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

[No. 21162.

Decided May 2, 1910.]

*On the claimant’s Motion.*

This case was tried at the last term and is fully reported in 44 O. Cls. It., 469. The claimant now moves for a new trial, on the ground that his removal from office was by the order of the Commissioner of Pensions and not by the Secretary of the Interior.

I. Whether a clerk in the pension agency at Indianapolis, who was removed under the .4ci *15th August, 1876*(19 Stat. L., p. 169), which authorized reductions of force in the executive departments, was as well qualified as others in the service who were not removed, is a departmental question which can not be considered by the court.

-II. The Commissioner of Pensions is subject by law to the rules and regulations established by the Secretary of the Interior; and where reports are required for the action of the head of the department and they are ratified they become the act of the secretary.

III. The presumption is that where an order is sent out from the proper executive department in the regular course of business it is sent with the knowledge and approval of the head of the department unless the contrary appears. His acquiescence is the legal equivalent of an order.

*The Reporters’*statement of the case.

The grounds of the claimant’s motion will be found in the opinion of the court.

*Mr. L. T. Michener*for the motion:

1. The report of the case is in 44 C. Cls. R., 469. In the actual necessity to make removals was included the legal necessity to make them in accordance with the statutes, and not contrary to them. That could be done only by removing such clerk or clerks as had not had military service, of whom, as Finding VI shows, there were then twelve in the Indianapolis office, and with whom claimant, in the language of Finding V, was “ able and equally qualified ” to discharge the duties of that clerkship. Such fact, and the statutes *396and executive order, made it incumbent on the bead of the department to proceed according to law, and diminish the force in the Indianapolis office by dispensing with the services of one of those who were not honorably discharged Union soldiers and sailors.

2. The action of the commissioner was null and void, because he had not been invested with authority to make removals. The question was put at rest, if there had ever been any doubt about it, by the opinion of the Attorney-General (21 Opinions 355, and *Wilcox*v. Jackson, 13 Pet., 498, 511, 513). It does not appear in the case at bar that the commissioner, in the removal of claimant, acted under the direction of the Secretary, or that he was given any such authority by the President.

3. Again, if Congress had intended that the commissioner should have the power in himself to make a reduction in the force by removal, it would have been clearly expressed by statute, or if Congress had intended that the commissioner should have joint authority with the head of the department in taking such action, it would have been conferred by statute, just as was done in the act of March 14, 1898 (30 Stat., 277, 306).

Illustrations of the direct granting of power to subordinates, subject to the direction or approval of the head of a department, may be found in sections 420, 1113, 1139, 1141, 1152, 1163, 1164, 1165, 1166, relating to the administration of the affairs of the War Department and the army. We venture to say that an examination of the entire body of the statutes would show that the acts of every bureau chief must be according to the direction or subject to the approval of the head of his department.

4. We ask particular attention to the fact that in the case of *United States*v. *Wickersham*(201 U. S.), the stand is clearly and positively taken (pp. 397, 398, 399), that it is the head of the department who acts in all matters of suspension and removal. The *Wickersham case*is squarely in point here, so far as it goes, but Wickersham was not protected by the act of 1876.

*3975. It is not sufficient to say that the act of. March 14, 1898 (30 Stat., 276), authorized the reduction of force by dispensing with the services of the claimant, despite the fact that he was equally able and qualified with the twelve civilians who were then in the office of the Indianapolis agency, for as that power was not expressly given by the act, it is clear that Congress did not intend that this act should be considered as a repeal or modification of the previous acts or of the executive order of July 27, 1897. On the contrary, that act and the previous acts giving protection to the claimant, are to be considered and enforced as a harmonious whole.

6. Before the presumption can obtain that a public officer has done his duty, there must be evidence of facts and acts that have been *legally and regularly done (United States*v. *Ross,*92 U. S., 281, 284), but there is no such evidence here.

There can be no presumption in the case at bar that will be a substitute for proof of the “ independent and material fact ” that the action of the commissioner was by the direction of the Secretary, or subsequently met with his approval. A presumption of lawful conduct can not be erected on an unlawful act. The established facts preclude.a predirection, or a subsequent ratification by the Secretary, and neither can be presumed for there is nothing lawful on which to base the presumption.

The rule above stated has been applied in many cases, such as *Rosenthal*v. Walher, 111 U. S., 185, 193; *Schütz*v. *Jor-don,*141 U. S., 213, 219; *Moses*v. *United States,*166 U. S., 571, 580, 581; Best on Evidence (5th Eng. ed.), sec. 261, and cases cited, and *Sabariego*v. *Maverieh*(124 U. S., 261, 278-301).

In the foregoing cases, and we daresay in all reported cases where a presumption of this kind Avas applied, it was not until there had been substantive proof offered of the doing of one or more laAvful and regular acts, upon Avhich the presumption was then based.

Why did not the Government prove that the Secretary either directed or approved the act of removal ? Acts of that kind, as the court is well aAvare, are put of record faithfully and always. As the Government has failed to furnish such *398proof, the presumption arises inevitably that there was neither direction nor ratification on the part of the Secretary. *(United States*v. *Denver <& B. G. R.*R., 191 U. S., 84, 92.)

Moreover, when the Government placed its reliance on the weak and inconsequential evidences of the commissioner’s letter informing claimant that he had been removed, it lays itself open to the suspicion that the stronger evidence would have been prejudicial to the Government and not beneficial. *{Glifton*v. *United*States, 4 How., 242, 247; *Runlde*v. *Burn-hamr,*153 U. S., 216, 225, 226.)

7. The case of *Keim*v. *United States*(177 TJ. S., 290) is worthy of attention. Keim was removed by the Secretary of the Interior on the recommendation of the Commissioner of Pensions (p. 291). That is the regular course, and one that should not be departed from. Then the Secretary, on the recommendation of the commissioner, retained other clerks in the office who were not union soldiers (p. 291). This court did not find whether or not Keim was equally qualified with those clerks who were retained, but it was not necessary to do so, for the reason that he was discharged for inefficiency. The Supreme Court said (p. 295) : “ The preference, and it is only a preference, is to be exercised as between those equally qualified, and this petitioner was discharged for inefficiency.” Keim was not a soldier or sailor and was not protected by the act of 1876.

The final paragraph of the majority opinion in this court (33 C. Cls. K., on p. 187) is particularly pertinent: “The superior executive officer decides as to the removal. The law controlling him is the unwritten law of fairness, justice, kindness, and honesty, and also the written law providing (other things being equal) that the soldier shall be preferred.”

8. In the *Stillings case*(41 C. Cls. R., 61) the-claimant had been appointed a pilot in the quartermaster’s branch of the army. His appointment was made by the Acting Secretary (pp. 62, 64). A quartermaster suspended Stillings, without pay, for alleged dereliction of duty while in charge of the steamer *General*Thayer, submitted charges against him, and gave him three days’ notice in which to make a written de*399fense. There a subordinate took affirmative and drastic action against the pilot, and we call special attention to the fact that section 1133, Revised Statutes, is far broader in its scope and gives a wider range of power to the officers of the quartermaster’s department than does section 420, Revised Statutes, which defines the power of the Commissioner of Pensions. The Acting Secretary of War decided that the charges against the pilot were not sustained, and directed that he be restored to duty when his services were required, and in the meantime he was put on furlough (p. 62). The opinion was written by Judge Howry, in the course of which it was said:

“ It is going quite far enough to say that the power having jurisdiction over him could dispense with his services at will, but this court has never recognized the right of one subordinate to order another subordinate out of the public employment, either by summary dismissal or its equivalent, stated in the form of a furlough without pay, unless sanctioned by the head of the department or other superior officer invested with power to appoint and dismiss.”

That position, which we submit is absolutely sound, is quite antagonistic to the position taken in the opinion written by Judge Howry in the case at bar.

9. Certain cases are cited in the concluding paragraph of the opinion of the court, and of them it is sufficient to say that they each deal with the acts of heads of departments.

The rule invoked in those cases applies to the head of a department when he acts in the exercise of a power vested in him directly, or in the President, and it does not apply to the act of a subordinate as between him and the head of the department, or as between him and the President. To extend that rule to the case at bar is to overturn more than one statutory enactment, and is to make the Secretary responsible for the unauthorized or unapproved act of the commissioner, although that act is without authority of statute and in plain opposition to an executive order.

*Mr. A. O. Campbell*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*opposed.

*400Howry, J.,

delivered tbe opinion of the court:

. Petitioner, as an honorably discharged veteran of the civil war, was appointed to be 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 under a law limiting the force, he was removed from his position without the filing of written charges against him. The act of August 15, 1816 (19 Stats., 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 act merely gave a preference to such persons, and the power under the act was to be exercised onty as between those “ equally qualified.” Petitioner, soon after his removal, was reinstated in the civil service and became a watchman in another department on a smaller salary. Thereupon be brought an action to recover the difference between the amount he would have received had he continued in the service at the pension agency and the amount he did receive for his services as watchman in another department, upon the allegation that his removal from the clerkship was unlawful. The court dismissed the cause for reasons set forth in an opinion upon findings then filed. (44 C. Cls. R., 469.)

The questions now presented arise on the claimant’s motion for new trial, and we are asked to reverse our former decision upon the ground that claimant’s removal was accomplished upon the order of the Commissioner of Pensions, who, it is alleged, was without power to reduce the force at the pension agency by the removal of the claimant, inasmuch as that duty could only be exercised by the Secretary of the Interior.

Preliminary to any discussion of the question of the legality of the removal it should be stated that in making up the findings the court adopted one of the petitioner’s requests in full without intending to include the last paragraph of the claimant’s fifth request, which contained the allegation that petitioner was equally qualified with others to discharge the *401duties of the office from which he was removed. The statement as it appears in the published reports, 44 C. Cls., supra, grew out of the want of a more careful revision of the printer’s copy of the findings. The inadvertence appearing-in the fifth finding is of no consequence, however, as it officially appears that claimant was removed for want of the necessary amount available to retain the full clerical force on duty at the time of the passage of an act requiring the reduction. The sixth finding of the court discloses that it was found that claimant’s habits were poor, and a subsequent finding shows the exercise .of the departmental discretion by the order of removal. The findings, as now corrected, cover the facts of the case as originally designed to be stated and published, as the notes of the court show.

There was no proof before the court to the effect that the claimant was as well qualified as those clerks who were retained. Such proof, if offered, would have been incompetent. Whether petitioner was as well qualified as others in the service who were not removed was a departmental question resting with the proper official to determine those who among the force were best qualified and to dismiss those least qualified. The matter of qualification as between the persons then employed in the service was an administrative function which the courts could neither supervise nor inquire into after the exercise of the discretion of the proper official in dispensing with the services of those adjudged to be least qualified under the law which required a reduction in the force. *(Keim*v. *United*States, 33 C. Cls. R., 174; 177 U. S. R., 290.)

The motion is rested almost entirely upon the rule long since adopted that the power to appoint and remove is discretionary in character and can not be delegated, and that since the power of appointment is confided to the head of an executive department the action of a subordinate official with respect to removal is *ultra vires. (Ex parte*Hennen, 13 Pet., 230; *Blake*v. *United*States, 103 U. S. R., 227; *United States*v. Allred, 155 U. S. R., 591.) Departmental heads may inquire, investigate, and determine by the aid'of subordinates, *402but the final determination must be the executive head and not theirs. (7 Opins. Attys. Gen., 594; 21 Ib., 355.)

This court in *Stillings*case, 41 C. Cls. R., 61, held the Government liable on the ground that a quartermaster could neither dismiss a pilot from the service nor suspend him with-, out compensation for alleged dereliction of duty. It was there stated that the subordinate officer could not order another out of the public service unless the action of the inferior officer Avas sanctioned by the superior having the power to appoint and dismiss. Thus it appears that the court was strictly in line with the rule adopted b3^ the Supreme Court, and we are in entire harmony with counsel for claimant that the rule applied for Stillings’s benefit was sound.

But it does not follow that the dismissal of this claimant was illegal.

In our former opinion we adverted to several cases. (1) In *Decatur*v. *Paulding*(14 Pet., 497) it appeared that Chief Justice Taney said “ 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.” We added that if it were true concerning pensions paid in his day, what would ensue now if the court should undertake to interfere with the executive management of pensions?

(2) In *Wilcox*v. *Jackson*(13 Pet., 498) the question was presented whether an order from an executive department was by authority of the President where the latter’s order did not appear. We added that the Supreme Court felt justified in presuming that the departmental order was with the approbation and direction of the President.

(3) In *Wolsey*v. *Chapman*(101 U. S. R., 755) it was declared that “ an order sent out from the appropriate executive department *in the regular course of business is the legal equivalent of the President's own order to the same*effect.”

But counsel for claimant argues that these decisions do not apply, because the rule gathered from them relates to the head of a department acting under a power vested in him directly or in the President, and can not refer to the act of *403a subordinate as between that subordinate and the head of a department or as between the inferior officer and the President.

The Commissioner of Pensions is subject by law to the direction and control of the Secretary of the Interior. (Rev. Stats., secs. 453, 471.) Like the Commissioner of the General Land Office and the Commissioner of Indian Affairs, the Commissioner of Pensions is in charge of details of vast magnitude and under responsibility of great moment. But the rules and regulations authorized to be prescribed by the head of the department for the conduct of the business relating to pensions have the force and effect of law when not in conflict with the requirements imposed by the statutes. These regulations provide for the management and control of the business of this great subdepartment by a Commissioner of Pensions. Eeports are required from this grand division of the service to the head of the department for such action as the higher officer may take within the law, *and when ratified become the act of the Secretary of the Interior.*Judicial notice must be taken of these regulations and the practice of the department under them. There is a presumption when an order is “ sent out from the appropriate executive department in the regular course of business,” that such order is with the knowledge and approval of the Secretary, unless the contrary appears. Certainly; as these matters are officially reported and there is no revocation of the action taken approval is presumed, and *acquiescence' becomes the legal equivalent of an order of the head of the deyartment.*

It can not be assumed from this record that the Secretary of the Interior was without knowledge of what was done at the time the claimant was removed and that he did not sanction the act of the commissioner in determining who were best qualified to continue in the service under the limited appropriation among those employed at the pension agency at Indianapolis.

Motion denied.