#### ROBERT W. MEDKIRK v. THE UNITED STATES.

[No. 21162.

Decided March 29, 1909.]

*On the Proofs.*

The claimant, an honorably discharged veteran of the civil war, is a clerk in the pension agency at Indianapolis. Without delinquency or misconduct on his part, but in consequence of the reduction of the force of the office, he is removed, but is reinstated in the civil service and becomes a watchman in the Treasury Department on a smaller salary.

I.Where a reduction of clerical force is required by law removals may be made in a public office without the filing of charges against the officer.

II.The *Act 15th August, 1876*(19 Stat. L., p. 169), provided that in making reductions of force in executive departments the head of a department should retain those persons who being equally qualified had been honorably discharged from the military or naval service. The statute merely gives a preference to such persons, which is to be exercised only as between those “ *equally qualified.”*

III.In legal contemplation the head of a department is an arm of the Executive; and the Pension Office is a branch of the Interior Department; and an order sent out in the regular course of business from the appropriate executive department is the legal equivalent of the President’s own order. Therefore, when the head of the Pension Office exercised discretion as to capacity between clerks in his office the exercise of his' discretion can not be reviewed in the courts.

*The*Reporters’ statement of .the case:

The following are the facts of the case as found by the court:

I. Petitioner is a citizen of the United States, residing at this time at Washington, D. C., and is the sole owner of the claim sued on, no part thereof having been assigned or transferred to anyone.

II. On the 1st day of November, 1861, petitioner enlisted and* was duly mustered into the military service of the United States, serving therein until January 1, 1864, when he was honorably discharged from that service by reason of his reenlistment in the same service as a veteran on the 23d *470day of December, 1863; and was honorably discharged therefrom June 27, 1865.

III. By section 7 of the act of January 16, 1883, entitled “An act to regulate and improve the civil service of the United States,” it was enacted that after the expiration of six months from the passage of the act, no officer or clerk should be appointed, and no person.should be employed to enter or be promoted in either of the classes of public service then existing, or that might be arranged under the rules to be provided pursuant to that act, until he had passed an examination, or had been shown to be specially exempted from such examination in conformity with the act; and it Ivas further enacted in that section that nothing in the act contained should be construed to take from those honorably discharged from the military or naval service of 'the United States, any preference conferred by section 1754 of the Revised Statutes, or take from the President any authority, not inconsistent with that act, conferred by section 1753 of said statutes.

IY. On the 15th day of July, 1895, Grover Cleveland, President of the United States, ordered the Secretary of the Department of the Interior to amend the classification of that department so as to include among the employees classified thereunder the officers, clerks, and other employees of the United States pension agencies. Thereupon, July 20, 1895, the then Secretary of the Department of the Interior, acting by virtue of the order of the President aforesaid, made an order that the officers, clerks, and other employees of the United States pension agencies should be .arranged in the classification of the department as required by the direction of the President, and thereafter such classification remained in full force and effect.

The following is an “ extract copy ” of the official register of the United States pension agency service, Department of the Interior, containing a classified list of clerks employed in each United States pension agency;

*471

V. Petitioner was appointed as a clerk in tbe United States pension agency at Indianapolis, Ind., December 6, 1885, and be performed tbe duties of that clerkship until July 1, 1895, when he was appointed to a clerkship in the same agency at a compensation of $1,000 per annum, and he discharged the duties of that clerkship until his services were dispensed with June 30, 1898, in the manner hereinafter stated, he being then and afterwards able and equally qualified with others to discharge the duties of that clerkship.

An executive order dated July 27, 1897, contains the following :

“ No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.”

No written charges against claimant were filed, but he was removed without charges or notice or opportunity to make defense.

VI. The act of August 15, 1876, making appropriations for, the legislative, executive, and judicial expenses of the Government contains, in section 3, the following proviso:

“ That in making any reduction of force in any of the executive departments, the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers and sailors.” (19 Stat., 169.)

*472On the 20th day of June, 1898, the following order was issued to the petitioner:

“ DEPARTMENT OP THE INTERIOR,

“ Bureau op Pensions,

“ *Washington, D.*(7., *June 20,1898.*

“ Mr. Robert W. Medkirk,

“ *Cleric, U. S. Pension Agency, Indianapolis, Ind.*

“ Sir : Owing to a reduction in the amount available for clerk hire at the pension agencies for the fiscal year 1899, your services as a clerk at the pension agency, Indianapolis, Ind., will be dispensed with on and after June 30, 1898, until which-date you are hereby-granted leave of absence.

“ Yery respectfully,

“ H. Clay Evans,

“ Commissioner.”

The services of petitioner were thus dispensed with, and he was separated from the clerkship aforesaid, to take effect June 30, 1898, although at that time and after there were retained at said pension, agency, on the same class of work as that which had been done by the petitioner, and at the same rate of compensation as had been paid him, the following-named persons, who were not honorably discharged Union soldiers or sailors: George Yfard, R. N. Bennett, David Murr, W. P. Duffy, P. J. Fallon, Pliram Norris, Henry Kaiser, John Sherman, Charles G. Aichele, L. W. Mansfield, Joseph Parnin, and Walter Johnson.

“ Department op the Interior,

“ United States Pension Agency,

*'•'‘Indianapolis, Ind., June 19, 1901.*

“ Hon. H. Clay Evans,

*“Commissioner of Pensions, Washington, D. C.*

“ Sir : In reply to your telegram I send copy of efficiency record of Robert W. Medkirk during last six months of his service as clerk in Indianapolis pension agency, ending June 30, 1898:

Name. Punctuality. Industry. Habits. Ability. Aptitude. Robert W. Medkirk. Good . Pair . Poor.... Fair.... Fair.

“ Very truly,

“ J. D. Leighty,

“ *United States Pension AgentP*

*473“ Department oe the Interior,

“ Washington, *D.*0., *June 1901.*

*“*Be it remembered that J. D. Leighty, who has signed " the foregoing statement, was at the date of signing thereof United States pension agent, at Indianapolis, Ind., and that to his attestations as such full faith and credit are and ought to be given.

“ In testimony whereof I have hereunto subscribed my name and caused the seal of the Department of the Interior to be affixed this 22d day of June, 1901.

“ [seal.] F. L. Campbell,

*“Acting Secretary of the*Interior.”

VII. Petitioner objected to such separation and earnestly endeavored to obtain reinstatement, but was not successful until in the month of December, 1900. The following is a copy of the request made by the then Commissioner of Pensions to the Secretary of the Interior for the reinstatement of petitioner:

“ Department oe the Interior,

“ Bureau oe Pensions,

“ Washington, *December 5,1900.*

*“*The Secretary of the Interior.

“ Sir : I have to request that the Civil Service Commission be called upon to certify to the department for reinstatement to the position of clerk at a salary of $1,000 in the U. S. pension agency, Indpl’s, Ind., the name of Mr. Robert W. Medkirk, a legal resident of the State of Indiana, who, without delinquency or misconduct on his part, was separated by removal, reduction in force, on Juné 30, 1898, from the position of clerk, at a salary of $1,000, in the U. S. pension agency, Indpl’s, Ind.”

(This reinstatement for purpose of transfer to Treas’y Dept.)

*“*Military or naval record: Regiment, Seventy-second Ohio Vol. Inf., Company E. Pensioned by certificate 376990. Date of honorable discharge, June 27, 1865..

“ Very respectfully,

“(Signed) H. Clay Evans, *Oommissioner.”*

Pursuant to the above request, the United States Civil Service Commission certified petitioner to the Secretary of *474the Interior for reinstatement, in a certificate of which the following is a copy:

“ United States Civil Service Commission,"

“ *Washington, D.*0., *December 8, 1900.*

*“*To the Secretary oe the Interior.

“ Sir : In response to your request, dated December 5,1900, for the necessary certificate for the reinstatement of Robert W. Medkirk, of Ind., as clerk at $1,000 per annum in the classified service of the Indianapolis pension agency, Interior Department, certification is hereby made that he may be so reinstated, it appearing that he was separated by removal without delinquency or misconduct, from the position of clerk at $1,000 per annum in the classified service of the Indianapolis pension agency, Interior Department, on the 30th day of June, 1898, and that he served in the military service of the United States during the late war of the rebellion, and was honorably discharged therefrom.

“ Very respectfully,

“ John T. Doyle, Secretary.”

Thereupon petitioner was reinstated in the service and became a watchman in the Treasury Department, at a compensation of $720 per annum, a position which he held until the 1st day of July, 1901, when he was promoted to the position of a clerk, at- a compensation of $1,000 per annum, the same compensation he was receiving when he was separated from the service on the 30th of June, 1898, and was promoted on the 1st day of July, 1903, to a clerkship therein, at a compensation of $1,200 per annum, which position he held at the date of the filing of the amended petition, September 20, 1906.

VIII. Petitioner, from the time he was so separated from the government service, June 30, 1898, up to the filing of the amended petition, has not been permitted to discharge the duties of his clerkship in the United States pension agency at Indianapolis, Ind., although he has at all times since such separation stood willing and ready to discharge the duties thereof, and is now ready and willing to discharge such duties.

IX. Had petitioner been allowed to serve as a clerk in the pension agency aforesaid from June 30,1898, to July 1, 1901, the date on which he was promoted to the position of a clerk, *475at the compensation of $1,000 per annum, be would have earned $3,000. Petitioner received from the United States as compensation while acting as watchman during the period in Finding VII, described, to July 1, 1901, the total sum of $456.

X. For the fiscal year ending June 30, 1899, the Commissioner of Pensions was obliged to make a reduction in the number of clerks theretofore employed at the pension agency at Indianapolis, Ind., owing to a reduction in the amount of the appropriation “ available for clerk hire at the pension agencies for ” that year as compared with preceding years, and claimant’s “ dismissal was unavoidable;” also letter of Commissioner of Pensions, July 5, 1898, to Hon. John C. New, on file herein, which reads as follows:

“ BUREAU OE PENSIONS,

“ *Washington, D. C., July 6,1898.*

*“*Hon. John C. New,

*“Indianapolis, Ind.*

“ Mr Dear Sir : I have your letter of the 24th ultimo in reference to Mr. Robert W. Medkirk, recently an employee of the pension agency of your city, and in response have the honor to state that his dismissal was unavoidable owing to the reduction of the appropriation for the ensuing fiscal year.

“ Very respectfully,

“ H. Clay Evans, Commissioner.”

XI. The order of the Commissioner of Pensions of June 20, 1898, whereby the services of claimant as clerk at the pension agency at Indianapolis, Ind., were dispensed with on and after June 30, 1898, was not set aside by him, by the Secretary of the Interior, nor by the President.

XII. The claimant was never reinstated in nor restored to the position from which he was removed by the aforesaid order of the Commissioner of Pensions, but was reinstated in the classified service in order that he might be transferred to the Treasury Department.

*Mr. L. T. Miehener*for the claimant. *Dudley & Miehener*were on the brief:

1. It was the plain and positive duty of the “ head ” of the Interior Department, in case a reduction in the force at Indianapolis was necessary, to remove or “ separate ” one *476who bad not been honorably discharged from the military service of the Union, if such one was in that service. The evidence shows that there were at least twelve clerks there who had not been in the military service of the Union. Those twelve were doing the same work and receiving the same compensation as petitioner; they were in the same class. One of those civilians should have been removed'or separated, for thus saith the statute. But the statute was plainly disobeyed by the Commissioner of Pensions. That disobedience of the statute did not forfeit or destroy the rights which lawfully belonged to the petitioner. Pie objected to that removal or separation, and earnestly sought reinstatement to his lawful rights. The result was that in December, 1900, after having been out of the government service two years and a half, he was reinstated to his former position, but was transferred immediately to the Treasury Department as a watchman, at a salary of $720 per annum.

Did the unlawful act of petitioner’s superior officer take from him the right to perform the duties of his clerkship and receive its compensation? If this question is to be answered in the affirmative, the statutes of the United States on the subject are nullities.

2. The Commissioner had no such power. That power, in a case warranting it, belongs only to “ the head of such department.” (Sec. 3,19 Stat., 169.)

The head of the department failed to do these things:

*(a)*He did not make a reduction of the force in the Indianapolis agency.

(5) Pie did not retain the petitioner, a person “equally qualified,” who had been “ honorably discharged,” etc.

The Commissioner of Pensions acted and he alone. The Secretary did not act.

In the *Wickersham case*(201 U. S., 290) claimant was unlawfully suspended by the surveyor-general and, after a good deal of controversy, the Commissioner of the General Land Office made that suspension permanent, thus removing him from the service, but the Supreme Court held that all this was unlawful, and affirmed the judgment of this court. The Secretary did not act in that case.

*4773. In *Lellman's case*(37 C. Cls., 128) the claimant was given a judgment for salary because he had been unjustly suspended in the exercise of his official duties, such suspension having been annulled thereafter.

In *Wickersham's ease*(201 U. S., 390) this court and the Supreme Court held that one who had been unlawfully, removed from the government service, but remained ready and willing to discharge the duties of his place, could not be deprived of the compensation legally belonging to one holding it.

In the *Perláns case*(20 C. Cls., 438, *affirmed*by the Supreme Court, 116 U. S., 483) it was held that a cadet who was unlawfully removed by the head of the department could sue for and recover his pay.

Similar rulings were made in *Leopold's case*(18 C. Cls., 546) and in *Redgrave's case*(20 C. Cls., 226, *affirmed*in 116 U. S., 474).

These cases apply to clerks and officers of the Government, the rules that obtain in cases of municipal, county, and state employees and officials. (1 Dill on Munic. Corp. (4th ed.), sec. 235; Throop on Public Officers, sec. 509-516.)

At any rate, the decisions of'this court, affirmed by the Supreme Court, have established the rule that one who has been unlawfully suspended or removed from office is entitled to the compensation which he would have earned had he been permitted to occupy it.

The essential thing is that the officer was unlawfully suspended or removed. When that fact is established, the law gives to him the salary which he would have earned and received had he been allowed to discharge the duties of the office during the time between his suspension or removal and his reinstatement, in whatever form the latter may be. The record shows that petitioner’s separation from the service was in flat violation of the statute, and “ without delinquency or misconduct on his part.”

*Mr. A. G. Campbell*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

*478Howry, J.,

delivered the opinion of the court:

Plaintiff was dismissed from the civil service of the Government whilst engaged in the performance of clerical duties at the pension agency in Indianapolis, Ind. Soon after his discharge the Civil Service Commission certified to the Secretary of the Interior (in response to the request of that official for the certificate necessary for reinstatement of plaintiff) that it appeared that he had been separated by removal without delinquency or misconduct from his position as clerk in the classified service, and that he served in the military service and was honorably discharged therefrom. Thereupon plaintiff was reinstated in the classified service on the certificate of the Civil Service Commission by becoming a watchman in another department at a less compensation. He was subsequently promoted to the position of a clerk at the same compensation he was receiving when he was separated from the service by order of the Commissioner of Pensions. The action is brought to recover the sum of $2,544, as the difference between the amount he would have received had he continued at the pension agency and the amount he did receive by virtue of his services elsewhere, upon the allegation that his removal in the first instance was unlawful.

Plaintiff rests his right to recover upon the disregard of an executive order which prohibits removal from any position subject to competitive examination except for just cause and upon written charges filed with the appointing officers and of which the accused must have full notice, with an opportunity to make defense; and, next, upon the alleged violation of the statute which gives preference, for appointments to civil offices to those honorably discharged from the military or naval service. Counsel for plaintiff present what they term the dilemma of the Government involved in the proposition that, if it be held that the removal of the claimant was for inefficiency, then the proceedings which accomplished his removal were in violation of the executive order, but if he was removed because of a reduction in force made necessary by the diminution of the amount of public moneys applicable, then the statute which gives preference to clerks or employees of military record was violated.

*479The executive order, set forth in the findings, which prohibits removals unless written charges are filed, is a general order. The order which discontinued plaintiff’s services was special in character and superseded the general order for the purposes of this case if the special order was an executive act or the equivalent of executive authority. That it was tantamount to a special executive order plaintiff denies, because it is argued on the authority of *Wicker sham’s case*(201 U. S., 390, affirming this court, 39 C. Cls. R., 558) that charges were necessary, and that a surveyor-general there had based the suspension of the employee on the ground that his services were not needed for lack ofo work, and that it appeared there that the attempted suspension was without authority. This court held the suspension to be wrongful, and the employee was allowed the compensation given by law to the incumbent for the period of absence under the unauthorized suspension. The suspension of Wickersham, however, was arbitrary. Its plain meaning was to substitute some other employee for the suspended employee. The findings disclosed that within two weeks the same subordinate dismissing that plaintiff reported an accumulation of work, with a request for the employment of an additional clerical force in place of the suspended employee. The Commissioner of the General Land Office had the dismissed employee reinstated. The suspension being clearly wrongful, it was held on the authority of *Lellmann’s case*(37 C. Cls. R., 128) that the suspended employee was entitled to recover.

Neither of those cases presents the question in issue here. This plaintiff was not discharged merely because of inefficiency. True, his efficiency, as compared with some one else in the employ of the pension agent, was involved. But his discontinuance from the service was because of the requirement of the law to reduce the force and the consequent necessity for competent authority to exercise the necessary discretion to determine who among all the employees was the least efficient. By the appropriation act providing for clerk hire at pension agencies for the .fiscal year ending June 30, 1898 (29 Stat., 479), it was provided that the salaries of all clerks were subject to the approval of the Secretary of the Interior. By the act making appropriations for the fiscal *480year ending June 30, 1890 (30 Stat., 276), the amount appropriated was less, accompanied with a former provision that the amount of clerk hire for each agency should be apportioned in proportion to the number of pensioners paid at each agency, and the salaries ,as to all clerks was likewise subject to approval. It will thus be seen that if a reduction of force was provided for by law there was a necessity to make removals without the filing of written charges and without notice.

By an act approved August 15,1876 (19 Stat., 169), it was provided that in making any reductions of force in the executive departments the head of such department .should retain those persons who might be equally qualified who had been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers. In *Keim*v. *United States*(177 U. S., 290) the Supreme Court in affirming this court (SB C. Cls. R., 174) said that Congress had generously provided for the discharge of the national obligation to those who had done faithful service in the army or navy. Mr. Justice Brewer, in delivering the opinion of the court, added:

> “ But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or continuance in office of incompetent or inefficient clerks simply because they had been honorably discharged from the military or naval service. The preference, and it is only a preference, is to be exercised as between, those ‘ equally qualified.’ ”

After declaring that the determination of the question of efficiency from the heads of departments to the courts was never contemplated, the court held that the efficiency of those who had been tested in the service was with the administrative officers. Being, then, an administrative function more than judicial, courts can not supervise the judgment of the proper administrative officer as to whose services could be dispensed with any more than the judiciary can be called upon to supervise the results of a civil-service examination. When, as stated in *Wiekersham's*case, supra, it was held that the employee was entitled to the privileges and emoluments of his position where there was an attempted suspension without authority of law, it also appeared that there could *481be no retention of a place in the civil service when, by his own action, the employee became legally disqualified or was taken out of'the service by some duly authorized public authority. The principle that there can be no interference of the courts with the performance of the ordinary duties of the executive departments is too well established for the court to group the authorities. The findings show that plaintiff’s rating as to habits was poor. But whatever they were and however efficient he may have been, the findings also show that plaintiff’s services were discontinued because of the law which compelled a reduction of the force. When it was determined by the proper authority that plaintiff was not as well qualified as some other employee in the service to remain, the discretion invested by law in the removing power must be held to have been exercised properly unless there be something in the final contention of the plaintiff that the Commissioner of Pensions had no authority to determine the question of who should be removed because he was not the head of the Interior Department.

In *Decatur*v. *Paulding*(14 Pet., 497) it was said by Chief Justice Taney that the interposition of the courts with the performance of the ordinary duties of the executive departments might throw the whole subject of pensions into the greatest confusion and disorder. If that be true concerning pensions paid at that time, what would ensue now if the court should undertake to interfere with the executive management of pensions ? In legal contemplation the head of a department is an arm of the Executive. *(Wolsey*v. *Chap*man, 101 U. S., 755.) But in the nature of things its head can give but small personal attention to the very many questions arising in the various offices under his control. The Pension Office is a large branch of the Interior Department. It is directed by a commissioner and, like the General Land Office and the office of the Commissioner of Indian Affairs, has a chief with duties and obligations of vast importance and responsibility. All these officials are made subject by law to the direction and control of the Secretary of the Interior. (Rev. Stat., secs. 453, 471; *Knight*v. *United States Land*Association, 142 U. S., 161.) In *Wilcox*v. *Jackson*(13 Pet., *482498) the question was directly presented whether- an order from an executive department was “ by order of the President,” and the court felt justified in presuming that the departmental order was with the ajiprobation and direction of the President. “ Such an order sent out from the appropriate .executive department *in the regular course of business*” was declared by the court to be “ the legal equivalent of the President’s own order to the same effect.” (101 U. S., 770.) When the responsible head of the Pension Office exercised discretion as to the capacity between those in office and removed plaintiff the administrative discretion thus exercised can not be made the subject of review by the courts.

Petition dismissed.