(concurring):
Judge McGowan sets forth persuasively the historical facts translatable into an appeal for maintenance of the prosecutorial status quo in Section 22-1107 disorderly conduct cases. For me, however, the considerations delineated in Judge Tamm’s opinion, in which I concur, provide the edge in the resolution of the close question which was certified to us. The District cannot, in my view, assume the litigatory helm in such cases without colliding head-on with our holdings in Strothers1 *and Moody,2 which I am unable to comfortably distinguish, and impinging on the judicial philosophy underlying them. If, as an alternative measure, those decisions are to be overruled, not only must that step be taken by the *1343court en banc3 but also for sound supporting reasons.
Unfolded before us is a situation strikingly similar in its material aspects to those presented in Strothers and Moody. Section 22-1107, except as to its current penalty, is the product of an 1898 amendment 4 fusing Sections 5 and 6 of an 1892 statute,5 self-described as “[a]n act for the preservation of the public peace and the protection of property within the District of Columbia.” The act contained nineteen sections, the first seventeen of which defined offenses in no instance made punishable by imprisonment. The eighteenth section, now Section 22-109 of the Code, specified that all prosecutions under the act should be conducted by and for the District. Like the problem here, those addressed in Strothers and Moody were generated by subsequent increases in the maximum punishment, from a fine alone to both fine and imprisonment, for activities originally outlawed by the 1892 act.
Section 7 of the act, forbidding solicitation for prostitution, had been expressly repealed when it was displaced by a 1935 statute,6 now Section 22-2701 of the Code, which was involved in Strothers. On the other hand, Moody treated Section 1 of the act, now Section 22-3112 of the Code, proscribing the destruction of private property, which has been amended in 1906,7 inter alia, to alter the penalty. Each case was inaugurated by the District and conducted by its Corporation Counsel, apparently because Section 22-109 had been left untouched. We held, however, that in consequence of Section 23-101,8 enacted in 1901,9 each charge must be prosecuted, if at all, by the United States Attorney. These decisions lead me to the same conclusion here.
By Section 23-101,10 Congress supplied the standard by which, absent a different specification, the District’s jurisdiction over violations of local criminal laws is to be ascertained. Congress said that the District may engage in such litigation “where the maximum punishment is a fine only, or imprisonment not exceeding one year,” and that “[a] 11 other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.” 11 This, we have held, means that the District may proceed where either a fine or a term of imprisonment is authorized, but not where both may be inflicted.12 And our decisions have consistently ef*1344fectuated the proposition that where Congress has not spoken antithetically, the prescribed maximum punishment at the time of prosecution determines who shall prosecute.13
Congress has frequently made express provision for prosecution by the District even where the penalty for a particular offense embraces both a fine and incarceration,14 thereby creating exceptions to the rule enunciated in Section 23-101.15 But Strothers and Moody reflect a sound judicial policy dictating adherence to that rule where a claimed exemption is not fairly evident.16 When Congress takes pains to articulate ever so clearly a general jurisdictional definition, the justification for judicial deviation therefrom must embrace importantly a deep-seated confidence that the legislative purpose will not be frustrated. I do not feel at liberty to disregard the plain mandate of Section 23-101 on the basis of indications of a contrary congressional aim which, as our dissenting colleague at the outset aptly characterizes them, are “admittedly murky.” Nor can I believe that Congress, which has been scrupulous in explicating where the prosecutorial authority in misdemeanor cases resides, and in simplifying and expediting controversies in that regard,17 intended that the result should in any case abide a formidable and time-consuming judicial investigation into a ramified legislative history.
This court has always endeavored to honor the congressional will, and our decisions reflect the best we can offer. Judges are able to do only so much when legislative intent is obscure, and perhaps all too frequently that much might not be enough. When it is not, the matter is ripe for the chambers of Congress, from whence the final answer must come. To insure for the people of this community the prosecutorial procedures which Congress contemplated they should have, that is where I think this general problem should go.
. United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955).
. District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962).
. Insurance Agents’ Int’l Union v. NLRB, 104 U.S.App.D.C. 218, 260 F.2d 736 (1958), aff’d 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); Polisnik v. United States, 104 U.S.App.D.C. 136, 137, 259 F.2d 951, 952 (1958); Mallory v. United States, 104 U.S.App.D.C. 71, 259 F.2d 801 (1958); Davis v. Peerless Ins. Co., 103 U.S.App.D.C. 125, 127, 255 F.2d 534, 536 (1958); Thompson v. Thompson, 100 U.S.App.D.C. 285, 286, 244 F.2d 374, 375 (1957). See also District of Columbia v. Washington Post Co., 98 U.S.App.D.C. 304, 235 F.2d 531, cert. denied 352 U.S. 912, 77 S.Ct. 147, 1 L.Ed.2d 118 (1956).
. 30 Stat. 723 (1898).
. 27 Stat. 322 (1892).
. 49 Stat. 651 (1935).
. 34 Stat. 126 (1906).
. Quoted infra note 10.
. 31 Stat. 1340 (1901).
. “Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the corporation counsel or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.” D.C.Code § 23-101 (1967 ed.).
. Ibid.
. District of Columbia v. Simpson, 40 App.D.C. 498 (1913). See also the cases cited infra note 13.
. District of Columbia v. Moody, supra note 2; United States v. Strothers, supra note 1; District of Columbia v. Simpson, supra note 12. See also Smith v. District of Columbia, No. 20,279 (D.C. Cir. July 27, 1967) at 4; Tate v. United States, 123 U.S.App.D.C. 261, 265 n. 4, 359 F.2d 245, 249 n. 4 (1966); Nation v. District of Columbia, 34 App.D.C. 453, 457-458, 26 L.R.A.,N.S., 996 (1910); Morton v. Welch, 162 F.2d 840, 841-842 (4th Cir.), cert. denied 332 U.S. 779, 68 S.Ct. 44, 92 L.Ed. 363 (1947).
. See the appendix to Judge Tamm’s opinion, supra.
. See Shelton v. United States, 83 U.S.App.D.C. 32, 33-35, 165 F.2d 241, 242-244 (1947); Persham v. United States, 70 App.D.C. 116, 104 F.2d 249 (1939); District of Columbia v. Moyer, 68 App.D.C. 98, 93 F.2d 527 (1937).
. The thrust of Section 22-109, providing for prosecution by the District of violations of the 1892 act, was blunted by the repeal in Strothers and the amendment in Moody, logically posing the question whether as an indicium of legislative intent, it overrode, alone or with other factors present, the positive expression in Section 23-101. Both eases in effect responded to that question in the negative. That the distinction between repeal and amendment was not regarded as significant gains strength from the fact that two members of the Strothers panel, including Judge Bastían who authored the Strothers opinion, were members of the Moody panel.
. D.C.Code § 23-102 (1967 ed.) provides a simple expedient for speedy resolution of questions arising in misdemeanor litigation as to whether the prosecution should be conducted by the Corporation Counsel or by the United States Attorney. The trial judge may immediately certify the question to us. We are required to “hear and determine the question in a summary way” and our decision is final.