and removal from
office of persons employed in other capacities, and those officers
themselves, it provided, in § 2, as follows:
"Said commissioners are hereby authorized to abolish any office,
to consolidate two or more offices, reduce the number of employees,
remove from office, and make appointments to any office authorized
by law."
Act of June 20, 1874, 18 St. 116, c. 337.
Affairs remained thus until 1878. On the 11th of June of that
year, an act was passed entitled "An act providing a permanent form
of government for the District of Columbia." 20 St. 102, c. 180.
This act continued in force the main provisions of the act of 1874,
enlarged the power and authority of the commissioners in some
respects, especially with regard to the schools and the police, and
retained the provision respecting officers, above quoted, from the
act of 1874. Its sixth section is as follows:
"That from and after the first day of July, 1878, the board of
metropolitan police and the board of school trustees shall be
abolished, and all the powers and duties now exercised by them
shall be transferred to the said commissioners of the District of
Columbia, who shall have authority to employ such officers and
agents, and to adopt such provisions as may be necessary to carry
into execution the powers and duties devolved upon them by this
act. . . ."
The court below held that the section just quoted had the effect
of repealing § 354 of the Revised Statutes relating to the
District, prescribing certain qualifications for officers and
members of the police force, and gave to the commissioners full
power and authority to appoint to such offices whoever they might
choose under such regulations as they might adopt.
Page 143 U. S. 24
MR. JUSTICE LAMAR delivered the opinion of the Court.
The question of the repealing effect of the act of 1878 was
before us in
Eckloff v. District of Columbia, 135 U.
S. 240. In that case, the question was whether that
statute had repealed § 355 of the Revised Statutes relating to the
District of Columbia, which provided that no person should be
removed from the police force except upon written charges preferred
against him to the board of police, and after an opportunity should
have been afforded him of being heard in his defense. The Court
decided that the repeal had been effected, and that the District
commissioners, under the power conferred upon them by those
sections of the act of 1878 to which we have referred, might
summarily dismiss and remove a member or officer from the police
force.
In its opinion, the Court considered the effect of the merging,
as it were, by the act of 1878, of the powers and duties formerly
belonging to the Metropolitan Police Board with those plenary
powers over the other affairs of the District which had been vested
in the commissioners by the act of 1874, and held that the
commissioners, under the act of 1878, had the same unlimited and
plenary power respecting the appointment and removal of police
officers as they had had under the act of 1874, and continued to
have under the act of 1878, over the other affairs of the
District.
The Court, however, did not rest its decision and judgment upon
that point alone, but went into a consideration of the
Page 143 U. S. 25
general object and purpose of the act of 1878, with respect to
the government of the District, and said:
"But our conclusions are not controlled by this construction
alone. The court below placed its decision on what we conceive to
be the true significance of the act of 1878. As said by that court,
it is to be regarded as an organic act, intended to dispose of the
whole question of a government for this District. It is, as it
were, a constitution for the District. It is declared by its title
to be an act to provide 'a permanent form of government for the
District.' The word 'permanent' is suggestive. It implies that
prior systems had been temporary and provisional. As permanent, it
is complete in itself. It is the system of government. The powers
which are conferred are organic powers. We look to the act itself
for their extent and limitations. It is not one act in a series of
legislation, and to be made to fit into the provisions of the prior
legislation, but is a single complete act, the outcome of previous
experiments, and the final judgment of Congress as to the system of
government which should obtain. It is the constitution of the
District, and its grants of power are to be taken as new and
independent grants, and expressing in themselves both their extent
and limitations. Such was the view taken by the court below, and
such, we believe, is the true view to be taken of the statute."
135 U.S.
135 U. S.
243-244.
Under this view of the object and purposes of the act of 1878,
we think the court below was correct in holding that that act
superseded and repealed by implication § 354 of the Revised
Statutes relating to the District of Columbia. It is true there are
no express words of repeal in the act of 1878 applied to said §
354. But the whole tenor of the act shows that it was intended to
supersede previous laws relating to the same subject matter and to
provide a system of government for the District complete in itself
in all respects. The language of the sixth section of the act of
1878 that the commissioners
"shall have authority to employ such officers and agents, and to
adopt such provisions as may be necessary to carry into execution
the powers and duties devolved upon them by this act"
clearly implies, we think, that in the
Page 143 U. S. 26
employment of officers over whom they are given control, they
may select such persons, under appropriate regulations, as they may
deem suitable and competent for the discharge of the duties
pertaining to such offices, without regard to their possessing the
qualifications prescribed by said § 354.
Moreover, we think the reasons actuating Congress in 1867 and in
the 43rd Congress for requiring that a member of the District
police should be an honorably discharged soldier or sailor did not
exist at least in the same degree, in 1878. When this
qualificational provision was first enacted, the war had not been
long ended, and it was but in harmony with the general liberal
policy of the government of the United States toward those who had
fought in its army and navy during that conflict that a
discrimination should be made in their favor in the matter of
appointments to various places of trust in the nation's capital.
Their appointment on the police force would serve also to imbue
that force with at least some of the precision and attention to
duty found in all well regulated military companies that have seen
actual service. But in 1878, the war had been over a number of
years, and those who had participated in its struggles were growing
old, and were becoming less able physically to perform all the
duties of a member of the police force. Under those conditions, it
is entirely consistent with the policy of Congress to hold that
they intended to abolish the qualificational standard originating
in the act of 1867. That standard of qualification was for the
benefit, as we have said, of those who had served in the war, and
to carry it along indefinitely would make it apply to those who had
enlisted and been discharged in time of peace, as well as to those
for whose benefit it was originally intended. As was said by the
court below, "it is not likely that Congress intended to
discriminate between the citizen and the soldier or sailor of a
peace establishment."
We are not unmindful of the rule that repeals by implication are
not favored. But there is another rule of construction equally
sound and well settled which we think applies to this case. Stated
in the language of this Court in
United
States v. Tynen, 11 Wall. 88,
78 U. S. 92, it
is this:
"When there are two acts
Page 143 U. S. 27
on the same subject, the rule is to give effect to both if
possible. But if the two are repugnant in any of their provisions,
the latter act, without any repealing clause, operates to the
extent of the repugnancy as a repeal of the first, and even where
two acts are not in express terms repugnant, yet if the latter act
covers the whole subject of the first and embraces new provisions
plainly showing that it was intended as a substitute for the first
act, it will operate as a repeal of that act."
See also Murdock v.
Memphis, 20 Wall. 590,
87 U. S. 617;
Tracy v. Tuffly, 134 U. S. 206,
134 U. S. 223;
Fisk v. Henarie, 142 U. S. 459.
It is contended, however, that by the Act of January 31, 1883,
22 St. 412, c. 141; Supp. to Rev.Stat., 2d ed., 397, Congress
recognized said § 354 as a still subsisting law, and that that
consideration should compel a reversal of the judgment below. We
are not impressed with this contention. The object of the act just
referred to was to abolish the detective force established by § 340
of the Revised Statutes relating to the District of Columbia, and
to increase the police force in certain respects. The fourth
section, which is the one relied on as sustaining the view
contended for, is as follows:
"That the commissioners may and they are hereby authorized to
appoint not more than six privates to be members of the police
force from among citizens of the United States who have or have not
served in the army and navy of the United States, but who shall
possess all the other qualifications prescribed by section three
hundred and fifty-four of the Revised Statutes of the United States
relating to the District of Columbia."
It is manifest, however, from an inspection of this section that
there was no recognition in it by Congress that said § 354 was
still subsisting law. But even if Congress had supposed that that
section was still the law when as a matter of fact it had been
repealed, it would make no difference in this consideration.
Postmaster General v.
Early, 12 Wheat. 136,
25 U. S. 148;
Town of South Ottawa v. Perkins, 94 U. S.
260,
94 U. S. 270;
United States v. Claflin, 97 U. S.
546,
97 U. S. 548.
The question is
was said § 354 repealed by the act of
1878? That is a judicial question, to be determined by the
courts upon proper construction of that section and subsequent
legislation upon the same subject
Page 143 U. S. 28
matter, and is not for the legislative branch of the government
to determine. Authorities last cited. The Act of January 31, 1883,
did not profess to re-enact the provisions of § 354, and we do not
think there is anything in that act running counter to the view we
have taken in this case of the repeal of that section by the act of
1878.
It is further argued that if said § 354 be considered repealed
by the act of 1878, then certain other named sections of the
Revised Statutes relating to the District of Columbia must also be
held to be repealed, and that certain evil consequences will flow
from such ruling with respect to those specified sections. That,
however, is a consideration not properly involved in this case.
Whether those specified sections or any others of said Revised
Statutes were repealed by the act of 1878 we do not now decide. Our
decision and judgment have reference solely to § 354. It will be
time enough to consider other questions when they are properly
before us.
Judgment affirmed.
