# United States v. Guthrie/Dissent McLean

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* Dissenting Opinion McLean
United States Supreme Court
58 U.S. 284
United States v. Guthrie
Mr. Justice McLEAN.
As this case involves important principles, and as I differ from the opinion of the court, I shall state my views.
The first inquiry that naturally arises in the case is, whether the President had power to make the removal complained of? This is not the object of the mandamus applied for, but it is incidental to it.
The 2d section of the 2d article of the constitution provides: 'That the President shall have power, by and with the advice and consent of the senate, to 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.'
In his argument, the attorney-general says: 'That the power of the President was discussed and settled by congress, in the commencement of the federal government; that the power of the President to remove all officers, who, by the constitution itself, were not declared to hold their offices during good behavior, was sustained by both houses; and that this power was recognized in the establishment of the department for foreign affairs.' In the 2d section of the act referred to it was provided: When the principal officer of the department should be removed, the chief clerk, during the vacancy, shall have custody of the records of the department. And a similar provision is contained in the other acts to establish the principal departments of the government. The heads of these departments constituted the cabinet of the President; and, as they were not only his advisers, but discharged their duties under his direction, there was a peculiar propriety that their offices should be held at the will of the executive.
There was great contrariety of opinion in congress on this power. With the experience we now have, in regard to its exercise, there is great doubt whether the most enlightened statesmen would not come to a different conclusion.
The attorney-general calls this a constitutional power. There is no such power given in the constitution. It is presumed to be in the President, from the power of appointment. This presumption, I think, is unwise and illogical. The reasoning is: the President and senate appoint to office; therefore, the President may remove from office. Now, the argument would be legitimate, if the power to remove were inferred to be the same that appoints.
It was supposed that the exercise of this power by the President, was necessary for the efficient discharge of executive duties. That to consult the senate in making removals, the same as in making appointments, would be too tardy for the correction of abuses. By a temporary appointment the public service is now provided for in case of death, and the same provision could be made where immediate removals are necessary. The senate, when called to fill the vacancy, would pass upon the demerits of the late incumbent.
This, I have never doubted, was the true construction of the constitution, and I am able to say it was the opinion of the late supreme court, with Marshall at its head.
The numbers of the Federalist though written before the constitution was adopted, have been considered as among its ablest expositors. Publius, in one of his numbers, says, 'It has been mentioned as one of the advantages to be expected from the co operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the chief magistrate, therefore, would not occasion so violent or so great a revolution in the offices of the government, as might be expected if he were the sole disposer of offices; where a man in any station has given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. These who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men, with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the body.'
In this discussion, in congress Mr. Madison, one of the ablest and most enlightened statesmen of which our country can boast, considered the removal from office was an executive power, and that congress could not restrict its exercise. He also considered the power of appointment an executive power, and that, had not the constitution so provided, the concurrent action of the senate could not have been required by act of congress in making appointments. If this were admitted, it would not give strength to the argument in favor of the exercise of the power by the President.
If the power to remove from office be inferred from the power to appoint, both the elements of the appointing power are necessarily included. The constitution has declared what shall be the executive power to appoint, and by consequence, the same power should be exercised in a removal. But this power of removal has been, perhaps, too long established and exercised to be now questioned. The voluntary action of the senate and the President, would be necessary to change the practice; and as this would require the relinquishment of a power by one of the parties, to be exercised in conjunction with the other, it can scarcely be expected.
The attorney-general says, that 'the construction of the constitution concurred in by the two houses of the first congress and approved by President Washington, resolved, among others, the following point:--
'That in a republican government, public offices are created for the benefit of the people; that the officer does not hold a private estate and property in the office, and when the officer is unfit, for any cause whatever, he ought to be displaced, and another appointed for the benefit of the people and their security; or if the office itself be found, upon experience, to be unnecessary, it should be abolished.' The soundness of the policy expressed in this resolution, must be admitted by every intelligent individual who understands and appreciates our system of government; and if the power had been exercised under the limitations expressed in the resolution, it would have had a most salutary effect on office holders, and on the public. For the truth of this a reference may be made to the history of the earlier administrations.
But this power of removal from office by the President, was neither exercised nor supposed to apply until recently, to the judicial office.
In the establishment of the territories, the 'Northwestern,' 'Indiana,' 'Illinois,' 'Mississippi,' 'Michigan,' and 'Wisconsin,' it was provided that the judges should hold their offices during good behavior. The governor, secretary, and the other officers of these territories were appointed, under the law, for a term of years, 'unless sooner removed.'
By the act of congress of August, 1789, to provide for the government of these territories, certain changes were made in the ordinance of 1787, to adapt it to the constitution of the United States. It was provided that the President shall nominate and by and with the advice and consent of the senate, shall appoint, all officers which by the said ordinance were to have been appointed by the United States in congress assembled; and all officers so appointed shall be commissioned by him; and all cases where the United States, 'in congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal.'
In the territories of 'New Orleans,' 'Florida,' 'Iowa,' 'Oregon,' 'Washington,' 'Utah,' 'New Mexico,' 'Minnesota,' 'Nebraska,' and 'Kansas,' the judges were appointed for four years; and the governor and all other officers of the territories were appointed for a term of years, 'unless sooner removed.'
In the 'Missouri' and 'Arkansas' territories only, were the judges appointed for four years, 'if not sooner removed.'
In the constitution, no express provision was made for the government of territories. This, no doubt, was deemed unneccessary, as the ordinance of 1787, which was passed before the constitution was adopted, provided for the government of all the territory then claimed by the United States.
Territorial judges are said not to be appointed under the constitution, but by virtue of an act of congress. In the American Insurance Company v. Canter, 1 Pet. 546 Chief Justice Marshall said: 'The judges of the superior courts of Florida held their offices for four years. These courts, then, are not constitutional courts, in which the judicial power, conferred by the constitution on the general government, can be deposited.' But all the judges of the territories, from 1787 to 1804, were appointed for good behavior, so that the term of service was not a safe criterion by which to determine the character of territorial judges.
It is admitted that the judges of the supreme court cannot be appointed for a less period than good behavior; and the same may be said of the district judges.
The power under which the territorial governments is organized, is a matter of some controversy. In the case above cited, Chief Justice Marshall said: 'Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.' This is the prevailing view of those who have examined the subject. But the chief justice proceeds: 'Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. These facts exist in every territorial government, but it does not show the source of the power, unless by the doctrine of necessity, which does not seem to be a legitimate foundation for a civil government under our system. The chief justice further says: 'The right to govern may be the inevitable consequence of the right to acquire territory.' There is no special power given in the constitution to acquire territory. This does not seem to have been within the view of the framers of the government; and the right was much contested in the acquisition of Louisiana, when the power was first exercised.
It seems to me that the power to govern a territory is a necessary consequence of the power given 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.' No one doubts the power of congress to sell the public lands beyond the limits of any State; and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, but it necessarily results from the power to sell the public lands.
It is difficult to say that any power can be exercised by congress, which is not derived from the constitution. Without that instrument, it is as powerless as any other association of men. The laws of the Union protect our commerce wherever the flag of the country may float, and, in some instances, our own citizens may be made responsible for acts done in foreign seas and countries; but this is the exercise of powers given by the constitution. Under the legislative power of congress, territorial governments are organized, and their functionaries are appointed by the President and senate. Their laws emanate from congress, or are passed by a territorial legislature, subject to the approval of congress. The government of the territory is a government of the United States; and although its courts do not exercise the judicial power to the same extent as the other courts of the United States, still, they are courts of the United States, and exercise such judicial powers as are conferred on them by law.
It is argued that, as the President is bound to see the laws faithfully executed, the power to remove unfaithful or incompetent officers is necessary. This may be admitted to be a legitimate argument, as commonly applied to executive officers. My own view is, that the power to see that the laws are faithfully executed, applies chiefly to the giving effect to the decisions of the courts when resisted by physical force. But however strongly this may refer to the political officers of the government, how can it apply to the judicial office?
In the nature of his office, the President must superintend the executive department of the government. But the judiciary constitutes a co ordinate branch of the government, over which the President has no superintendence, and can exercise no control. So far from this department being subject to the executive, it may be called to pass on the legality of his acts. The President, like all the other officers of the government, is subject to the law, and cannot violate it with impunity. He is responsible for the infraction of private rights, and before a territorial court, the same as before the other courts of the Union. In no just and proper sense can the President be required to see that the judicial power shall be carried out, except as controlling the physical power of the Union.
The effects of the control of the judicial, by the executive power, are seen in the history of England, during the reign of the Stuarts. The most insupportable tyranny and corruption were realized under this paramount power of the executive government. It has always been the corrupting power of all free government. This, in a great degree, arises from the extent of its powers and patronage. And in the formation of our government great care was taken to place the judicial power on an independent basis. Being without patronage, and discharging the most onerous and delicate duties, nothing but a high and an impartial discharge of its functions can sustain it.
Whenever any portion of the judicial power shall become subject to the executive, there will be an end of its independence and purity. It will become the register of executive decrees and of a party policy. What could create a deeper degradation than to see any branch of the judiciary, which stands between the executive power and the rights of the citizen, become the mere instrument of that power.
There can be little or no difficulty in coming to a correct conclusion on this important question, by an examination of the acts of congress creating the tenure of the judicial office in the territories. In the seven territories first enumerated, the judges were appointed during good behavior; the other officers were appointed for a term of years, 'if not sooner removed.' In ten territories the law authorized the appointment of judges for the term of four years, and the other officers, for a term of years, 'if not sooner removed.' Whether in the above acts the judicial tenure was fixed for good behavior or a term of years, no one can fail to see the difference in regard to the tenure of the judges, and of the other officers. The judges were appointed absolutely for good behavior, or a term of years, whilst the other officers were appointed for a term of years, 'unless sooner removed.' By the terms of the appointment the political officers, such as the governor, secretary, marshal, &c., were removable, but the judges were not. In this respect these appointments stand in contract, and show the unmistakable intention of congress.
It is true that for the territories of Missouri, and Arkansas, the judges were appointed for the term of four years, 'unless sooner removed.' This language was first used for the Missouri territory, and as the Arkansas territory was taken from Missouri, the same language was incorporated into the organic law of Arkansas. These two territories out of the nineteen above named, would imply the power to remove the judges. But whether this language was the result of accident or design, it cannot authorize the construction of the law establishing the other territories, among which the territory of Minnesota is included, as though the power of removal applied to them. The words used will not allow this construction, especially when taken in connection with the words in the same acts in relation to the appointment of officers in the territories, other than the judges.
This view is greatly strengthened by the usage of the government. There have been, it is believed, but two judges of territories removed, and those recently, since the organization of the Union. And we may rely on the early practice of the government, to show its true theory, in the exercise of federal powers. The great principles of our system were then understood and adhered to, and our safest axioms are found in this part of our history.
It is said the act of 1789, which modified the ordinance of 1787, so as to adapt it to the constitution, gave the same power to the President, in regard to appointments and removals which, under the confederation, was exercised by congress. This is true, but it can apply only to those officers which, under the confederation, were removable by congress. Under the ordinance, as above stated, the judges were appointed during good behavior, while all the other officers were appointed for a term of years, 'unless sooner remoed.'
If congress have the power to create the territorial courts, of which no one doubts, it has the power to fix the tenure of office. This being done, the President has no more power to remove a territorial judge, than he has to repeal a law. The duties of a judge of a territory are discharged as independently, and as free from executive control, as are the duties of a judge of this court. This territorial judicial power was intended to be a check upon the executive power. And it would be inconsistent with the principles of our government, for the judges to be subject to removal by the executive.
This is a great question, although it can only effect, as now maintained, the territorial bench. And I regret that, from the want of jurisdiction, in the opinion of my brethren, they are not required to express an opinion as to the power asserted.
The other question in the case is, whether the remedy by mandamus is appropriate and legal. In the case of Kendall v. the United States, 12 Pet. 608, which, in my judgment, is not distinguishable from this, the question was settled.
In that case, under a special act of congress, a matter of controversy between William B. Stokes et al. and the postmaster-general, was referred to a commissioner, to examine the account and report any balance he might find due to the relators, from the post-office department; and the postmaster-general was required to pay such balance, by entering a credit on the books of the department.
The duties of the commissioner were performed, and he reported in favor of the relators, $161.563.89, all of which sum was credited by the postmaster-general, except the sum of $39,462.43, which he refused to place to the credit of the relators, on teh books of the department. The petitioners prayed the circuit court of the District of Columbia to award a mandamus, directed to the postmaster-general, commanding him to enter the credit.
A peremptory mandamus was issued by the circuit court, which decision was brought before this court by a writ of error. All the members of this court held, that it was a proper case for mandamus, as the duty imposed was ministerial and positive, there being no other adequate remedy. Three only of the judges dissented, on the ground that the circuit court of the District of Columbia had not power to issue the writ; but the other six judges held, that it was not only a case for a mandamus, but that the circuit court had the power to issue it.
The credit was required to be entered on the books of the auditor of the post-office department, whose duties were performed under the treasury department. But as the accounts were examined in the post-office department, the credit was required to be entered by the postmaster-general on the books of the auditor. It was known that an order of the postmaster-general, requiring the credit to be entered, would be obeyed by the auditor.
In the case before us, the salary of the judge was fixed by law, and payable at the treasury department, where application for payment has been frequently made by the relator, and refused by the secretary of the treasury. It is shown that an appropriation of the salary was made by act of congress, and in such a case the payment is a ministerial act, and the secretary has no discretion to withhold it. This would not be controverted, it is supposed, if the judge, who demanded payment, had remained in office. If, in such case, the secretary may, at his discretion, refuse to pay the salaries of officers, he might suspend the action of the government. The duty to pay is enjoined on the secretary by law; it is a ministerial duty, in which he can exercise no discretion, the appropriation having been made by law.
By the act of 2d September, 1789, the secretary of the treasury is required, to 'grant all warrants for moneys to be issued from the treasury in pursuance of appropriations by law.' And, in the same act, the treasurer is required to 'receive and keep the moneys of the United States, and to disburse the same upon warrants drawn by the secretary of the treasury, countersigned by the comptroller, recorded by the register, and not otherwise.' These are all ministerial duties, performed under the secretary of the treasury. The money having been appropriated by law for the salary of the judge, the secretary was bound to pay it.
The justification for the non-payment by the secretary is, that the relator had been removed from office by the President, and that, by the President and senate, his successor had been appointed, who, having entered upon the discharge of his duties, was entitled to the salary, and to whom it had been paid.
If the act of removal by the President was unauthorized, this can afford no justification for withholding the salary. It is admitted that, by mandamus, no act of an executive officer can be examined, which invades the exercise of his judgment or discretion. The payment of the salary, being a mere ministerial duty, positively enjoined by law, is subject to no such objection. But, may not the objection apply to the removal of the judge? If such a power were within the exercise of the discretion of the President, it would be conclusive. But if the act be without authority and against law, it is void; and such was the act complained of. The President could exercise no discretion on the subject; the removal was beyond his power, and the act being void, it cannot be considered as the exercise of an executive discretion. The judgment and discretion which may not be interfered with, by mandamus, must be in the discharge of executive duties. These do not come within the judicial power. But an unlawful, and consequently void act, by the President, by which an injury is done to an individual, cannot be covered by executive discretion. And in this case the question is incidental to the object of the mandamus, which is to require the secretary to perform a ministerial duty. The removal of the judge is set up by the secretary as a reason why the relator has not been paid; and if the act of removal be void, it fails to justify the refusal to pay.
The case of Decatur v. Paulding, 14 Pet. 513, is altogether different from the one under consideration. In the opinion of the court in that case, the chief justice showed that it was materially distinguishable from Kendall's case.
It would be difficult to imagine a clearer case for mandamus than the one before us, in my judgment; and I think it should be issued. If the salary has been paid to the new judge, it has been illegally paid, and that is no reason why it should not be paid to the rightful claimant.
We have nothing to do with the conduct of the judge, nor had the President. The judge was liable to be impeached and removed from office, in that form.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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