Hobson v. Hansen ( 1967 )

J. SKELLY WRIGHT, Circuit

Judge (dissenting):

The majority of this three-judge court has decided that 31 D.C.Code, § 101 (1961) is sustained alternatively by the District clause of Article I and the appointments provisions of Article II of the Constitution. I cannot agree. Ordinarily, nullifying an Act of Congress as unconstitutional is a drastic venture. But the institutional considerations which persuade courts to show restraint when asked to intervene in the affairs of the other branches of government largely disappear when the statute under review is one assigning responsibilities to the judiciary; and all agree that a federal court’s first duty is to guard zealously against impairment of its own integrity as an institution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The majority ignores these precepts. Today is the first time a court has ever held that Congress may impose on this or any other federal court a duty so totally unrelated to the judicial function. And indicators clearly show that § 101 poses a real threat to this court’s integrity.

I

Actually, Article II, § 2, cl. 2, which, of course, applies to all federal courts, has no immediate bearing on the question presented by this suit, since members of District of Columbia boards are not “Officers of the United States” within the sense of that Article.¹ If they were, the modes of their appointment would be rigidly limited to the alternative courses charted in Article II. But present and past practice are sprinkled with instances in which District officials have been chosen by processes alien to Article II.² The language of Article II has never been taken as straining toward comprehensive coverage; by traditional construction, ordinary minor federal employees — clerks, inspectors, even lawyers — are excluded from “Officers,” at least when Congress is silent.³ And that language is hospitable to a distinction between officers of the nation and of the nation’s capital city.

Because District of Columbia officials do not qualify as “Officers of the United States,” Article II cannot justify § 101. Nevertheless, if Article II does authorize federal courts generally, at Congress’ behest, to appoint inferior federal officials in other than the judicial branch, it would seem unreasonable to hold that federal courts here have lesser powers with respect to the appointment of officers of local District government. In this way, the court’s expansive reading of Article II might influence the dimensions of Con-egress’ power over federal courts in the District. I deal, therefore, with the court’s construction of that Article.

Article II unquestionably empowers Congress to confide in the courts control over the appointment of ancillary offieials in the judicial branch. However, § 101 concerns a board of education, a body which the court concedes is “totally removed” from the judiciary. If, as the court contends, Article II sustains § 101 quite independently of Article I, it would equally validate the conferral of similar appointment powers upon federal district courts outside the District; hypothetically, these courts could be instructed to nominate the board of directors of a local Community Action Agency or Project Head Start operating under Title II of the Economic Opportunity Act.⁴ 78 Stat. 516, 42 U.S.C. §§ 2781-2791 (1964), as amended. In like manner the majority’s logic would impel it to affirm not only § 101 but a statute obliging a federal court of appeals, for example, to appoint board members of a federal administrative agency, or one fastening comparable appointive duties on the Supreme Court itself.

The court must shoulder the burden of defending with convincing arguments a constitutional construction so instinctively hostile to American constitutional tradition. In my judgment, its arguments fall very short of this mark. There is no problem, first, in escaping from the “literal” reading of Article II, for it is simply not true that Article II •expresses any meaning quite so clear. Its language very naturally admits the common-sense reading that courts of law and the other listed offices were meant to appoint only those officers “inferior” to them. This was the meaning recently attributed to “inferior” by a leading student of the Constitution. Corwin, The President: Office and Powers 1787-1957 75-76 (4th ed. 1957). See also Collins v. United States, 14 Ct.Cl. 568, 574 (1878). No one would dispute, for example, that Article II contemplates that Congress may permit a Secretary to appoint only his own assistants,⁵ not the personnel of any of the other executive departments. And the narrower reading harmonizes with the most apparent purpose of Article II: to let Congress clothe Secretaries and courts with the necessary authority for filling vacancies in their •own staffs.

To support its Article II position, the majority next relies on language in one Supreme Court opinion, Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. '717 (1880). In Matter of Hennen, 38 U.S. (13 Pet.) 230, 257-258, 10 L.Ed. 138 (1839), the Court upheld the appointment by a district court of a clerk of court under Article II, saying that “the appointing power * * * was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged.” Subsequently, in Siebold, the Court approved a statutory arrangement requiring the appointment of federal election supervisors by the circuit courts.⁶ The Court went on, however, to comment in somewhat puzzling language that Hennen had correctly expressed “the law or rule by which it [Congress] should be governed,” under Article II, and then volunteered that “in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.” 100 U.S. at 398. For reasons developed more fully hereinafter, this court’s assigned duties under § 101 are incongruous with its Article III status, since § 101 in practical effect relegates District citizens with constitutional grievances against the Board to this court whose judges appoint the Board. Moreover, conflicting and ambiguous language in 19th century cases should not preclude this court from making its independent evaluation of Article II, with the guidance of those cognate doctrines whose print is felt throughout our constitutional structure.

Finally, the court cites statutes purportedly establishing a deeply sensed present congressional understanding that the boundaries of Article II are those it now identifies. But its citations singularly fail to uncover any such congressional practice. All but two of the cited enactments merely authorize judicial appointment of court-related personnel,⁷ and Article II sanctions these appointments by any reading. The exceptions, of course, are the statute in Siebold, repealed in 1894, and § 101. To advance § 101 as manifesting an ingrained congressional view that statutes like § 101 are constitutional is a wondrous instance of bootstrapping.

Rather, if historic congressional practice is germane to the constitutional question, it impressively supports the narrower construction of Article II; for, apart from § 101 and passing by the supervisors with moot status in Siebold, we are cited no instances, past or present, in which Congress found it necessary or proper to impose on federal courts the responsibility for appointing federal officials whose duties are unconnected with the judicial function. This tradition in Congress is in exact harmony with the insistent doctrine of our law, articulated by Article III and constitutional history, that the federal judiciary refrain from indulging in nonjudicial activities. This doctrine and the policies encircling it should be instrumental in resolving whatever ambiguity inheres in Article II.

Under Article III of the Constitution federal courts are by implication permitted to engage only in that business which is “judicial,” ⁸ and only in judicial matters which become incarnated in what the Constitution calls “cases or controversies.” The Constitutional Convention arrived at this pristine and scruplous settlement only after deliberating on, but rejecting in the end, proposals which would have associated federal judges with the Legislative and Executive Branches, or obligated the Supreme Court to file advisory opinions upon due request.⁹ Shortly afterward, in a celebrated encounter in 1793, Chief Justice Jay’s Supreme Court politely spurned President Washington’s request that it enlighten the nation by rendering an advisory interpretation of provisions in treaties between the United States and France.¹⁰

The judicial elaboration since then of the particular restraints latent in the broad negative commandments of Article III is revealing if familiar history. If judicial resolution of a case will be subject to revision or kindred subsequent action by the Legislature or Executive, the federal court must stay its hand¹¹; it is similarly bound to abstain from adjudicating lawsuits which for any reason lack an authentically adversary character ¹²; and the issues presented must not only assume legal dress but must be susceptible to resolution by judicial methods rather than by the considerably freer choice between competing policies which characterizes legislative and administrative decision-making.¹³

While this cluster of restrictions undoubtedly reflects a variety of constitutional policies, common threads run through them all. One is that attention to extrajudicial activities is an unwanted diversion from what ought to be the judge’s exclusive focus and commitment: deciding cases. Another is that, inasmuch as the judicial method is inappropriate for coping with non judicial issues, federal judges have no special competence for disposing of them. Since these issues involve democratic choice, it is politically illegitimate to assign them to the federal judiciary, which is neither responsive nor responsible to the public will. Moreover, it misleads the public to camouflage the legislative character of a social decision and shore up its acceptability by committing it to the judiciary, thereby cashing in on the judicial reputation. Most critically, public confidence in the judiciary is indispensable to the operation of the rule of law; yet this quality is placed in risk whenever judges step outside the courtroom into the vortex of political activity. Judges should be saved “from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties.” ¹⁴

These considerations apply with more than usual force to § 101. The duties it imposes periodically result in a serious drain upon the available work time of district judges.¹⁵ In weighing appointments to the School Board the District Court has frequently been beleaguered by the appeals of civic groups lobbying for or against candidates, or espousing standards for the court to apply in making appointments¹⁶; the committee of the District Court judiciary which screens nominees has sometimes actively solicited recommendations.¹⁷ The court has been the subject of editorial commendation and rebuke, depending on the papers’ estimation of the qualifications of the appointees, and those of the judges to serve as public school overseers.¹⁸

The issues with which the judges have necessarily become involved in selecting board members are highly charged with political emotion. The race issue, for one, has cropped up in widely variant contexts: whether, in the years before 1954, District schools should remain segregated ¹⁹; the pace of desegregation after the Supreme Court’s decision in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. .693, 98 L.Ed. 884 (1954) ²⁰; the racial composition of the School Board itself ²¹; and, especially in recent years, the racial impact of policies not ostensibly motivated by discriminatory considerations.

Apart from race, public education is today riven by keen debate about priorities and techniques. Should youngsters be taught to read phonetically or by the instant appreciation of entire words and phrases ?²² Should schools in lower class neighorhoods seek mainly to implant vocational skills or instead endeavor to confer a traditional general education ? ²³ What mixture of academic and practical qualifications should public schools exact from those seeking initiation into the teaching profession ?²⁴ These are samples of the questions which perplex educators and can ultimately determine the quality of our national life. If selection of the Board of Education is to be a responsible act, the agency charged with appointment must inform itself of the positions of the many candidates on the various questions of educational policy and at least begin to make its own decisions on where educational wisdom lies.

Those hazards inhering in judicial acceptance of extrajudicial occupations have then been realized quite fully within the District Court’s experience under § 101. In some measure, further, the hazards will recur whenever federal courts are told to appoint government administrators whose work is not connected with the judiciary; and, while the measure may vary, the evils will seldom be de minimis.

Avoidable constitutional construction entailing so widespread a sacrifice of Article III principles should not be undertaken unless the practical considerations in its favor are quite compelling. The reason advanced in Siebold, supra, explaining its treatment of Article II, is that the difficulty in classifying particular positions as within or outside the judiciary would trouble Congress and the courts were the narrower construction embraced. 100 U.S. at 397, 398. But surely there is room for deference to the congressional judgment on individual situations; and if Congress concludes that it is debatable whether an officer is in the judiciary or in an executive department, under Article II it can allowábly commit the power of appointing him to either one.

In elaborating its Article II argument, the court places repeated reliance on the fact that § 101 confides duties in the “judges,” not the court itself. There is a rather uneasy tradition indicating that judges may take on extrajudicial public responsibilities. See Hayburn’s Case, 2 U.S. (2 Dali.) 409, 1 L.Ed. 436 (1792); United States v. Todd, 54 U.S. (13 How.) 52, 14 L.Ed. 47 (1794). That practice has come under congressional fire²⁵ and stands now in disfavor; it is widely felt that a federal judge should abstain from accepting such assignments except in situations of pressing public need. In any event, these assignments run to one or two individual judges, not to the court as a whole; to the man, not the office; and they are without effect unless the judge personally consents. The practice, therefore, provides no help at all for § 101, which imposes upon the court as a collective unit a continuing obligation to act officially. To let constitutionality turn on the fact that Congress said “judges” rather than “court” would attach critical significance to a trivial detail of draftsmanship. Lastly, were the “judges” argument sound, by its nature it would have a life of its own. I can discern no logic specially tying or limiting it to Article II, or for that matter Article I. Alone, then, it would legitimate § 101, as well as other provisions assigning varieties of non-adjudicative responsibilities to regular federal court judges.

For all these reasons, my conclusion is that Article II permits Congress to require a.federal court to appoint only personnel meaningfully affiliated with the judiciary. Therefore, it affords no basis for § 101.

II

The other justification tendered in support of § 101 is Article I, § 8, cl. 17 of the Constitution, affirming congressional authority “to exercise exclusive legislation” over the District of Columbia. Pursuant to this authorization, Congress has created courts of limited jurisdiction to handle civil, criminal and juvenile cases arising under the District of Columbia common law and code; their judges serve for terms of ten years.²⁶ These are prototypes of “legislative courts” — established by Congress under discrete items of Article I legislative authority and free from the jurisdictional strictures of Article III.

The United States District Court and the United States Court of Appeals for the District of Columbia have a different stature and function. While endowed with special competence over certain classes of significant local cases,²⁷ they are invested as well with the entire jurisdictional spectrum enjoyed by federal trial and appellate courts elsewhere: “The parallelism * * * is complete.” F. T. C. v. Klesner, 274 U.S. 145, 156, 47 S.Ct. 557, 71 L.Ed. 972 (1927). The question presented here is whether Congress may assign to this federal court the task of appointing a school board for the District. That question turns, to some extent at least, on whether this court is legislative under Article I or constitutional under Article III, or both— a subject of much litigation and conflicting jurisprudence.²⁸

Initially the Court of Appeals for this Circuit concluded that this District Court, having been established under Article III, was thereby incapacitated from functioning administratively. In re Macfarland, 30 App.D.C. 365 (1908), appeal dismissed, 215 U.S. 614, 30 S.Ct. 402, 54 L.Ed. 349 (1909.²⁹ Later, however, within the space of seven years, the Supreme court thrice indicated that the federal courts in the District for jurisdictional purposes were organized as legislative courts. Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731 (1923); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478 (1927); Federal Radio Comm’n v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969 (1930).³⁰ In none of these cases, all involving review of administrative proceedings, was the approved statutory jurisdiction so blatantly unjudicial in substance and form as that contemplated by § 101.³¹ Even so, the Court justified its rulings only on the thesis that the District of Columbia courts were unaffected by Article III. See General Electric, supra, 281 U.S. at 468, 50 S.Ct. 389; Ex parte Bakelite Corp., 279 U.S. 438, 460, 49 S.Ct. 411, 73 L.Ed. 789 (1929).

Then, only three years after the General Electric case, the Court dramatically changed direction. In O’Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), it held that the United States courts in the District were Article III courts whose judges were due the salary and tenure protections that Article affords. Having gone so far, the Court declined to reverse Keller and its progeny completely, saying instead it would acquiesce in continued Article I jurisdiction for District federal courts, on the theory they were able to receive jurisdiction at the same time from Artide III and the District clause of Article 1.³²

This hybrid jurisdiction dictum marked a clear departure from prior law, which had been pervaded by the unquestioned assumption that Articles I and III were mutually exclusive sources of federal judicial authority³³; it was vigorously opposed in O’Donoghue itself by Chief Justice Hughes and Justices Van Devanter and Cardozo, dissenting, whose position was that “[i]f the limitations relating to courts established under § 1 of Article III applied to courts of the District of Columbia, they would necessarily prevent the attaching to the latter courts of jurisdiction and powers of an administrative sort.” 289 U.S. at 552-553, 53 S.Ct. at 751. And the dictum has remained entirely hypothetical; in the 33 years since its announcement not once has it been utilized to uphold any specific assignment of administrative business to a federal court in the District, or elsewhere.³⁴

Only two cases raising legislative court issues have come before the Supreme Court since O’Donoghue was decided; their cumulative effect has been to cut away its dictum’s sustaining logic. In National Mutual Ins. Co. v. Tidewater Transfer Co.,³⁵ first of these, the majority of the Court qualified the doctrine which provided the exclusive buttress for the hybrid jurisdiction notion.³⁶ In O’Donoghue Mr. Justice Sutherland had said that Congress’ plenary powers to legislate for the District justified its clothing an Article III court with extraordinary Article I jurisdiction over matters concerning the District. But Tidewater indicated that the District clause in and of itself does not permit Congress to attach such jurisdiction to federal district courts generally; six Justices there spurned the suggestion that a regular federal court could legitimately acquire a mixed jurisdiction, even under authorizing legislation explicitly grounded in the District clause and expressing Congress’ deliberated policy of giving District litigants due access to federal forums.³⁷

After Tidewater, O’Donoghue might have been assigned the rather practical-minded but perhaps satisfactory explanation that circumvention of Article III, intolerable if it applies to federal courts generally, can be condoned if isolated to one or two special courts. But that prop has been swept aside by the recent decision in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). There, after recognizing that the Court of Claims and the Court of Customs and Patent Appeals are within Article III, the Supreme Court, insisting on Article III purity, indicated they would be forbidden from thereafter exercising any incidents of Article I jurisdiction which might be found to remain in their portfolios.

Since Congress’ Article I authority over customs, patents, and the settlement of federal liabilities is at first blush as complete and exclusive as that over District matters, Glidden and O’Donoghue are not easily reconciled; after Glidden, the most that might remain of the O’Donoghue dictum is that Congress may, under the District clause of Article I but no other, invest one or two Article III courts with Article I business, but only if the courts are physically located within the District. It is not easy to capture a general constitutional principle which can rationalize so unusually particularized a result; to say that the federal courts here are sui generis is to assert a conclusion, not to develop a logic which could explain the congressional authority to overcome Article III in begetting these seemingly aberrant institutions.

It should come, then, as no surprise that the Glidden prevailing opinion,³⁸ under the guise of interpreting O’Donoghue, in fact probably modified it considerably. In the course of blunting the argument that O’Donoghue enables Congress to assign extrajudicial duties to the two courts in question, it read O’Donoghue as signifying the following:

“The restraints of federalism are, of course, removed from the powers exercisable by Congress within the District * * *. Thus those limitations implicit in the rubric ‘case or controversy’ that spring from the Framers’ anxiety not to intrude unduly upon the general jurisdiction of the state courts * * * need have no application in the District.” 370 U.S. at 580, 82 S.Ct. at 1489.

This view draws attention to inoffensive ways in which District of Columbia federal courts are undeniably unique within the federal judicial system. They cope daily with probate proceedings and in the past have entertained jurisdiction over divorce — areas of the law which other federal courts must shun whether or not diversity or alternative jurisdiction bases are satisfied.³⁹ As common law courts they are free even in the absence of diverse citizenship to entertain ordinary civil actions,⁴⁰ and to apply in those cases legal doctrines which they independently discover or formulate. Compare Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). On its criminal side the District Court regularly tries serious local crimes — including robbery and murder — which, as federal officials remind us,⁴¹ are ordinarily beyond the sweep of federal jurisdiction.

These features all stem from the absence here of a state judicial establishment whose jurisdiction would complement and dovetail with the jurisdiction assumed by the federal courts. See Kendall v. United States, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838). And these features, Glidden strongly suggests, define the outermost limits of the extraordinary jurisdiction of the District federal courts ⁴²; the urgent need to occupy what would otherwise be a judicial vacuum hardly licenses this court to accept functions in no sense legitimately judicial. The significance of Glidden’s discussion of § 101, cited by the majority in another context, is the Court’s «¿«willingness there to locate authority for § 101 in Article I.⁴³ That the opinion displays caution in not shrinking O’Donoghue expressly does not alter its plain direction.⁴⁴ And since the perplexity of a local judicial vacuum is a factor aptly distinguishing the District clause from other categories of Article I congressional authority, the O’Donoghue hybrid jurisdiction dictum, as re-formulated in Glidden, harmonizes well with the emergent constitutional rule that all other Article III courts are unable to receive Article I jurisdiction.

While this constitutional history may not be explicit enough to coerce lower federal courts here to embrace the revisionist doctrine proposed in Glidden, it at least relieves them of any obligation to honor and apply the O’Donoghue dictum in a mechanical, undiscriminating fashion ; the assumption that this court may bypass Article III jurisdictional limitations in some or ordinary circumstances provides no answer to the question whether Congress may require it to appoint a school board.

Not only does § 101 bind the judiciary to a grossly unjudicial chore⁴⁵; but for reasons spelled out just below, it seriously jeopardizes the integrity of this court and interferes with its disposition of the Article III business coming before it. The reasoning in the major part of O’Donoghue itself was wedded to the idea that the independence of the District’s federal courts must be vigorously affirmed. For these are the courts in which the activities of the federal government are so frequently measured against the rule of law; and District residents deserve a quality of justice no less excellent than that available to citizens in Article III federal courts elsewhere. 289 U.S. at 539-540, 53 S.Ct. 740. Even O’Donoghue, then, provides little support for § 101; permitting it to stand in reliance on that case is to allow dictum to triumph over holding ⁴⁶ To do so is especially regressive when we are aware of how time has so eroded the doctrinal foundation of the dictum’s most extreme implications, and cast great doubt on their present viability. This court, therefore, should on constitutional grounds decline to accept solely executive tasks, at least when there is firm reason to believe that their execution would seriously damage the integrity of this court derived from Article III.

It is in these respects that § 101 is vulnerable. It has, first, a special ability, exhibited in Part I of this opinion, to embroil the District Court in acute political controversy injurious to its prominence as a court of law. Chief Justice Stone once warned President Roosevelt that when a judge accepts executive responsibilities “[h]e exposes himself to attack and indeed invites it, which because of his peculiar situation inevitably impairs his value as a judge and the appropriate influence of his office.”⁴⁷ Whether or not these tendencies are inevitable in the general situation, they are vividly illustrated by the District Court’s experience with § 101.

That section raises, additionally, the unbecoming spectre of federal judges passing on the legality of acts of their appointees in suits brought by District citizens pressing federal rights, including the constitutional right to equal educational opportunity. The dangers inhering in judicial review of action in which the court or judge is in some way implicated were recognized at the Constitutional Convention ⁴⁸ and have been echoed by some of our leading jurists.⁴⁹ For the District Court to preside over a school board lawsuit might provoke a serious constitutional question, since “[e]very procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Turney v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927), quoted and applied in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

We need not reckon today, however, with the issue whether in public litigation § 101 would of its own force deprive civil plaintiffs of due process ⁵⁰; the question here is whether its impact is severe enough to prove it incongruous with the integrity of the judicial process. Fearful of the tenacity with which human beings, not excluding judges, seek to justify their behavior and presume it justifiable, I must conclude so. At the very least, private counsel in school board litigation, wary of antagonizing the court, would hesitate to condemn the board with the vigor that circumstances might imaginably warrant; and board members involved in litigation might themselves become inhibited in court as they brood on their subjection to reappointment by the judges as their terms expire and to recall at any moment. Decisions of the court upholding the board would, moreover, be susceptible to understandably cynical popular interpretations.⁵¹ The need to preserve judicial integrity is more than just a matter of judges satisfying themselves that the environment in which they work is sufficiently free of interference to enable them to administer the law honorably and efficiently. Litigants and our citizenry in general must also be satisfied.

It could be argued that the problem is easily evaded by assigning a circuit judge to handle these eases. That was the procedure followed in this case — but for the sufficient reason that the district judges here are defendants by virtue of the challenge to § 101. They will not be defendants in future legal actions attacking the administration of the schools. The precedents supply no sure conclusion, but since all the district judges are charged with § 101 responsibility, a district judge presiding over a suit charging the Board with serious or unconstitutional misfeasance should probably sua sponte disqualify himself as “so * * * connected with any party * * * as to render it improper, in his opinion, for him to sit on the trial * * * therein.” 28 U.S.C. § 455 (1964). And if, in fact, we could be assured that the District Court judge would recuse himself, we would have clear evidence that this nonjudicial function has rendered him unfit fully to perform his primary role.

To hold that the Constitution precludes judicial acceptance of tasks such as these would augur no appreciable inconvenience to Congress in its stewardship over the District. Presently the District Court and the Circuit Court of Appeals exercise practically no jurisdiction, § 101 aside, that is plainly beyond the constitutional boundaries suggested in Glidden. The items of jurisdiction dealt with in Keller, Postum and General Electric have long since been transferred to other tribunals or amended so as to acquire judicial form.⁵² And if Congress still wishes to exploit the judiciary for nonjudicial purposes, it could turn to the inferior courts of the District, whose potential jurisdiction, while subject to possible due process limitations, is in no way hemmed in by Article III.⁵³ Since states, similarly, may attach legislative duties to the non-Article III courts of their own creation, but not to federal trial and appellate courts sitting there, the parity between states and the District which the majority opinion requires would be genuinely present.

The federal courts in the District of' Columbia have long labored under the depressing psychology of the old line of cases. Just when it appeared that, with the help of the Supreme Court, we would soon gain recognition of full, unadulterated Article III status and independence equal to federal courts throughout the country, today’s decision turns back the clock in holding that, after all, we are still vassals of the Congress.

I respectfully dissent.

1 . Article II, § 2, el. 2 reads :

“ * * * and he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

“[A] 11 other Officers of the United States” is the apparent antecedent of “such inferior Officers,” the phrase in the passage at the end of the clause on which the court relies.

2 . E. ()., 2 D.C.Code § 201 (1961) (two members of District Anatomical Board to be picked by Surgeons General of Army and Navy); § 1702 (chairmen of District committees in Senate and House to appoint one member of District Armory Board); Act of 1812, ch. 75, § 3, 2 Stat. 721, in D.C.Code pp. xxix-xxxi (1961) (District mayor to be selected by board of aldermen and board of common council); Act of 1802, ch. 53, § 2, 2 Stat. 195, in D.C.Code pp. xxviii-xxix (1961) (public election of city council). See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104-110, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953) (home rule constitutional).

3 . Compare Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692 (1920), and United States ex rel. Crow v. Mitchell, 67 App.D.C. 61, 89 F.2d 805 (1937),with Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880).

4 . The majority grants that Article II could not authorize Congress to assign courts tasks that are “incongruous” with the judicial function. But then it appears to decide that duties of appointment, as opposed to the administrative tasks committed to the appointees, never are “incongruous.” In this connection it should be noted that § 101(b) provides for removal of school board members by the court, and under § 101(a), of course, the appointees may or may not be reappointed.

The court’s opinion does not find or rely on any triviality in the stature or responsibilities of the Board of Education, the body whose members this court appoints under § 101. The general language of Article II renders such a distinction of dubious relevance. And the finding could not rightly be made in this case. Education is “perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954); the power to control the character of the school board is a lever to affect the community profoundly.

5 . Since Congress lias not granted these permissions, the immediate subordinates of Department Secretaries are now all appointed pursuant to the general provision of Article II: that is, by the President with the advice and consent of the Senate.

6 . Under the amendments to the Enforcement Act, 16 Stat. 433 (1871), Rev. Stat. Tit. XXVI (1875), these supervisors were to do no more than witness congressional elections to find out whether voting qualifications were evenliandedly applied. Apparently they were then to report irregularities to the House of Representatives, for use as evidence if the House were requested to exercise its constitutional responsibility of judging the outcome of congressional elections. U.S.Const., Art. I, § 5, cl. 1. When the House so sits to judge elections, it exercises a function which is ■characteristically judicial; its proce-

dures, then and now, contemplate the submission of complaint and answer and provide opportunity to secure depositions, Act of Feb. 19, 1851, ch. XI, 9 Stat. 568, as amended, 2 U.S.O. §§ 201-226 (1964); and it is expected to make findings of fact and apply rules of law. See Scharpf, Judicial Review and the Political Qxiestion — A Functional Analysis, 75 Yale TjJ. 517, 539-540 (1966). The Enforcement Act itself gave circuit courts jurisdiction to count ballots and declare the winners in state and municipal elections contaminated by alleged deprivations of the right to vote on account of race. Section 23, ch. CXIV, 16 Stat. 146 (1870), the progenitor of 28 U.S.C. § 1344 (1964). The supervisors were, then, auxiliary to the administration of justice. Certainly they had no legislative or administrative responsibility for developing policy.

Congress repealed the supervisors provisions in 1894. 28 Stat. 36.

7 . Even the Commission on Mental Health, appointed by the District Court under 21 D.C.Code § 308 (1961), is clearly enough a servant of the court. Its statutory responsibility is to “make reports and recommendations to the court as to the necessity of treatment * * * of * * * insane persons,” and it is to act “under the direction of the equity court.” As the Court of Appeals said in De Marcos v. Overholser, 78 U.S.App.D.C. 131.132,137 F.2d 698. 699 (1943): “The statute * * * was passed in 1938 in recognition of the fact that the assistance of unbiased experts was essential to assist courts in dealing with insanity cases.”

8 . At several points the court’s opinion seemingly denies this limitation, hinting instead that, while the “case or controversy” requirement modifies their powers to act judicially, federal courts remain somewhat free to accept responsibilities that are entirely non-adjudicative in nature. This suggestion, if intended, is heresy, unsupported by anything in history, case law, or the commentaries. It would be a very great anomaly if courts’ powers to accept tasks increased as the tasks became decreasingly judicial. And were the majority prepared fully to embrace this thesis, its discussion of Articles I and II would be superfluous; § 101 is unquestionably non-adjudicative.

9 . See the accounts in Hughes, The Supreme Court op the United States, 27-29 (1928), and Hart & Wechsler, The Federal Courts and The Federal System 13-14 (1953).

10 . See the source materials collected in Hart & Wechsler, op. eit. supra Note 9, at 75-77, and the accounts in 1 Warren, The Supreme Court in United States History 108-111 (1922), and Haines, The Role op The Supreme Court in American Government and Politics 1789-1835 143-145 (1944).

11 . Haybum’s Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792); United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 42 (1852).

12 . United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943) (feigned case); St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943) (mootness); Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

13 . Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908); see Weight, Federal Courts § 15 (1963).

14 . Matter of Richardson, 247 N.X. 401, 420, 160 N.E. 655, 661 (1928) (Cardozo, C. J.).

15 . At a hearing before the Legislative-Judiciary Subcommittee of the House in 1953, the Director of the Administrative Office of the U. S. Courts was asked why Chief Judge Bolitha J. Laws needed a $10,000-a-year administrative officer. He answered that “such duties as selecting school board members ‘take an appreciable amount of time of Judge Laws.’ ” Washington Post, June 14, 1953, p. 1-A, col. 6. In 1956 Judge James R. Kirkland, head of the committee which reviewed nominations, was quoted as saying: “I spend more time on school business than judicial * * * and sometimes I wonder if the taxpayer is getting his money’s worth.” Washington Post, Feb. 12, 1956, p. E-2, col. 2.

16 . Washington Post news stories reveal that the following groups have cast their influence: Federation of Civic Associations (June 26, 1949, p. 15-M, col. 8); League of Women Voters (April 15, 1962, p. 1-B, col. 7); N.A.A.C.P. (Feb. 6, 1954, p. 15, col. 8); District Congress of Parents and Teachers (March 7, 1956, p. 14, col. 3); Americans for Democratic Action (May 16, 1957, p. B-2. col. 2); Urban League and Central Northwest Citizens Association (June 10, 1962, p. B-4, col. 1). Other groups reported to have taken public positions include the Congress Heights Citizens Association, the Greater Washington Central Labor Council, the Fort DuPont Civil Association,, and the Northwest Boundary Civic Association.

17 . Washington Post, Feb. 29, 1956, p. 15, col. 3; April 22, 1957, p. B-2, col. 2.

18 . E. g., Washington Post, June 12, 1951, p. 10, col. 1; Dec. 5, 1951, p. 14, col. 1 (judges’ selections “have worked out lamentably in recent years”); June 7, 1952, p. 4, col. 1; Oct. 0, 1952, p. 10, col. 2; Oct. 20, 1952, p. 8, col. 2; April 4, 1954, p. 4-B, col. 1; June 28, 1956, p. 14, col. 1; June 20, 1962, p. A-16, col. 2; April 9, I960, p. A-10, col. 1.

19 . In 1949 the District Court judges declined to reappoint an outspoken opponent of segregation, and nominated instead another Negro who, while he was against segregation, felt that desegregation “takes a matter of education to bring about.” Washington Post, June 28,1949, p. B-l, col. 2.

20 . For an account of the Board’s consideration of a policy of gradual desegregation, and the public clamor stirred by its ultimate decision to integrate as rapidly as possible, see Hansen, Miracle Of Social Adjustment : Desegregation In The Washington, D. C. Schools 43-54 (1957).

21 . In 1962 Negro groups petitioned the judges for greater representation on the Board. See Washington Post, June 10, 1962, p. B-4, col. 1.

22 . See DeBoer & Dalliman, The Teaching of Reading ch. 6A (rev. ed. 1964); Mazuriciewicz (ed.), New Perspectives in Reading Instruction (1964); Gans, Fact and Fiction About Phonics (1964).

23 . Compare Conant, Slums And Suburbs ch. 2 (1961), with Rickover, Education and Freedom (1959); see generally Brauner & Burns, Problems in Education and Philosophy (1965).

24 . See Conant, The Education of American Teachers (1963); Koerner, The Miseducation of American Teachers (1963); Mayer, The Schools ch. 19 (1961).

25 . See House Judiciary Comm. Report on the Use of Judges in Nonjudicial Offices in the Federal Government, S.Exec.Rep. No. 7, 80th Cong., 1st Sess. (1947).

26 . Jurisdiction: 11 D.C.Oode §§ 741-742 (Supp. V 1966) (D.C. Court of Appeals); §§ 961-963, 1141, 1341 (Court of General Sessions); §§ 1551-1557 (Juvenile Court).

Term of Office: 11 D.C.Oode § 702(c) (Supp. V 1966) (D.C. Court of Appeals) ; § 902(c) (Court of General Sessions) ; § 1502(c) (Juvenile Court).

27 . See 11 D.C.Oode §§ 321(a), 521 (as qualified by § 961(a)), and 522 (Supp. V 1966). By congressional designation the Supreme Court is also a superior court for the District of Columbia. 11 D.C.Oode § 101(2) (Supp. V 1966).

28 . See Notes, 58 Nw.U.L.Rev. 401 (1964); 38 N.Y.U.L.Rev. 302 (1963); 71 Yale L.J. 979 (1962)'; 62 Colum.L.Rev. 132, 139-142, 151-154 (1962); Casenotes, 76 Harv.L.Rev. 160 (1962); 47 Harv.L. Rev. 133 (1933).

29 . Macfarland overturned dictum in Moss v. United States, 23 App.D.C. 475 (1904). The consensus of the text-writers prior to the brace of decisions in the 1920’s was that United States courts in the District were created solely under Article III. E. g., Burdick, The Law of the American Constitution 92 (1922); Dodd, Government of the District of Columbia 136 (1909).

30 . The holding in each of these three cases was only that Article III barred ultimate review of the appellate decisions in the Supreme Court. Technically, then, the Court’s discussions of D.C. court jurisdiction were only dicta; however, in General Electric the Court, while dismissing the appeal, let stand an appellate decision which had rewritten a Commission order. Compare Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923).

31 . Keller, supra, involved revision by the District Court of valuations set by the D. C. Public Utilities Commission; assessing the value of property is a function courts regularly perform in tort, contract and eminent domain litigation. Review of interference proceedings begun in the Patent Office, called into question in Postum, supra, was perfectly judicial except for an asserted lack of res judicata for the appellate decision. And a later Court opinion has practically confessed that the characterization of this jurisdiction as nonjudicial was error. Glidden Co. v. Zdanok, 370 U.S. 530, 576, 82 S.Ct. 1459, 1501 (1962); see id. at 605 n. 11, 8 L.Ed.2d 671 (Douglas, J., dissenting). General Electric, supra, concerned review of the F.R.C.’s refusal to renew a radio station license; license renewal raises issues so adjudicative in nature that even agencies are usually required to afford the license-holder a trial-type hearing. E. g., Columbia Auto Loan, Inc. v. Jordan, 90 U.S.App.D.C. 222, 196 F.2d 568 (1952). In each of these situations identifiable and adverse parties would appear in court flanked by lawyers who would argue from the evidence; the judicial structure of a proceeding, while not conclusive, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-228, 29 S.Ct. 67, 53 L.Ed. 150 (1908), usually verifies that it embodies a case or controversy. Tutun v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 70 L.Ed. 738 (1926).

32 . This logic immediately threatened the viability of at least General Electric. Article I jurisdiction under O’Donoghue can apparently be acquired only if it relates to congressional management of the District; but the jurisdiction assigned in that case fit, to the contrary, into a scheme of nationwide economic regulation. See Glidden Co. v. Zdanok, 370 U.S. 530, 580 & n. 53, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (Harlan, J.). It would be offensive, for example, if Congress could draw from the United States Court of Appeals here an advisory opinion on the constitutionality of proposed national legislation.

33 . See American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 7 L.Ed. 242 (1828); Katz, Federal Legislative Courts, 43 Harv.L.Rev. 894 (1930).

34 . Compare Lurk v. United States, 111 U.S.App.D.C. 238, 296 F.2d 360 (1961), affirmed on other grounds, sub nom. Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), which is the only District case applying this branch of O’Donoghue in any manner. I am aware of no other field of constitutional law in which dicta are so regularly discarded and so candidly acknowledged to be intrinsically lacking in compulsive authority. See O’Donoghue itself, 289 U.S. at 550, 53 S.Ct. 740; Williams v. United States, 289 U.S. 553, 568, 13 S.Ct. 751, 77 L.Ed. 1372 (1933); National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 604 n. 26, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (Jackson, J.). A federal judge is therefore nowhere else more obliged in deciding cases to search out underlying principles rather than end his inquiry when he encounters language seemingly in point. See Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 236, 70 S.Ct. 14, 94 L.Ed. 22 (1949).

35 . 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949). Tidewater assessed the constitutionality of the present 28 U.S.O. § 1332(d) (1964), which defines the District as a “state” for purposes of statutory diversity jurisdiction. Two Justices (Rutledge and Murphy) concluded that the District was a state within the sense of the diversity clause; the remaining seven disagreed. Three Justices (Jackson, Black and Burton) concluded that Congress could assign Article I jurisdiction to the federal courts generally; six Justices denied this, and vehemently. The five votes favoring the legislation provided a majority, although each of the two theories proposed to vindicate the statute was voted down by a majority. Compare the discussion of judicial voting procedures in Murphy, Elements oe Judicial Strategy 85-87 (1964). Tidewater decided the issue for the parties before it, and apparently is a lasting precedent for the constitutionality of § 1332(d).

36 . At least four Justices in two opinions in Tidewater arrayed themselves in opposition to the notion of a dual status for United States courts in the District. Mr. Justice Rutledge’s opinion reproved “the contradictions, complexities and subtleties which have surrounded the courts of the District of Columbia in the maze woven by the ‘legislative court— constitutional court’ controversy running through this Court’s decisions concerning them.” 337 U.S. at 604-605, 69 S.Ct. at 1184; and Mr. Justice Frankfurter expounded doctrine which by implication repudiated O’Donoghue on this point. 337 U.S. at 648, 652, 69 S.Ct. 1173.

37 . That the court in question was located in Maryland, outside the District, did not deprive the statute of the support of the District clause, for it is clear that legislation, if it is related to governing the District, may have legal effects beyond its boundaries. See Cohens v. Com. of Virginia, 19 U.S. (6 Wheat.) 264, 425-429, 5 L.Ed. 257 (1821). Congress, for example, could define the substantive law governing contracts to which a District citizen is a party, even though the agreements are entered into and sued upon in Maryland or elsewhere.

Conversely, it demeans the constitutional issue to suggest that the District clause empowers Congress freely to manipulate the jurisdiction of federal courts which happen to sit within the District, because of that geographical link. This suggestion, criticized in Watson, The Concept of a Legislative Court: A Constitutional Fiction, 10 Geo.Wash.L.Rev. 799, 820 (1942), was specifically argued and rebuffed in Glidden Co. v. Zdanok, 370 U.S. 530, 580, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); see Glidden, Brief for the United States, 104-105.

38 . The opinion was by Mr. Justice Harlan, joined by Justices Brennan and Stewart. The Chief Justice and Mr. Justice Clark concurred separately because they reached the conclusion that the courts in question were created under Article III by independent reasoning. They agreed, however, that a hybrid status for those courts would be wrong, and their opinion is absent any intimation that they disagreed with the plurality opinion’s reasoning on that point. Justices Black and Douglas dissented, and Justices Frankfurter and White did not sit.

39 . See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930); Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867 (1893).

40 . See Pang-Tsu Mow v. Republic of China, 91 U.S.App.D.O. 324, 201 E.2d 195 (1952), cert, denied, 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953).

41 . E. g., Marshall, Federalism and Civil Rights 5 (1964).

42 . Intriguing wrinkles concerning the classification of the idiosyncratic jurisdiction of the D.C. federal courts need not be ironed out here. Divorce and probate proceedings, while they may lack, as Mr. Justice Harlan suggests, the elements of “ease or controversy,” may be immune from federal court jurisdiction only because of tacit exceptions to the diversity statute, or to the diversity clause of the Constitution. See Vestal & Foster, Implied Limitations on the Diversity Jurisdiction of Federal Courts, 41 Minn.L.Rev. 1 (1956). Cases arising under Acts of Congress legislating for the District should clearly fall within regular Article III federal question jurisdiction; and since the District of Columbia is a federal enclave, its common law may pro tanto be encompassed by federal question jurisdiction also. These suggestions are bolstered by the intermittent Supreme Court practice of reviewing constructions our Court of Appeals places on statutes in the D.C. Code, e. g., Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and likewise its rulings under the common law. E. g., Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946); Looney v. Metropolitan R. R., 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564 (1906). Others, however, have assumed that cases arising under our local common law fail to pose federal questions. Katz, supra Note 33, at 902-903.

43 . After itemizing the ways in which Article I permits an enlarged jurisdiction for District federal courts (probate, divorce), the Court says that authority for § 101 and 21 D.C.Code § 308 (1961) (see note 7 of this opinion) “is probably traceable” to Article II, 370 U.S. at 581 n. 54, 82 S.Ct. 1459.

44 . See 370 U.S. at 580 anti at 582, 82 S.Ct. 1459, 1489: the “case or controversy” requirement, to the extent it is designed to safeguard the independence of the federal judiciary, “remains fully applicable at least to courts invested with jurisdiction solely over matters of national import.” But that this court, in addition to disposing of its regular Article III business, also entertains a limited local jurisdiction does not lessen the necessity for preserving its independence, as O’Donoghue itself noted.

45 . In Tidewater, 337 U.S. at 591, 592, 69 S.Ct. 1173, Mr. Justice Jackson, the Justice least inhibited by Article III scruples, was willing to let federal courts in the states accept extra-Article III jurisdiction, but only if it were authentically “judicial.”

46 . The majority makes the large concession that O’Donoghue cannot justify this court’s assumption of jurisdiction which would be “incongruous” with its Article III status. To that extent these two opinions diverge only in their evaluation of the impact of § 101.

47 . Mason, Esotra-Judicial Worlo for Judges; The Vieios of Chief Justice Stone, 67 Harv.L.Rev. 193, 203-204 (1953).

48 . Opposing a proposal to include federal judges in a council of revision which would have been empowered to veto legislation, Rufus King argued: “[T]he Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Ferrand, Records op the Federal Convention 109 (1911).

49 . In turning down an opportunity to appoint the members or serve as chairman of a five-man United States Ballot Commission set up to handle the problem of soldier voting during World War II, Chief Justice Stone wrote:

“It is enough to say, without more, which might be said, that action taken by the Chief Justice in connection with the administration of the proposed legislation might become subject to review in the Court over which he presides and that it might have political implications and political consequences which should be wholly dissociated from the duties of the judicial office.” Quoted in Mason, supra Note 47, at 208.

50 . The majority distinguishes Turney and Murchison by noting that the particular situations there found offensive are not repeated here, without going on to investigate whether the nexus between state and court accomplished by § 101 stirs an evil of similar gravity. One important distinction is, however, available: both of those cases involved criminal prosecutions, where the standards of due process are especially rigorous. But rights secured by federal and constitutional law concerning education should likewise be safeguarded by adherence to very fair procedures.

The majority’s analogy to the judicial review of executive action is notably strained. The very point of the tenure guarantee of Article III is to release federal judges from any debts of gratitude running to the President who appointed them. As one Justice told a new colleague worried about pressures from former associates, “Yes, but you are here now.” Frank, Marble Palace 46 (1961).

51 . I am not alone in my conclusions. District Judge Luther W. Youngdahl, interviewed in 1952, decried § 101 as “contrary to the separation of powers,” and indicated that District Court judges (in the reporter’s paraphrase) “were placed in an untenable position because they might have to try cases involving the school board or members.” Washington Post, Oct. 6, 1952, p. 10, col. 2.

52 . The scope of review in the Keller statute has been narrowed, Act of August 27, 1935, § 2, 49 Stat. 882, 43 D.C. Code § 705 (1961), so that review is now judicial. The Postum jurisdiction has been reassigned to the Court of Customs and Patent Appeals. Act of March 2, 1929, c. 488, 45 Stat. 1475, 35 U.S.C. §§ 141-144 (1964). The Act of July 1, 1930, c. 788, 46 Stat. 844, limited review of determinations of the Federal Radio Commission to issues of law. This review as revised was accepted as judicial in Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166 (1933). The Court has taken note of this withdrawal of non-Article III jurisdiction from the District federal courts. Glidden Co. v. Zdanok, 370 U.S. at 580 n. 53, 82 S.Ct. 1459, 8 L.Ed.2d 671 (opinion of Harlan, J.).

53 . In 1906, when § 101 was enacted, the only local inferior courts were a police court and ten other “courts” manned individually by justices of the peace located throughout the city. See Act of March 3, 1901, c. 854, 31 Stat. 1189. The justices of the peace were consolidated into the progenitor of the Court of General Sessions in 1909. Act of Feb. 17, 1909, c. 134, 35 Stat. 623. The D.C. Court of Appeals was not organized' until 1942. Act of April 1, 1942, c. 207. 56 Stat. 194.