Argument for Plaintiff in Error.

tion 354 is conclusively shown by section 4 of the act of January 31, 1883, 22 Stat. 412, c. 41, which is in the following words: "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."

This section is not referred to in the opinion of the learned judge of the court below. Had it been brought to the attention of the court it would, we conceive, have compelled a judgment in support of the plea. Congress, it thus appears, clearly recognized section 354 as a part of the subsisting law regulating the police force of the District as much as seven years before the so-called appointment of the defendant in error, Hutton.

Nothing is more improbable than that Congress should have harbored the purpose to deprive the police force of the District of the great advantage of being recruited from men honorably discharged from the army and navy, bringing as they do into the force the tone of the regular military service. It is a mistake to suppose that this requirement was intended to be temporary.

The case of Eckloff v. District of Columbia, 135 U. S. 240, does not conflict with our theory, because it holds that in the matter of appointments and removals from the police force the act of 1878 had superseded and repealed the previous law, which is undoubtedly correct.

But it is to be remembered that it was "the powers and duties" of the police board only that were transferred to the commissioners by section 6 of the act of 1878. Now these "powers and duties" did not extend to the subject of the qualifications of members of the police force, nor can it be said. that the existence of section 354, prescribing such qualifications, is, in any just sense, an interference with or a restriction upon the appointing power of the commissioners, or is in any

Opinion of the Court.

way incompatible with the act of 1878. Nobody doubts that Congress may prescribe qualifications for office without at all invading the power of appointment of the President, let alone the commissioners of the District.

The appointment of Hutton being in violation of law, the District of Columbia cannot be compelled to make compensation for services rendered by him under that appointment.

Mr. Andrew B. Duvall for defendant in error.

MR. JUSTICE LAMAR, after stating the case, 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 defence. 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

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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. 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

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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 43d 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 towards 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 orginating 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, 92, it is this: "When there are two acts

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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, 617; Tracy v. Tuffly, 134 U. S. 206, 223; Fisk v. Henarie, 142 U. S. 459.

It is contended, however, that by the act of January 31, 1883, (22 Stat. 412, c. 41; Sup. to Rev. Stat. 2d edition, 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, 148; Town of South Ottawa v. Perkins, 94 U. S. 260, 270; United States v. Claflin, 97 U. S. 546, 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 a proper construction of that section and subsequent legislation upon the same subject