#### LOUIS H. EBERLEIN v. UNITED STATES.

[No. 33266.

Decided May 27, 1918.]

*On the Proofs.*

*Civil service employee; removal of.*— Where an employee in the classified civil service is regularly removed from office undercharges, and the officers removing him were empowered by law so to do, the question as to whether there was just cause for such removal is one for the executive authorities, and the courts deal only with any departure from the law itself.

*Same; reinstatement by President, effect of.*— Where after such removal it is discovered that the charges upon which said re*467moval was based were without merit, and the employee is “ reinstated ” in his former position by proclamation of the President, such reinstatement was not intended to convert the removal into a suspension from duty but to render the employee again eligible for the same position.

*The Reporter’s*statement of the case:

*Mr. W. E. Russell*for the plaintiff. *Dudley & Miehener*and *Spoor & Russell*were on the briefs.

The charges against plaintiff were preferred by the Collector of Customs at the instance of the Department of Justice. Prior to, and after his removal, plaintiff made repeated efforts to obtain a hearing and begged for the privilege of facing his accusers but such requests were not granted. Plaintiff constantly and consistently maintained his innocence and made strenuous attempts to obtain his reinstatement through the Treasury Department and through the Attorney General’s office. He finally succeeded in getting his case before the then Attorney General of the United States. Upon the recommendation of the Attorney General, a hearing was finally accorded him before the Surveyor of Customs of the Port of New York during the month of May, 1912. Plaintiff was then acquitted of the charges. Despite his acquittal, the Treasury Department again refused his re- , instatement. Plaintiff finally managed to get his case before the President of the United States who caused an investigation to be made and, upon the completion thereof, issued the Executive Order set forth in the petition, reinstating him to his. position as United States Storekeeper at $1,600 per annum.

While it is true that claimant was not entitled to a hearing upon the charges, except in the discretion of the officer making the removal, yet it is manifest from the record in this case that a grave and irreparable injustice was done an innocent man in removing him from his position without a hearing, and in subjecting him to the humiliation and disgrace of a removal on charges involving great moral turpitude.

*468Article 1385 of tbe Customs Laws and Regulations of 1908 provides in part as follows:

“ Subordinate customs officers are removable by the Secretary of the Treasury. The name of any subordinate officer whose removal is deemed necessary or proper is to be reported to the Secretary of the Treasury, with a full statement of the reasons therefor, and 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 with another appointing officer, of which the accused shall have full notice and an opportunity to make defense.”

It is respectfully submitted that the record in the case at bar conclusively establishes that this claimant was removed without just cause and in violation of the article referred to above, and therefore removed unlawfully.

Plaintiff’s reinstatement by Executive order restored to him the status enjoyed on the day of his suspension and entitled him to the salary of his office during the period of unlawful removal.

The word “ reinstate ” is defined by Webster’s New International Dictionary as “to instate again; to place again (in possession or in a former state); to reinstall; to reestablish; to restore (to a state from which one had been removed) .”

The above interpretation is also given in 24 Am. & Eng. Encyc. of Law, 246, and in 3 Bouvier’s Law Dictionary, 2861. The case of *South*v. *The Commissioners of the Sinking Fund,*86 Ky., 186, construes the word “ reinstate ” as defined in Webster’s Dictionary.

It would appear, therefore, that the reinstatement of the plaintiff was a restoration to the state from which he had been removed, and in contemplation of law, a restoration to him of the office that had been taken from him, *ab initio.*

In the case of *Lellman*v. *United States,*37 C. Cls., 128, this court said:

“ It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power haying jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be due him during the time of such suspension.”.

*469If this be true of a suspension, there is stronger reason for the application of the rule in the case of a removal. Plaintiff’s reinstatement by Executive order, the Secretary of the Treasury concurring, annulled the removal and left him in the position of having his whole record swept clear of the charges and their consequences.

The case of *United States*v. *Wickersham,*201 U. S., 390, is somewhat similar and emphasizes the rule laid down in the *Lellman case, sufra.*The court in the Wickersham case, in holding that the plaintiff was entitled to the salary of his office during the period of unlawful suspension, said:

“We see no reason, in such an attitude of the case, where a wrongful suspension is clearly established, and the ability of the incumbent to discharge the duties of his office is affirmatively found, for withholding from him the compensation given by law to an incumbent of the place.”

This rule regarding payment of compensation to an employee of the Government who has been unlawfully removed, was recognized in an earlier case, *Perkins*v. *United States,*20 C. Cls., 438, affirmed -116 U. S., 483. There, a cadet engineer of the Navy was removed by the Secretary of the Navy in violation of a law of Congress. It was held that the removal was invalid and that the plaintiff was still in office and that he was entitled to the emoluments attached thereto.

It is submitted that the rule above announced is just and proper and that it is of wide and universal application. *Fitzsimmons*v. *City of*Brooklyn, 102 N. Y., 636; *People ex rel Nugent*v. *Board of Police*Commissioners, 114 N. Y. 245; *Emmitt*v. *Mayor,*128 N. Y., Ill; *Jones*v. *City of Buffalo,*178 N. Y., 45; *People*v. *Stevenson,*272 Ill., 215; *Leonard*v. *City of Terre Saute,*93 N. E., 872; *Seifen*v. *City of Racine,*129 Wis., 343; *Andrews*v. *City of Portland,*79 Me., 484; *Garvey*v. *City of Lowell,*199 Mass., 47; *State ex rel Chapman*v. *Walbridge et al.,*153'Mo., 194; *Houston*v. *Estes,*35 Texas Civ. App., 99; *Everill*v. *Swan,*20 *Utah,*56.

In the leading case of *Fitzsimmons*v. *City of Brooklyn, supra,*it was held that a public officer receives his salary as an incident to the office, and not by virtue of any contract, and that the lawful incumbent of an office is entitled to the *470salary thereof, where and when he was prevented from performing the duties thereof without fault of his own. The doctrine of this Fitzsimmons case has been followed in the different states, almost without exception.

*Mr. Honey D.*Jacob, with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

Booth, Judge,

reviewing the facts found to be established, delivered the opinion of the court.

The plaintiff, Louis H. Eberlein, held the office of United States storekeeper in the customs service in and for the port of New York; he had been advanced to this position through two promotions. On May 9, 1910, the plaintiff was suspended from duty without pay, to take effect at the close of the above business day. The cause for his suspension was the preferment of certain charges wherein he was alleged to have been involved in the underweighing frauds perpetrated by certain customs officials against the United States. The charges made were extremely serious, both from a moral and legal view, and if proven convicted him of having accepted money bribes from certain importers to underweigh cargoes of sugar and thereby defraud the Government. The plaintiff answered the charges in writing and under oath specifically denied guilt, asserting with much positiveness that as to him the charges were a mistake. On May 26,1910, plaintiff was removed from office because of said charges. In May, 1912, two years subsequent to his removal, plaintiff induced the Attorney General of the United States to rein-vestigate his record. The Attorney General after a careful and detailed investigation did, on June 11, 1912, report in writing to the Secretary of the Treasury in effect that the charges were not sustained and the plaintiff should be reinstated. Mr. Nelson M. Henry, surveyor of the port, on June 5, 1912, made to the collector of customs a similar report after an investigation. On December 8, 1912, President Taft, by an Executive order of that date, and in pursuance of a still further investigation of the matter, directed the reinstatement of the plaintiff, and on December 16, 1912, the collector did reinstate him in his former position. This suit *471is to recover the salary of the office held by the plaintiff from the date of his removal therefrom to the date of his reinstatement.

Article 1385 of the Customs Laws and Regulations of 1908 provides as follows:

> “ Subordinate customs officers are removable by the Secretary of the Treasury. The name of any subordinate officer whose removal is deemed necessary or proper is to be reported to the Secretary of the Treasury, with a full statement of the reasons therefor, and 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 with another appointing officer, of which the accused shall have full notice and an opportunity to make defense.”

There are cexlain features of the case which are admitted. The plaintiff was an appointee in the classified service and the office he held was likewise subject to said service. The innocence of the plaintiff must also be conceded, not that it is by the defendants; nevertheless the record precludes a contrary assertion. It is also apparent that the proceedings followed to remove and subsequently reinstate the plaintiff were regular and followed the law. The officers of the defendants participating therein were duly authorized and empowered to do the things they did do. With these features of the case removed from consideration the issue is narrowed and we are alone to detei%iine whether the reinstatement of the plaintiff operated to continue him in office during the period of his removal.

The intent and spirit of the civil service law and the regulations promulgated thereunder need at this time no elaboration. The plaintiff was removed in accord with their provisions, and the question as to *just cause*was left with the executive authorities, the courts dealing alone with any departure from the law itself. The discretionary power of the executive officer authorized to act is final and not subject to reveiw by the courts. *Keim*v. *United*States, 177 U. S., 290.

In so far as cited authorities extend the instant case seems *sui generis.*If the civil service law has been complied with the courts are prevented from going further. The plaintiff *472received the full measure of his rights under the law; he was accorded all the privileges it extends, and his removal from office was in strict accord therewith. The charges resulting in his removal from office were preferred in writing, his answer thereto in writing was duly filed, and the record thus made was before the proper officer for his final action.. The officer removed him and from his decision there was no direct appeal provided by law. The proceedings subsequent to his lawful separation from office simply reinstated him in the classified service, made him reeligible to appointment, and subsequently resulted in his reinstatement in the Government service. The word “ reinstatement ” was used, but not in a strict technical sense as intending to nullify all that had been done before and return the plaintiff to his exact forager state in the service. The final action by the President reinstated the plaintiff in the classified service, not the Government service; it would hardly be contended that if no position had then been open for the appointment of the plaintiff he would in virtue of the President’s proclamation have been entitled to the position from which he had been removed. The charges upon final review were found to have been without merit. The record convinced the officers having charge thereof that a wrong had been done the plaintiff, and the righting of the wrong found expression in the publig proclamation of the President. The plaintiff’s removal was in effect set aside and he himself restored to eligibility in the Government service despite the lapse of time and whatever intervening obstacles obstructed his path by reason of the charges made against him. It did not and was not intended to convert his removal into a mere ■ suspension from duty. The legal effect was not to nullify his lawful removal, but to set it aside and render him eligible to again be appointed to the office from which he had been removed. An Executive act was indispensable, without which the plaintiff was ineligible for appointment to any position in the classified service.

The petition is dismissed. It is so ordered.

Hay, *Judge;*Downey, *Judge;*Barney, *Judge;*and Campbell, *Chief Justice,*concur.