#### WILLIAM A. MILLER v. THE UNITED STATES.

[No. 28987.

Decided June 6, 1910.]

*On the Proofs.*

The claimant is appointed by the Public Printer in the classified service as assistant foreman of a bindery. Subsequently he is suspended by the Public Printer and thereafter dismissed. The Civil Service Commission hold that he was improperly discharged and that he should be reinstated, which is done by the President. This action is to recover his pay from the time he was suspended until the time he was reinstated.

I. As the power to appoint employees in the Government Printing Office is vested in the Public Printer and the power of removal is incident to the power of appointment, a court can not determine whether an employee was rightfully or wrongfully discharged. It is for the Public Printer to determine whether the suspension or discharge of an employee will promote the efficiency of the service, and of this he is the sole judge, subject to rules prescribed by the President through the Civil Service Commission. The cases relating to the discharge of employees in the executive departments reviewed.

II. Where an officer is wrongfully suspended by one having no authority to do so he is entitled to the compensation provided by law, during the period of suspension. But where he is suspended or discharged by some one duly authorized to do so he is not entitled to pay. ¡

*The Reporter's*statement of the case:

The facts of the case will be found sufficiently set forth in the opinion of the court.

*Mr. Henry M. Foote*for the claimant:

It is hardly necessary to quote authorities to sustain the contention that where a person has been unjustly suspended *510in the exercise of his official duties and the power having jurisdiction of him as an employee reinstates him that he is entitled to whatever emoluments are attached to the office during such period of suspension. This doctrine was announced in the *Lelbnann case*(37 C. Cls. R., p. 135), and in *Corcoran’s case*(38 ib., p. 345), and again in the *case of Steele*(40 ib., p. 405). The case of Lounsberry, which was tried in this court, in which a judgment was entered for the claimant, was also a case of the same character.

The civil-service law and rules promulgated by the President thereunder are a system by which persons enter the classified service of the Government. Once having been classified, their removal is rendered impossible except for causes which will promote the efficiency of the public service. (Rule No. 12, p. 60, 20th Rept. Civil Service Law and Rules.)

If it is disclosed by the record of removal that it was in accordance with the provisions of this rule, the action of the removing power can not be judicially inquired into. (33 C. Cls. R., 174; *Kiem’s*case, which was affirmed by the Supreme Court in 177 U. S. R., p. 294.) This rule is stated for the purpose of convincing the court that when the'record of removal does not show that the removal was made to promote the efficiency of the public service, that upon the very face of it the removal is illegal, and, being so, the person affected by it does not lose the right to the emoluments of the office from which he was removed in case of reinstatement.

The case under consideration does not involve a judicial inquiry into the motives which prompted the Public Printer to discharge claimant, because his order discharging him, upon its face, was plainly in violation of the rule stated, as the same failed to state that his removal was made to promote the efficiency of the public service.

The Civil Service Commission, apparently, took this view of the case, because it notified the Public Printer that claimant’s removal could not be recognized, and that it must request that he be reassigned to duty in his position. Not only did the commission so decide, but the President wrote *511an order to the Secretary of Commerce and Labor in which he said that said removal was in violation of law, and directed the Public Printer to reinstate claimant, which he did by his order of July 16, 1903.

In the case of *Lyman B. Perkins*v. *United States*(reported in 20 C. Os. R., p. 438, which was affirmed on appeal to the Supreme Court in 116 U. S. R., p. 483) it appeared that Perkins, who was a naval cadet engineer, was placed on waiting'orders by order of the Secretary of the Navy on June 23, 1883, and on the 26th of said month was by said officer discharged without trial by court-martial, as is required by section 1229 of the Revised Statutes. In commenting upon this section the court said:

*“*It follows that as claimant was not found deficient at any examination, and was not dismissed for misconduct under the provisions of the Revised Statutes (sec. 1525), nor upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof according to Revised Statutes (sec. 1229), he is still in office and is entitled to the pay attached to the same.”

In the case of *Thornton Smith*(2 C. Cls. R., 209) the facts were that Smith was an assistant quartermaster in the Volunteer Army, and in September, 1862, was dismissed from the service by order of the President for the alleged reason that he was absent from duty, etc. On the 13th day of February, 1864, the President revoked said order of dismissal, he having become satisfied that the alleged reason for said dismissal did not exist. Smith brought suit to recover pay due him from the date of the order of dismissal to the date of the revocation of it and the court gave him a judgment.

The legal right to an office carries with it the right to the emoluments of it. An attempted suspension or removal which is illegal and void as affecting the title to the office does not deprive the officer of his right to the salary. (19th vol. American and English Enc. of Law, p. 531, and numerous cases cited in note.) These cases are all declaratory of the principle which is applicable to the case under consideration, the important one being that of Perkins, which affirms the rule that where Congress has placed a limitation upon the authority of the removing power, that a removal *512in violation of such law operates only as a suspension from service without impairing the right of the person so suspended from recovering' the emoluments of the office prior to reinstatement.

This brings us to a discussion of the effect of rule 12 of the civil-service rules. If the President was authorized to promulgate it, the same must be held to be a limitation upon the removing power, and, being so, claimant was removed contrary to law and his status is precisely like that of Perkins, already referred to.

It can not be denied that in pursuance of the civil-service act of 'January 16, 1883, and rules made for carrying the same into effect, that claimant was employed in the classified service of the Government at the time of this attempted removal. To hold otherwise would be contrary to the object and purpose of the act as now administered in all departments of the Government. Its second section authorizes the President to promulgate the necessary rules for carrying the same into effect.

Subsequently several directory statutes were passed authorizing the President and the heads of each department to prescribe regulations, not inconsistant with law, as may best promote the efficiency of the service.

It was held by the Attorney-General in Tenth Opinions, page 469, “ that where an act of Congress establishing a general system confers upon the President the authority to do a specific act for the purpose of perfecting the means by which the system shall be carried into effect, the act of the President, when performed according to the terms of the statute, has all the validity and authority of the statute itself.”

If we examine rule No. 12 carefully, it will be seen that in no sense is it in conflict with the civil-service law. These causes which justify a removal for the good of the service leave no other grounds for removal except such as are inspired by personal considerations, or are prompted by political, religious, or other similar reasons, any one of which is not only in violation of the letter but the very spirit of the civil-service act itself.

*513It would be a strange doctrine and a most novel proposition to bold that the statute, being “An act to regulate and improve the civil service of the United States,” authorized restrictions, through its rules and regulations, upon the appointing power but did not authorize by the same means any restrictions upon the removing power.

It would hardly seem necessary, if the declarations of the Civil Service Commission and the President are to be considered authoritative, to refer to the statute • creating claimant’s official position in the Printing Office. The court will take judicial notice that he could not have been paid for any service not authorized by law, and that it was in consequence of the civil-service act that he became assistant foreman in said office. Being in the classified service, he was protected by all the rules and regulations which govern those who are paid by either method.

When claimant entered the civil service of the Government and accepted the conditions of that service, an implied obligation was created upon the part of the Government to continue him in such service until its efficiency would be promoted by his removal. In consideration of this tenure of office and the compensation which was fixed for the performance of its duties, claimant agreed, by implication, to so conduct himself in the discharge of his official responsibilities as to best promote the efficiency of said service.

Under the provisions of section 2 of the civil-service act it became the duty of the Public Printer to aid in carrying the rules of the President issued in conformity therewith into effect. The removal of claimant by this officer in violation of rule 12 was not only in direct violation of said section but in plain disregard of his duties and obligation to carry said rule ipto effect and operation.

*Mr. 8. 8. AsKbaugh*and *Mr. Frank E. Elder*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Peelee, Ch. J.,

delivered the opinion of the court:

The claimant herein was duly appointed by the Public Printer in the Government Printing Office at $6.40 per diem *514in what is known as the classified service. On May 14,1903, he was suspended from the position of assistant foreman of the branch bindery of that office until such time as final action should be taken in the case, of which he was advised, together with the reasons therefor. ,

May 18, 1903, the claimant was notified by the Public Printer that his services would not be required in that office after the expiration of any leave of absence which might be found due him; and thereafter he was dismissed from the service.

The claimant being within what is known as the classified ■ service, his suspension and subsequent discharge were reported to the Civil Service Commission, and they held that he was improperly discharged; and thereafter, on July 13, 1903, he was ordered to be reinstated by the President, which was done, and he reported for duty July 27,1903.

The action is brought to recover the amount of pay ($6.40 per day) from the time he was so suspended or discharged.

The claimant’s contention is that his suspension and subsequent discharge were illegal and in violation of section 2 of rule 12 of the civil-service act, which reads:

> “ No person shall be removed from a competitive position except for such cause as will promote the efficiency of the public service, and for reasons given in writing, and the person whose removal is sought shall have notice and be furnished a copy thereof, and be allowed a reasonable time for personally answering the same in writing; but no examination of witnesses nor any trial or hearing shall be required, except in the discretion of the officer making the removal. Copy of such reasons, notice, and answer, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for any change in rank or compensation, and the commission shall, upon request, be furnished with copies of the originals thereof.”

It is conceded that the power of the appointment of employees in the Government Printing Office rests with the Public .Printer, and therefore removal is incident to the power of appointment. Whether the claimant was rightfully or wrongfully discharged is not for the court to determine, as the discretion is lodged in the Public Printer to discharge or suspend when, in his judgment, such suspension' *515or discharge will promote the efficiency of the public service, of which he is sole judge, subject to the rules prescribed by the President through the Civil Service Commission, and to whom he is amenable for his conduct in such matters. As the result of the action of the commission the President ordered that the claimant be reinstated.

As the power of appointment rests with the Public Printer, and he suspended and discharged the claimant, the court must presume, since he has acted, that such suspension and removal, in the absence of fraud, were to promote the efficiency of the public service, and the court can not, therefore, go behind his act.

In the case of *Keim*v. *United States*(177 U. S., 290, 292), affirming the decision of this court (33 C. Cls. R., 174) respecting the discharge of an honorably discharged soldier who had passed the civil-service examination, but who was discharged because his rating was “ inefficient,” the Supreme Court said:

> “ It has been repeatedly adjudged that the courts have -no general supervising power over the proceedings and action of the various administrative departments of Government. Thus, in *Decatur*v. *Paulding*(14 Pet., 497, 515), in which was presented the question of the right of the Circuit Court of the District of Columbia to issue a writ of mandamus to the Secretary of the Navy to perform an executive act not merely ministerial, but involving the exercise of judgment, it was said by Chief Justice Taney: *‘*The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment-in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. * * * The interference of the courts with the performance of the ordinary duties of the executive departments of the Government would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.’ ”

• It was therefore in substance held that the removal of the claimant in that case on account of inefficiency was “ beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had' not been removed.”

*516In the case of *Shurtleff*v. *United States*(189 U. S., 311), affirming this court (36 C. Cls. R., 34), where the claimant had been appointed by the President under an act of Congress which provided for removal at any time for inefficiency, neglect of duty, or malfeasance in office, the court held that if removal were made for either of these causes the claimant would have been entitled to notice and hearing, but that if the President saw fit to remove him without giving such notice it was presumed that the removal was not made for either of said causes; that the President’s pcfwer of removal was not limited to the causes specified in the act, but that he might remove outside of said causes under his general power of removal. This, of course, has reference to the power of the President, to whom the Public Printer is responsible for his action under the civil-service rules promulgated for the guidance and action of administrative officers.

. In the case of *Lellmann*v. *United States*(37 C. Cls. R., 128), where a clerk in the office of the surveyor-general had been suspended without charges being preferred and the suspension was revoked by the Commissioner of the General Land Office and' his reinstatement ordered, the, court held that the revocation invalidated the suspension and entitled the clerk to recover the salary of his office during the period of suspension, but that where he was suspended and charges preferred and the Commissioner of the General Land Office investigated the charges and ordered that the suspension be made permanent, the action of the commissioner was in legal effect a dismissal and was not subject to judicial review.

In the case of *United States*v. *Wickersham*(201 U. S., 390), affirming the judgment of this court, the court held in substance that a stenographer receiving a specified salary in the office of the surveyor-general could not be removed by that officer, a subordinate, without just cause and upon written charges, and that until removed in accordance with the law and rules thereunder, he was, so long as he was ready and willing to discharge the duties of his office, entitled to the compensation provided therefor. That is to say, “ where an officer is wrongfully suspended by one having no au*517thority to make such an order, he ought to be, and is, entitled to the compensation provided by law during such suspension.” But where he is suspended or discharged by “ some duly authorized public authority ” he is not entitled to pay.

In these cases the surveyor-general had no authority to discharge without the consent of the Commissioner of the General Land Office or the Secretary of the Interior.

In the recent case of *Buehring*v. *United States*(ante, p. 404), where a postmaster had suspended a letter carrier

with the approval of the First Assistant Postmaster-General, the court held that that did not operate to discharge the carrier, for the reason that the power of removal was incident to the power of appointment, and that as the appointment of the carrier was lodged in the Postmaster-General he alone could discharge.

Here, though, the cause assigned for the removal of the ■ claimant was not, in the opinion of the Civil Service Commission, such as would promote the efficiency of the public service; still, as that question, in the absence of fraud, rests within the discretion of the Public Printer, subject to executive regulations, the court is without power to review, especially since the claimant was a per diem employee and not an officer, and performed no service during the time for which he claims.

Petition dismissed.