
    HARRIET T. JAMES, Administratrix, v. THE UNITED STATES.
    [No. 21959.
    Decided May 25, 1903.]
    
      On the Proof*.
    
    The salary of the office being §4,000, Congress in 1891 appropriate “for salary of the chief justice and five associate judges of the Supreme Court of the District of Columbia, at the rate of $5,000 per annum each, 830,000. ’ ’ JTor the following fiscal year only the salary of the office is appropriated, and during the year one of the judges retires. Subsequently, in 1895, Congress appropriate for the deficiency, so as retroactively to make the amount §5,000. The retired judge is paid his proportion. The question presented by the case is whether he retired on a salary of §4,000 or §5,000; and the question is raised by the defendants whether a court of the District of Columbia is a “court of the United States" within the intent of the Constitution, Ai'ticle III.
    I. It was the purpose of the framers of the Constitution that the 10 miles square which by the cession of States and the acceptance of Congress might become “the seat of the Government" should be as permanent as the States from which it should be taken; and territory acquired from States for the seat of the Government continues to be national. The District of Columbia is a part of the United States for all purposes, domestic and international.
    II. The legislation of Congress from the beginning of the Government has been upon the theory that the courts of the District are permanent tribunals.
    III.An inferior court under Article III of the Constitution need not possess all the powers and subjects of jurisdiction of every other inferior court of the United States.
    
      IV. By the Act 3d March, 1S63 (12 Stat. L., p. 762), establishing the Supreme Court o£ the District of Columbia, the judges are to hold office “ during good behavior,” as prescribed by section 1, Article III of the Constitution.
    Y. Legislative and executive construction since the establishment of the court in 1863 has uniformly treated it as a court established under Article III and one where judges are protected by the Constitution.
    VI. The Act 3d March, 1901 (26 Stat. L., p. 908, 947), which appropriated “ For the legislative, executive, and judicial expenses of the Government for the fiscal year 'ending June thirtieth, eighteen hundred and' ninety-two, and for other purposes,” was temporary in its operation and did not increase the salary'of the judges from $4,000 to §5,000.
    VII. A judge who retired in December, 1892, under the Revised Statutes (§ 714), which provide that a judge who resigns after having held his commission ten years and being 70 years of age “ shall during the residue of his natural life receive the salary which by law was payable to him at the time of his resignation,” can receive no more, though Congress previously appropriated more than the salary of the office, and subsequently appropriated more for the same fiscal year in which he resigned.
    
      The Reporter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant is administratrix of Charles P. James, late a citizen of the United States and a resident of Washington, D. C., who departed this life August 8, 1899.
    II. Claimant’s intestate was at one time an associate judge of the Supreme Court of the District of Columbia, which office he resigned December 1, 1892, after having held his commission more than ten years, and having attained the age of 71 years.
    III. Iiis salary at the date of his appointment was $1,000 per annum, at which rate he was paid until July 1, 1891.
    IV. From July 1, 1891, to June 30, 1892, his salary was $5,000 per annum, and from June 30, 1892, to December 1, 1892, he was paid at the same rate.
    Y. On his retirement he was paid, during the residue of his natural life, at the rate of only $1,000 per annum.
    VI. The period embraced in the claim herein is from December 1, 1892, to August 9, 1899, being six years, eight months, and eight days, at the rate of $1,000 per annum, aggregating the sum of $6,688.90.
    
      Mr. A. A. Hoeliimg, jr., for the claimant.- Air. Morgan II. Beach was on the brief.
    The increase made the salaiy fixed, there could be no diminution during continuance in office. To receive at stated times a compensation, is to be regularly paid. To receive at stated times a compensation which shall not be diminished, is to be regularly paid and to be protected against any reduction of pay.
    A compensation is diminished when it is made less than®it is, though equal to what it may have once been.
    After diminution that which has been diminished may be equal to what it at some earlier time had been; but it has been diminished. In all or nearly all of the plans proposed in the convention there was a prohibition against increase, as well as diminution. (Elliott’s Debates, 1 ed., vol. 1, pp. 149,176, 182.)
    Said Mr. Madison: “I wished mj^self to insert a restraint on the augmentation as well as the diminution of their compensation, and supported it in the convention. But I was overruled. I must state the reasons which were urged. They had great weight.” (Elliott’s Debates, Virginia, vol. 3, p. 537.)
    In Gommomoealth ex rel. Hepburn v. Mann (5 Watts & Serg., 403) the case was thus: Hepburn was appointed president judge of the ninth judicial circuit of Pennsylvania, March 5, 1839, when the salary was $1,600. By an act of July 19, 1839, the salary was increased to $2,000; by an act of January 14, 1843, the act of July 19, 1839, was repealed. Hepburn, as relator, brought mandamus against Mann, State treasurer, for payment of salary at the greater rate, and the repeal, inter alia, was set up by Mann in his answer, to’which the relator demurred. The constitutional provision of Pennsylvania was: “The judges of the Supreme Court and the presidents of the several courts of common pleas shall, at stated times, receive for their services an adequate compensation to be fixed by law, which shall not be diminished during their continuance in office.”
    
      The court say:
    “But this was an evil, if it be one, which must have been foreseen, ancl it appears did not alarm the convention, nor has subsequent experience evinced the necessity of any such precaution; and at any rate they were too wise to attempt to avoid a contingent evil which from the nature of things would not often happen, by running into another, in their estimation at least, of such transcendent importance and magnitude, jeoparding the independence and integrity of a coordinate branch of the Government.
    The. case is believed to be peculiar^ like the present, and being the only one discovered, after some research, is commended to special consideration.
    Yet Congress did not intend to reduce the salary fixed by the act of 1891. The appropriation of 1892 was, indeed, of a lesser sum in full compensation. Had this been the last legislation on the subject, the intention to reduce might have been drawn {Fisher's case, 109 U. S., 113), and the argument here might have been confined to the constitutional ground.
    But in 1895 Congress expressly appropriated an additional sum, by .way of deficiency, so as to supplement the inadequacy of the act of 1892.
    That is to say, Congress directing these judges to be paid in full compensation an inadequate sum, later says: Let this inadequacy be corrected and the full tale given them.
    True, Congress in 1893, establishing a court of appeals for the District of Columbia, enacted that thereafter the judges of the Supreme Court of the District of Columbia should receive $5,000 per annum; but this must be considered declaratory.
    One week before the act of March 3, 1891, the salaiy of every judge of every district court of the United States was made $5,000 per annum. Then came the act of March 3, 1891, the effect of which was to increase salaries which for a quarter of a century had remained constant.
    Is it to be said that Congress in lightening their labors by the erection of a new court considered for the first time that their salaries should be increased? Or that in paying their salary in two installments Congress intended that the first installment was enough.
    “ Every appropriation for the payment of a particular demand, or class of demands, necessarily involves and includes tbe recognition by Congress of the legality and justice of each demand, and is equivalent to an express mandate to the Treasury officer to pay it. This recognition is not affected by any previous adverse action of Congress; for the last expression by that body supersedes all such previous action.” (HuküPs case, 16 Ct. Cls., 565.)
    The statutory bar to airy part of this claim is tolled. The act of 1895, directing payment, had more than the effect of part payment within six years. “It necessarily involved and included the recognition by Congress of the legality and justice of each demand.” (PliddlVs case, supra.)
    The courts have ever jealously guarded the noninterference by taxation, State or Federal, with the salaries of the judiciary. For example, the cases of McCulloch,v. Maryland (I Wheaton, 316) and Weston v. Charleston (2 Peters, 449) settled the principle that,
    “the State governments can not lay a tax upon the constitutional means employed by the Government of the Union to execute its constitutional powers.”
    
      Jn Dobbins v. Commissioners of Erie County (16 Peters, 435) it was decided that it was not competent for the legislature of a State to levy a tax upon the salary or emoluments of an officer of the United States.
    In the Collector v. Day (11 Wall., 113) Congress, by certain acts passed in 1864, 1865, 1866, and 1867, levied a war tax of 5 per cent on amounts over <¡¡>1,000 derived from (inter-alia) “salaries or from any profession, * * * employment, or vocation carried on in the United States or elsewhere, or from any other source whatever.” Under this authority a collector of internal revenue assessed a tax upon the salary of Day, a judge of one of the (State) courts of Massachusetts. It was held by the Supreme Court (Justicc Nelson) that Congress had no authority to extend the tax to the salaries of judicial officers of the State.
    The compensation provided for in said section 1 prohibits the imposition of a tax upon the judge’s salary. (Commonwealth v. Mann, 5 W. & S., 415.)
    Congress, having power to establish inferior courts, must, as a necessary consequence, have the right to define then-respective jurisdictions. (Sheldon v. Sill, 8 How., 448-449; 
      Osborn v. ¿7. S. Bank, 9 Wheat., 738; Turner v. Bank, etc.,-i Dali., 10; McIntyre v. Wood, 7Cr., 506; Kendall v. U. 8., 12 Pet., 616; Caryv. Curtis, 3 How., 245.)
    Territorial judges are not of the class referred to in said section 1, as thejr only hold office for four years. {American Ins. Co.v. Canter, 1 Pet. 546; Bennerv. Porter, 9 How., 244.)
    Courts in which the judges hold their office for a specific number of years are not constitutional courts in which the judicial powers conferred by the Constitution can be deposited (id).
    When the Circuit Court of this District was established, on February 27, 1801, it was clothed by Congress with all the powers and jurisdiction that, at that time, belonged to the circuit and district courts of the United States; and it will be found that Chief J ustice Marshall and Mr. J ustice Story, and probably all the judges of the earlier court, when they speak of the Circuit Court of the District of Columbia, always call it the Circuit Court of the United States for the District of Columbia. Chief Justice Marshall never failed to so designate it.
    Section 760, .Revised Statutes of the United States, clothed the Supreme Court of this District with the same powers and jurisdiction as the circuit courts of the United States.
    By section 761, Revised Statutes of the United States, the justices of the Supreme Court were given severally the same powers and jurisdiction as those possessed and exorcised by the judges of circuit courts.
    By section 762 (id.) anj7 one of the justices majr hold a special term with the same powers and jurisdiction possessed and exercised by the district courts of the United States, and so on.
    Section 858, Revised Statutes of the United States (relating to evidence), which recites, “In the courts of the United States,” etc., has been held not to apply to the Territorial courts, such courts not being courts of the United States {Clinton v. Knglebrecht, 13 Wall., 434; Good v. Martin, 95 U. S., 90, etc.), nor to the Court of Claims {Jones v. United States, 1 C. Cls. R., 383,) but it does apply to the courts of the District of Columbia. {Noerr v. Brewer, 1 MacA., 507; Page v. Burn-stine, 102 U. S., 664.)
    
      And it was so held, notwithstanding the fact that the District of Columbia was not specifically named in said act, and, moreover, the District had at said time a special law covering sub-stantialty the same subject.
    And, finally, in the case of Erribry v. Palmer, (107 U. S., 3,) the Supreme Court expressly held that the Supreme Court of the District of Columbia is a court of the United States.
    And, furthermore, the Code of Law for this District recently passed by Congress continues in force the same powers and jurisdiction of the Supreme Court of the District of Columbia as theretofore possessed and exercised by it, and forever sets at rest any future controversy in respect of the question whether said court is or is not a court of the United States, so far as Congress may lawfully define its purpose in ordaining and establishing any particular inferior court, and has fixed its constitutional character by expressly directing that said Supreme Court of the District of Columbia “shall be deemed a court of the United States.” Section 61.
    So far as the argument on behalf of defendant seeks to draw an analogy between the courts of this District and the Territorial courts the same is inapplicable. Territorial courts are, of necessity, temporary in character, pending admission to statehood: the seat of government implies permanency; is not temporary in character, and can never ripen into statehood.
    
      Mr. Felix Brannicjan (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    1. Congress had in view, when it used the term “court of the United States” in section 714 of the Revised Statutes, the Supreme Court of the United States and such inferior courts as Congress had the power to ordain and establish under this article of the Constitution.
    2. Is the Supreme Court of the District of Columbia one of these inferior courts ? The Territorial courts are established not under the third article of the Constitution, but under the fourth article, section 3, clause 2, which says:
    The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; * * *
    
      Similarly, tlie courts in and for the District of Columbia were not established under the third article of the Constitution, but under the first article, section 8, clause 17, which grants power to Congress “to exercise exclusive legislation in all cases whatsoever,” over the'District of Columbia.
    Under those Constitutional provisions Congress has the same power to establish pourts in and for the District of Columbia that it has to establish courts in the Territories — no more and no less power; but the judges of those courts have no tenure of 'office or security of undiminishable compensation under Article III.
    Delivering the opinion of the Supreme Court in JEmbry v. Palmier (107 U. S., 3 and 10), Mr. Justice Matthews said:
    That the Supreme Court of the District of Columbia is a court of the United States results from the right of exclusive legislation over the District which the Constitution has given to Congress.
    Whether such a court be established in a Territoiy. or in and for the District of Columbia, it can not exercise any of the judicial powers enumerated in section 2 of the third article of the Constitution; it can only exercise like powers.
    3. The Territorial courts and the courts of the District of Columbia have therefore precisely similar status under the Constitution of the United States; and the political status of the inhabitants of the District of Columbia and the inhabitants of an organized Territory is practically the same. When the State of Maiyland ceded the territory now embraced in the District of Columbia, to the United States, the inhabitants of that District (then called the Territory of Columbia) lost at once all the political rights which thej^ had as citizens of a State, and among these the constitutional right to bring a suit ■ in a United States court against a citizen of any State of the Union. (J-Iepburn v. Pttzey. 2 Cr.,444; Bileyv. Lamar, ib., 344.) In other words, they had no more constitutional right to institute such a suit than had “Dred Scott” in the celebrated case of Scott v. Smford (19 Howard, 399).
    The people of the District of Columbia, at that time, passed at once into a Territorial status, their local government was not republican in form (2 D., 547), and the courts in and for the District of Columbia established after that time had necessarily tbe status of courts established b}^ Congress in and for the Territories.
    No change has been made in that status since that time. The fact that Congress has declared that the judges of the supreme court of the District of Columbia shall hold their offices during good behavior does not vest those judges with any constitutional tenure of office under Article III, nor is their compensation protected by that article. It follows from this that section 114 of the Revised Statutes must be interpreted or construed as extending only to judges of courts of the United States who hold office within the meaning of Article III of the Constitution.
    4. All our great jurists teach that the Government established by the Constitution is one of delegated powers, supreme in its prescribed sphere, but without authority beyond it. None of its branches can exercise any powers not specially granted in the Constitution, or necessarily implied in its enumeration of powers; and the.tenth amendment expressly declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” (In re Pacific Pailway Co., 32 Fed. Rep., 241-255.)
    
      (a) It follows, therefore, that any legislation of Congress that would undertake to vest any of the judicial powers of the United States which are enumerated in Article III of the Constitution in any court which is not an “inferior court” within the meaning of that article would necessarily be null and void.
    Story, in his Commentaries on the Constitution, says:
    “The functions of the judges of the courts of the United States are strictly and exclusively judicial. They can not, therefore, be called upon to advise the President in any executive measures, or to give extra-judicial interpretation of law, or to act as commissioners in cases of pensions, or other like proceedings.” (Sec. 1777; Ilaylurn's case, 2 Dal., 409; United States v. Ferreira, 13th How., 40; Todd's case, 13th How., 51-52, note of Chief Justice Taney; Gordon v. United States, 117 U. S., 697; In re Smilwrn, 148 IT. S., 222; Interstate Commerce Commission Brimson, 154 U. S., 447-485.)
    These judicial duties are, of course, confined to the exercise of the judicial powers enumerated in the article cited.
    
      This salutary doctrine enables us to determine the meaning of the words “ any court of the United States,” in section 714 of the Revised Statutes. They mean only such courts as are established by Congress pursuant to Article III of the Constitution. These are courts upon whom Congress can vest no judicial power beyond those enumerated in the second section of that article. It follows, therefore, conclusively, that the judges of “courts of the United States,” provided for in section 714 of the Revised Statutes, are the judges in whom such judicial power is vested, and in whom Congress can not constitutionally vest any judicial power which is not granted in the third article of the Constitution.
    (b) It has been settled beyond any question that can now be made, ever since the case of American Insurance Company v. Canter (1 Pet., 511-546), that Territorial courts established by Congress—
    “ are not constitutional courts in which the judicial power conferred by the Constitution on the General Government can be deposited. ”
    (e) It follows beyond question from this emphatic enunciation of Chief Justice Marshall — the greatest expounder of the Constitution — that the courts established by Congress in the Territories are not United States courts; therefore the Supreme Court of the District of Columbia is not a court of the United States, because, like a Territorial court, it is not and can not be vested with any of the judicial powers of the United States granted in Article III of the Constitution, and it is vested with many judicial powers not granted in that article, but which were reserved to the States or the ‘ ‘ people. ” Hence its judges are not, and can not be regarded,as judges of “a court of the United States,” within the meaning of section 714 of the Revised Statutes.
    (72) The distinction must not be lost sight of that the courts of the United States provided for in section 714 of the Revised Statutes can not be vested with any judicial power, except as enumerated in the third article of the Constitution; whereas the courts of the Territories and of the District of Columbia have always been vested with judicial powers far in excess of those enumerated in that article. They are, therefore, not constitutional courts, but legislative courts. The judges of constitutional courts must be appointed under Article III, which gives them tenure of office for good behavior, and says that their compensation shall not be diminished. The judges of all other courts established by Congress necessarily hold their offices only b_y such .tenure as Congress may from time to time prescribe, subject, perhaps, to the Executive power of removal; and their compensation is alwaj's at the will of Congress to increase or diminish it.
    
      (e) Reading, then, the letter of section 714 of the Revised Statutes in the light of the third article of the Constitution, wo discover its internal sense to be that Congress was therein providing only for “judges’’ of the courts of the United States who composed the judiciary of the United States, as authorized by Article III of the Constitution.
   Howry, J.,

delivered the opinion of the court:

Plaintiff, as administratrix of the estate of the late Judge James, brings this action to recover the difference between the salary paid to. him after his retirement as an associate justice of the Supreme Court of the District of Columbia and the salary which she claims should have been paid from the beginning of the judge’s retirement to the period of his death. The claim is sought to be founded upon section 714 of the Revised Statutes, which provides as follows:

“When any judge of any court of the United States resigns his office, after having held his commission as such at least ten years and having attained the age of 70 years, he shall, during the residue of his natural life, receive the salaiy which by law was payable to him at the time of his resignation.”

Judge James resigned December 1, 1892, having held his commission more than ten years, and being then in the seventjT-fourth jmar of his age. He died August 1, 1899. During his retirement he was paid at the rate of $4,000 per annum, besides a small sum hereinafter mentioned, while it is claimed he should have been paid at the rate of $5,000 per annum.

It is contended that the Supreme Court of the District of Columbia is not one of the inferior courts established under that part of Section I of Article III of the Constitution, which declares that

“The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts, as the Congress may from time to time ordain and establish. The judges, both of the Supremo and inferior courts, shall hold their offices during good behaviour and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.”

By Section II this judicial power is extended to all cases In law and equity therein enumerated.

The contention ignores the constitutional guaranty of judicial independence arising from tenure of office and permanence in' salary, and assumes that the Supreme Court of the District of Columbia is merely a legislative creation which Congress may abolish or change at will, without regard to incumbents, as in courts created for the Territories under a different article of the Constitution, from which it would result, if the contention be sound, that the Supreme Court of the District of Columbia is not a court of the United States within the meaning of section 111 of the Revised Statutes.

In Embry v. Palmer (107 U. S., 3) the Supreme Court of the United State's designated the Supreme Court of the District of Columbia as a court of the United States. This would end the discussion did it clearly appear from the decision that the court meant to declare a difference between Territorial courts and courts provided for the seat of government. In delivering the opinion, Mr. Justice Matthews said: “That the Supreme Court of the District of Columbia is a court of the United States results from the right of exclusive legislation over the District which the Constitution has given to Congress.”

It is argued, however, that the designation meant a court of the United States in the same sense that a court established by Congress in a Territory with circuit or district court jurisdiction meant. And that whether such courts be established in a Territory or in the District of Columbia, neither can exercise any of the judicial powers enumerated in Section IU of Article III of the Constitution, but that they can only exercise like powers.

Territorial courts are established under the general authority of Congress or by virtue of Section III of Article IV of the Constitution, which declares that “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'’

Defining the status of the two superior courts created by the act of March 30, 1822, for the establishment of a Territorial government in Florida, Chief Justice Marshall said they were not constitutional courts, but “legislative courts created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States." (American Ins. Co. v. Canter, 1 Pet., 511, 546.) jjBut all the provisions of- the Constitution must be considered and construed together in determining whether in the organization and control of Territorial governments all acts, including those establishing judicial tribunals, were not designed for purposes of temporary government while other acts, under 'which permanent courts were expected or required to be provided, included the right to make these permanent judicial bodies the depositary of some part of the judicial powers conferred by the Constitution on the General Government.!

Under section 8 of Article I of the Constitution, Congress have the power “ to exercise exclusive legislation in all cast's whatsoever over such district (not exceeding 10 miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States.”

The 10 miles square that might by cession of particular .States and the acceptance of Congress become the seat of government was meant by the framers of the Constitution to be as permanent as the States from whose boundaries the square was to be taken. The seat of government, unlike the territory acquired by conquest, treaty, and cession, was not to be donated or accepted as a transitory territorial boundary. It was a part of the constitutional scheme to provide for the perpetual use of enough territory free from State control to meet the demands of a permanent national seat of government. It would seem anomalous if the courts to be provided for the seat of government were not intended to be courts of the United States capable of receiving the judicial power provided by Article III as far as this judicial power could he made to apply and extend.

The legislation of Congress from the beginning of the Government to the present time is largely in keeping with the view that Congress have legislated upon the theory that the courts of the District of Columbia are permanent tribunals capable of receiving some part of the -judicial power which can bo conferred on courts in the District of Columbia as well as on courts of the United States in the States.

The judiciary act of 1T89 included the area which later formed the District of Columbia. (1 Stat. L., 73.)

When by the act of February 13,1801 (2 Stat. L., 89), Congress passed an act to provide for the more convenient, organization of the courts of the United States, the District of Columbia ivas included within a Federal district created by the act. .By the act of February 27,1801 (2 Stat. U., 103). entitled “An act concerning the District of Columbia,” the laws then in force in the State of Virginia and in the State of Maryland were continued in force in that part of the District which had been ceded by those States. A separate Circuit Court for the district wras made, in effect with all the powers of circuit courts and with judges of the same kind of tenure as provided for the court of the circuit from which the District was omitted. The District of Columbia was thus to all intents and purposes segregated as a single circuit from the other circuits and stood alone as a Circuit Court, m¿ geuevix. It possessed most of the powers belonging to circuit and district courts of the United States and nearly all the jurisdiction that belonged to either of them, and also had some powers which belonged to neither of those courts.

The District of Columbia is within the meaning of the. uniformity clause of the Constitution under the decision in the well-known case of Loughborough v. Blake (5 Wheat., 317). The District is a part of the United States for all purposes, domestic and international. It must continue so. Certain provisions of the Constitution which apply only to the States as such, or to the citizens of the States as such, may not be operative in the District, or to the citizens of the District, because the subjects to which they relate, or the conditions to which they apply, do not exist. Thus, citizens of the District of Columbia do not possess certain political rights that citizens of the States respectively have and enjoy. The constitutional right to bring a suit in a United States court against a citizen residing in any State of the Union is denied to a citizen here, because the District of Columbia is not a State within the meaning of that term as used in the Constitution. (Hepburn v. Ellzey, 2 Cranch, 445.) But the courts here have judicial power as permanent and lasting as elsewhere, and possess those subjects of jurisdiction which constitutionally are given to them. To bo inferior courts under Article III the}7 need not possess all the powers and subjects of jurisdiction precisely like every other court of the United States. The requisite jurisdiction is rightfulty conferred if within the subjects of the jurisdiction so conferred classes of matter fall which the courts so created may rightfully entertain.

The complete and exlusive jurisdiction of Congress over the District is incompatible with the proposition that the District was intended to be organized for judicial purposes as foreign territory which Congress might dispose of, or as territory to be held so tentatively that the judicial power could not be lodged in tribunals as national in character as courts provided in those States which had ceded the District for national purposes forever. Territory acquired for the seat of government continues to be national. The rights of persons to their lives, liberty, and property are the same in the District as in the States, and the judicial powers of the supreme court created for the District are the same and are to be exercised at law and equity in the same manner for the protection of life and property as in the United States courts created for the States, as near as as may be.

But because the Supreme Court of the District of Columbia is vested with some powers not enumerated in Article III of the Constitution it is argued that it can not be a constitutional court like those provided for by section 714 of the Revised Statutes.

' The proposition disregards the permanency intended by mo organic law for any' and all courts thereafter to be established at the seat of government. It ignores the design of the framers of the fundamental law to create a court of the United States at the capital where the judicial power provided by Article III should be lodged most appropriately and as far as practicable during the existence of the Government. Courts established for sections of the country pending the admission of such country as States imply the exercise of temporary functions which differentiate such tribunals from those whose powers imply continuity and permanence.

The proposition further ignores the right of Congress in the creation of courts under Article III to confer some of the judicial powers therein enumerated on certain of the inferior tribunals authorized to be established and other of the powers enumerated on certain other inferior tribunals authorized to be created by the same article. This court,for example, ‘"is constituted one of those inferior courts which Congress authorizes” under Article III (United States v. Klein, 13 Wall., 145); but the jurisdiction it has of contracts between the Government and the citizen from which appeals may be taken directly to the Supreme Court is a larger jurisdiction than that conferred by the act of March 3, 1887 (24 Stat. L., 505), on other courts of the United States, as by that act the district and circuit courts of the United States are given concurrent jurisdiction with this court, to a limited extent only, of suits against the United States.

Various acts not necessary to notice were superseded by the judiciary reorganization act of March 3,18G3 (12 Stat. L., 762), by which enactment the present Supremo Court of the District of Columbia was established. The judges thereof (of whom there were four), one of whom was denominated “ chief justice,” were to be appointed by the President, by and with the advice and consent of the Senate, and were to hold their offices “ during good behavior.” That is the phraseology of Section I of Article III. Their salaries were fixed, and subsequent statutes increased the number of judges and the amount of their compensation. Congressional, departmental, and executive construction since that time — a period of forty years — continued to fix the Supreme Court of the District of Columbia as a tribunal established under Article III and protected its judges by the Constitution. The rule that the contemporaneous construction of a statute by those charged with its execution should not be disregarded except for cogent reasons, and unless it be clear that such construction is erroneous, applies with even greater force in the construction of a provision of the Constitution so long and continuously acted upon by the two coordinate departments of the Government as the legislative and executive. The acquiescence of Congress and the Executive for a long time, by which the rights of parties have been determined and adjudged for many years, do not make constitutional that which is unconstitutional; but, to say the least, the ambiguity and doubt are too great for us to say that the interpretation which recognizes the Supreme Court of the District of Columbia as one of the inferior courts created by Article III of the Constitution is erroneous.

The District of Columbia had been subject to the Constitution while it was a part of the territory of those States which ceded it to the Federal Government. The Constitution attached to it in the beginning and continued to attach to the District after the cession. The terms of the Constitution were over the District irrevocably. The cession of the District relinquished the authority of the States, but did not take it out of the United States. “Neither party had ever consented to that construction of the cession. If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants it would have been void. If done after the District was created, it would have been equally void.” (Downes v. Bidwell, 182 U. S. R., 244, 261.)

•We can not believe that the relinquishment by the States to the United States of the 10 miles square for a permanent seat of government deprived Congress of the constitutional right to continue in the District some judicial tribunal which should have and exercise some part of the judicial power conferred by Article III.

W e are not unmindful that the constitutional question considered is perhaps not necessarily involved in the determination of the issues presented, and that like all other courts we might well ignore the determination of anything which seems to be merely academic. But the parties have presented the case upon the theory that the proposition considered is in issue and have invited its determination; and as the question of constitutional construction underlies the' whole case, we have viewed the proposition as not entirely in the abstract. Thus, we take the record as presented, inasmuch as without reference to our view of the matter the Supreme Court will deal with the issues on a-jSpeal in its own wajn

The recovery of the amount of salary claimed presents a more serious question, notwithstanding the views announced respecting the character and tenure of the judges affected. The temporaiy character of the legislation from year to year in providing varying compensation and reserving or implying on the face of the annual appropriations for the payment of salaries the right to change the amount for another and subsequent fiscal year, and the failure in the one piece of permanent legislation to provide a higher salary beyond the year than that payable to the retired judge at the time of his resignation, creates the real difficulty.

The act of June 1,186(5 (11 Stat. L., 14), fixed the compensation of the chief justice at $4,500 per annum and of the associate judges at $4,000 each from and after the passage of the act. Thereafter appropriations were made-in the legislative, executive, and judicial appropriation acts for salaries as fixed by the act of 1866 for each fiscal year up to and including the fiscal year ending June 30, 1891. These appropriations provided for another associate justice, created by the act of June 21, 1870 (16 Stat. L., 160), and yet another associate justice authorized to be appointed by the act of February 25, 1879 (20 Stat., 320).

The appropriation act for the fiscal year ending June 30, 1892 (26 Stat. L., 908, 947), contains the following provision: “For salary of the chief justice of the supreme court of the District of Columbia and the five associate justices, at the rate of five thousand dollars per annum each, thirty thousand dollars.” The enacting clause of this act provided that the various sums appropriated were “ in full compensation for the sendee” of that fiscal year; and section 4 of the same act provided “ that all acts or parts of acts inconsistent or in conflict with the provisions of this act are hereby repealed.” (Ib., 948.)

The appropriation act for the fiscal 3’ear ending June 30, 1893 (27 Stat. L.,183, 223), provided “for salaries of the chief justice of the Supreme Court of the District of Columbia and the five associate judges, twentjT-four thousand five hundred dollars.” The enacting clause of this statute provided that the sum so appropriated was ‘' in full compensation for the service ” of the fiscal year; and the last section of the act provided “ that all acts or parts of acts inconsistent or in conflict with the provisions of th is act are hereby repealed. ” (lb., 223.) The sum so appropriated was the amount which had been fixed by law for the salaries of these six judges until the enactment of the appropriation act for the fiscal year ending June 30,-

1892. Thus, during the fiscal year ending June 30, 1892, plaintiff’s intestate was paid a salary at the rate of $5,000 a year, as provided by the appropriation act for that fiscal year. For the next succeeding fiscal year, ending June 30, 1893, he. was paid a salary at the rate of $4,000 a year, as provided by the appropriation act for that year; and as he resigned from the bench on December 1 of the same fiscal year he was paid a salary at that rate until the time of his decease, pursuant to the provisions of section 714 of the Revised Statutes.

Under an act entitled “An act to establish a court of appeals for the District of Columbia,” approved February 9, 1893, the salaries of the justices of the Supreme Court of the District of Columbia were increased to $5,000 each, pajmble quarterly if necessaiy. (27 Stat. L., 136.)

No provision for an increased amount of salary for judges who had retired was made by the act of February 9, 1893.

The legislative, executive, and judicial act for the fiscal year ending-June 30,1894(27 Stat. D., 675, 714), appropriated “for salaries of the chief justice of the Supreme Court of the District of Columbia and the five associate judges, thirty thousand five hundred dollars. One-half of the foregoing amounts * * * shall be paid from the revenues of the District of Columbia.” The enacting clause of this act likewise provided that this appropriation was made ‘ ‘ in full compensation ” for the service of the fiscal year, and the last section repealed all acts or parts of acts inconsistent or in conflict with any of its provisions.

The appropriation act for the fiscal year ending June 30, 1895 (28 Stat. L., 162, 204), also contained the like enacting clause and repealing section, and appropriated as provided in the act of June 30,1894. Thereafter like appropriations were made annually in the same terms and amounts with like enacting clauses and repealing sections. The deficiency appropriation act of March 2, 1895 (28 Stat. L., 843, 851), contained a provision “to pay the chief justice and five associate justices of the Supreme Court of the District of Columbia the difference between the rate of compensation received by them and five thousand dollars per annum for the fiscal year eighteen hundred and ninety-three, four thousand one hundred and fifty-five dollars and forty-seven cents, or as much thereof as may be necessary.” Pursuant to this appropriation, plaintiff’s intestate was paid in April, 1895, the sum of $415.80 for that part of the fiscal year 1893 during which he held the commission of associate justice of the Supreme Court of the District of Columbia, and out of the remainder of the appropriation the chief justice and the other associate justices who held commissions during the whole of the year were paid sums which, when added to the salaries appropriated for them in the regular appropriation act for the year, amounted to $5,000 for the chief justice and $5,000 for each associate justice who was in office when claimant’s decedent resigned, and a proportionate amount was paid to his successor in office.

. The appropriations for the fiscal year ending June 30,1893— the year of Judge James’s retirement — did not fix a definite salary beyond that year. The annual sums appropriated were couched in language indicating that Congress meant to keep control of the amount of salaries for judges of the Supreme Court of the District of Columbia from year to year. The phraseology employed to accomplish this end may or may not have been intended to avoid the constitutional objection to the diminution of salary after being permanently increased. But there was no such permanent increase of salary during the incumbency of the deceased judge as to entitle him to claim the compensation throughout his retirement given bjr the appropriation act for the fiscal year ending June 30,1892. The fourteenth section of the act of February 9, 1893 (27 Stat. L., 436, ante), did not increase the salary which by law was payable at the time of the resignation, from which it follows that plaintiff is not entitled to recover. Accordingly, the petition must be dismissed.  