District of Columbia v. Hutton

Asst. Atty. Gen. Maury, for plaintiff in error.

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 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To this plea the plaintiff filed a demurrer, which set up (1) that the statute relied upon in the plea had been repealed, and that there was no such statute in force in the District of Columbia; and (2) that the appointment of the plaintiff on the police force, and the acceptance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, Wash. Law Rep. 386. The District has prosecuted a writ of error.

The single question in the case is whether section 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the District of Columbia, prescribing the qualifications of persons eligible for appointment on the police force, was repealed by the act of June 11, 1878, (20 St. 102.)

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,) 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, 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 participates in that great struggle, was prescribed for those holding office on the force. The gencral appropriation act of March 2, 1867, (14 St. 440, 457,) 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 forty-third congress, and are there embodied in section 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 mean time, however, the other governmental affairs of the District had undergone several changes. By the act of February 21, 1871, (16 St. 419,) 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 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 section 2, as follows: 'Said commissioners are hereby authorized to abolish any office, to consolidate two or more offices, reduce the number of employes, remove from office, and make appointments to any office authorized by law.' Act June 20, 1874, (18 St. 116.)

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. 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 1st 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 section 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 adpot.

[Argument of Counsel from pages 22-24 intentionally omitted]

A. B. Duvall, for defendant in error.

Mr. Justice LAMAR delivered the opinion of the court.