#### ARTHUR S. KELLOM v. THE UNITED STATES.

[No. 33235.

Decided March 1, 1920.]

*On the Proofs.*

*Post Office Department; removal of employees; delegation of authority by Postmaster General.*— Under section 161 Revised Statutes authority was properly delegated to the First Assistant Postmaster General by section 17 of the Postal Laws and Regulations issued by the Postmaster General to dismiss letter carriers from the Government service. The First Assistant Postmaster General having first complied with all the requirements of the act of August 24, 1912 (37 Stat., 555), his dismissal of the plaintiff and the approval of his action by the Postmaster General Is final, and the court has no jurisdiction to review his action.

*The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiff. *King c& King*were on the briefs.

*175The grounds on which this claim is asserted are:

1. The removal was illegal and void because not made upon charges and an opportunity to answer.

2. It was also void because it was not made by proper authority, the Postmaster General, but only by a postmaster.

3. The presidential order of April 21, 1915, was a complete acquittal by the highest executive authority of the charges upon which he was removed and rendered the removal void from the beginning.

It was held by the Supreme Court that a removal corresponding to that in this case was unauthorized and void. A presidential order corresponding closely to the subsequently enacted provision of statute is thus quoted and construed in *United States*v. Wichersham, 201 U. S., 390, 398:

“ He was, therefore, entitled to the protection of the President’s order of July 27,1897 (14 An. Rep. Civ. Serv. Comm., 133) : ‘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.’ If the contention of the Government is correct, and the attempted suspension by the surveyor general was equivalent to a dismissal from office, such action would run counter to the requirements of the presidential order just quoted. The action of the surveyor general was not upon written charges, and no notice or opportunity to make defense was given to the accused, as provided in that order. The appellee being entitled to the protection of this order, and to have notice of the charges preferred, and an opportunity to make defense, the attempted removal, if such it was, was without legal effect ; nor can we find any authority, statutory or otherwise, authorizing the suspension in the manner undertaken in this case.”

The court took occasion to approve the decision of this court in *Lellmann*v. *United*States, 37 C. Cls., 128, which holds this doctrine.

In *Priddie*v. Thompson, 82 Fed., 186, an attempt by a marshal to remove a deputy was stayed by injunction on the ground that the officer was protected in his position by the civil service laws and rules and was not subject to removal by the marshal.

*176In *Butler*v. *White,*83 Fed., 578, it was held that when a local internal revenue officer attempted to remove a gauger and storekeeper from his position his act, being in violation of the civil-service regulations, could be prevented by injunction.

In *United States*v. *Postmaster of*Buffalo, 221 Fed., 687, it was held that a letter carrier by virtue of his appointment under the civil service acquired rights of which under the law of 1912 he can not be deprived without process of law.as provided by that act.

In three separate cases this court has decided that an order of the First Assistant Postmaster General undertaking to remove a letter carrier from office is unauthorized and void: *Gorcoran*v. *United*States, 38 C. Cls., 341; *Steele*v. *United*States, 40 C..Cls., 403; and *Beuhring*v. *United States,*45 C. Cls., 404.

Much less can a mere order of a postmaster be effective to remove a letter carrier from office.

In *Northern Pacifle Railway*v. Mitchell, 208 Fed., 469, 472, 473, 474, the court said:

“ It is also well settled that the President may act through the heads of the different departments, and if the head of one of the executive departments acts it will be presumed in the absence of evidence to the contrary that he acted by direction of the President. *Wilcox*v. *Jackson,*13 Pet., 513; *Scott*v. *Garew,*196 U. S., 100.

“ But, so far as I am advised, no such power has been delegated to other subordinate officers of the Government, whether civil or military, and the acts of such officers, without authorization from the President or from Congress, are ineffectual for any purpose.”

“Although the court will presume that the head of a department acts by direction of the President, in the absence of evidence to the contrary, this presumption does not extend down the line to all civil and military officers of the Government of whatever grade. The effect of a similar order was considered by Judges Sawyer and Deady, of the Circuit Court for this.Circuit, in *United States*v. *Tichenor*(C. C.}, 12 Fed., 415, and in answer to the contention how made the court said:

“ ‘ It may be admitted, as suggested in *Wilcox*v. *Jackson,*13 Pet., 513, that if the order directing the reservation to be made had been issued by the Secretary of War, the head of *177the department through whom the President would speak and act upon the subject, in the absence of evidence to the contrary, it would be presumed that he acted by the direction of the President.’

“ The above language was quoted by the Supreme Court of the United States with apparent approval in *Scott*v. *Garew, supra.”*

The presidential reinstatement as an order became effective not only in the future but operated as an acquittal from the beginning. Its terms are not satisfied by a mere reinstatement in the future. They specifically find the untruth of the charges on which the letter carrier was removed; that they are not borne out by the facts recently developed; that they were the result of prejudice on the part of the former postmaster, and, possibly, the post-office inspector who conducted the case; that an injustice was done; and that the offenses charged against plaintiff, even if true, were not such as to justify so severe a punishment as that inflicted. It would be hardly possible for a presidential order to go further in finding the innocence of the claimant.

This exact point was decided by this court in the *Lellmami*case, 37 C. Cls., 128, which, as we have stated, received the full approval of the Supreme Court in the *Wichersham*case, 201 U. S., 390. There a clerk in the office of the surveyor general’s office at Idaho was suspended without just cause by the local officer. The Commissioner of the General Land Office investigated the charges, revoked the suspension, and ordered the claimant reinstated. It was held that the revocation invalidated the suspension and that the clerk was entitled to the salary of his office during the period of suspension.

The Postmaster General’s report can not be accepted as a construction of the presidential order. It was written after the case was brought into this court and as an argument against the claim. Such departmental letters, so far as they state facts shown by the official record of the department, are. admissible and valuable evidence. They can not be used, however, as evidence of facts beyond the official records of the departments, and especially after a case has become a litigated matter. *Brannen*v. *United*
      *178
      *States,*20 C. Cls., 219. The presidential order speaks for itself and it must be construed in the light of the facts which preceded it and of its own terms.

*Mr. Harvey D.*Jacob, with whom was *Mr. Assistant Attorney General Frcmlc Davis, jr.,*for the defendants.

Booth, *Judge,*

delivered the opinion of the court:

The plaintiff was a city letter carrier attached to the post office at Chico, California. His salary was $1,100 per year. On August 24, 1912, the postmaster at Chico preferred in writing a number of charges against the plaintiff, involving various derelictions, which he thought sufficient to result in his removal. On August 27th the plaintiff answered the charges, and the controversy thus reduced to issue was duly forwarded to the First Assistant Postmaster General at Washington. An investigation through the instrumentality of post-office inspectors followed, resulting finally in a written order signed by the First Assistant Postmaster General dismissing the plaintiff from the service. A written notice to this effect was dispatched to the local postmaster on November 1, 1912. Later, on December 7, 1912, the action of the First Assistant Postmaster General was officially approved by the Postmaster General. Almost three'years later, through the persistence of the plaintiff and his friends, the plaintiff’s case was again reviewed by the Postmaster General, resulting in the Executive order of the President, set forth in Finding IV, whereby plaintiff was reinstated in the classified service. Subsequent to this order the plaintiff was reinstated as a substitute carrier, his reinstatement dating from May 19, 1915. It so happened that there was nothing for him to do as a substitute carrier at the Chico post office,. so he was reinstated as a regular letter carrier and assigned to duty in the post office at Sacramento, California, on August 1,1915, but at a reduced salary, viz: $800 per annum.

The plaintiff’s suit is for the full amount of his salary from November 5, 1912, the date when he was officially detached from the service, to August 1, 1915, and the further sum of $290.16 the difference between' the salary he was receiving at the date of his dismissal and the salary of $800 per annum paid to him subsequent to his transfer to Sacramento *179until July 1, 1916, when his former salary of $1,100 was restored.

The plaintiff’s case rests upon an alleged illegal removal from office, and in view of the decisions of this court involves but a single issue; that is, Did the First Assistant Postmaster General have power and authority under the law to dismiss him or must it have been done by the Postmaster General himself?

It was conceded on the argument of the case that this court was without jurisdiction to review the record or otherwise pass upon the same, as made up under section 6 of the act of August 24, 1912, 37 Stat., 555, involving the written accusations and answers thereto. If the statute was in this respect complied with, jurisdiction to consider the truth or falsity of the charges and weigh the testimony with respect thereto belongs to the proper officials of the proper department and not to the court. The proof shows a full compliance with the statute in this respect; and if the First Assistant Postmaster General was the proper official under the law to act, or if he did act and his official orders were subsequently approved and ratified by the Postmaster General, then the plaintiff was legally removed and can not recover. The President’s Executive order of April 21, 1915, did no more than reinstate the plaintiff in the classified service. *Eberlein*v. *United*States, 53 C. Chs., 467.

Section 161 of the Revised Statutes provides:

> “ The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”

Acting in accord with the above law, the Postmaster General did, by section 17 of the Postal Laws and Regulations, effective November 1, 1912, assign to the First Assistant Postmaster General full jurisdiction of the Free Delivery Service, including city and rural delivery carriers.

In *McCollum*v. *United*States, 17 C. Cls., 92, the late Judge Richardson had before him an issue identical in character with the one in suit. Speaking to the subject, he used this language:

> *180“ In several of the executive departments the statutes provide for assistants to the heads thereof, and also assistants and deputies to the heads of some of the bureaus. * * * The duties of these assistants are generally not specifically defined by law, but are left to the direction and regulation of superior officers. Such assistants are supposed to have the confidence of those immediately above them and to be officially engaged- in carrying out the will of their principals in the details of the work of the department or bureau in which they are employed. When their acts, decisions, or directions are reduced to writing, signed by them in their official capacity, filed or recorded among the archives of the department, and do not appear to have been revoked, annulled, or modified by the head of the department or bureau, they must be held, in the absence of fraud, mistake, or irregularity, to have been done within the scope of the authority of the assistants and to be as binding on the Government as though expressly ordered by the superior. Especially is that so when copies of such written documents are sent to this court by the head of the department in which they are found without objection on his part to their having been made in the due and regular course of business under his control.”

The McCollum case involved an inference of authority from an official act by a subordinate officer. In the instant case an express statute authorized the division and distribution of departmental affairs by the head thereof, and a positive regulation conferring the alleged lack of authority to so act. In addition to this the action of the First Assistant when brought before the head of the department for approval received the official approval of the Postmaster General himself.

It is not, we believe, necessary to dwell longer upon the issue. If the Postmaster General can not authoritatively act through his First Assistant in a matter referred to him by regulations, not inconsistent with law, but in accord therewith, then the countless details of a large and increasing department would be quite beyond the range of physical performance, and public business therein be in impossible confusion. The First Assistant Postmaster General, within the scope of his authority, acts for the department, and unless some positive law inhibits his action, or makes the personal action of the Postmaster General imperative, his conduct is binding upon the department and those dealing with him. *181The law creating tbe offices of assistants to the Postmaster General and providing substantial salaries for the incumbents is a sufficient refutation of plaintiff’s contention, in the absence of a citation to some express statutory authority to the contrary. *Parish*v. *United States,*100 U. S., 504.

The petition is dismissed. It is so ordered.

Gbaham:, *Judge;*Hat, *Judge;*DowNey, *Judge;*and Campbell, *Chief Justice,*concur.