National Republican., 1885-08-10

low. In that respect that officer in
to that requirement Of law is
himself the supreme court. His voice
IN that respect is the supreme voice Of
The law and the government. The gov
ernment chooses to express itself through
Lhe judgment of that officer. IL has en-.
lowed him with power to determine exi
yeDcies for the government. II has given
that power to no one else. IL has au.
lhorized no appeal TO any ono else, and
any one who bestows criticism upon his
conduct, so far as he acts within that ex-
igency and within his Judgment of the
exigency, is invading a place where he
has no legal right TO go. This question
has been settled. 1t is as much q rule of
law and a landmark in the Jurisprudence
Of this country as the capitol building is
a landmark. It's beyond question. In
IL Wheaton the court says that wherever
n statute gives discretionary power to
any person to be exercised by him upon
his own opinion of certain facts, IL is d
sound rule of construction that the stat.
ute constitutes him the sole and exclu.
sive Judge Of the existence of those facts.
That is the law and was long before
Chief Justice Marshall so declared 1t.
There is case also in II Peters where
they say the question Of fact before the
officer cannot be retired. will read a
few lines from that case:
II is presumption Of law that all public
officers, and especially high iunotionaries per-
form their proper official duties, until the con-
trary Is proved. Where, Rs In tho present
case. an act Is to be done or patent granted
F. Al Iae1
public officer, upon which ho is to decide. the
fact ho has done the oct or granted the patent
Is primd Jdeie evidence that the proofs have
been regularly mado and nre satisfactory, No
controvert the suiIicicncy of such proofs, if
laid before him, when tho law has made such
officer the proper judge of their suilicioncy
and competency
Here is an officer especially deputed
by law to make purchases. Those pur-
chases are to be made under certain cir.
cumstances. Whether the circumstances
exist or not, no other officer is authorized
to inquire. When the officer authorized
by law has inquired and decided, there
is no authority for anybody else to inquire
in regard to the matter.
THE NATURE OF AN ExIGENCY.
What is an exigency? Is it well.
defined group of circumstances that may
he brought out visibly to your observa.
ton? Not at all. An exigency, in the
very nature of its definition, rests in the
conception and judgment Of an officer.
The law does not say that certain facts
shall constitute an exigency. The law
does not define it. The court of claims
has said (vol. 2, p. 51):
An exigency exists when, from any cause II
Is necessary. for tho good of tho public service
that tho articles should be procured or services
performed without delay.
For any cause. donot know whether
this court approves of that definition or
not. 1t is made by court having juris-
diction to define an exigency. This
court may think that is an Uniformed
definition. But what of it? Is Pay.
master General Smith to be charged
here with not accurately defining an
exigency? lfso, and if this decision
when it reached the Supreme Court oi
the United States, had been reversed, the
court OF claims would be guilty of culpa
BILE ineificiency, according to the inter
probation given to that inelliciency il
this case. Any subordinate tribuna
whose judgment happens to be reversed
by higher tribunal may be charged
with culpable inefficiency in office, be
cause the Supreme Court of the United
States will not concur with it in defin
ing legal term.
SO that il should concede that Pay
master General Smith was guilty o
error in defining exigency, that does no
constitute culpable ineiiiciency in oflic,
or any element Of culpable ineliicienc,
in office. 1t does not take one step, M
matter how short or feeble, toward tn,
conclusion which they are urging here
Culpable inefiicency in Office cannot b,
constructed out of an erroneous opinion
of what the law means. The two thing
are as distinct as they well can be. |
they press this case through, and per
suade this court that each of tn,
statutes under which Gen. Smith acte'
has been enormously construed by Gen
Smith, they have not taken u single stel
toward proving culpable inefiiciency ii
Office nor have they taken the first steI
toward proving scandalous conduc
tending to the destruction Of goo,
morals. Scandalous conduct tending I,
the destruction Of good morals does no
reside in an erroneous judgment of tn
meaning of the law. To assert tha
scandalous conduct has such habita
ton and resting place is to mock tn
human mind. Ii is to pervert the Ian
guage. Mono of these things, if they b
conceded to have been shown, operat
in the slightest degree to establish thes
charges.
When men are after their pound O
flesh and are asking to sacrifice and de
stroy brother officer, and to that en-,
have gone into specifications so elabor
ate as these, let them be held and re
quired to stand upon them. The fir,
specification charges that Gen. Smit
knowingly violated the law. Is ther
any proof that he knowingly violate
the law2 Conversations between Gen
Smith aud certain persons have been in
troduced into evidence here concernin
the enlargement complained of, and o
cross examination asked each one o
them whether Gen, Smith said that h
believed that he had the power to d
what he was doing, and they all said b
did say so. Gen Smith himself swear
that he did believe then and now be
lieves that he had such power. Where
then, is the proof that he knowingl
violated the law. They have made hi
knowledge an element of the charge.
Can you take out OF mass Of charge
the essential and pivotal elements Of it
the germ, the central supporting fact
it--without leaving the whole charge
wreck? All these allegations are sui
ordinate to the fact at he knew he ha
no power to act. They arrange then
selves around the allegation that /
knew he was doing wrong; and yet Ii
proof is as clear as proof can be mao
that he knew right to tho contrary, b.
lieyed right to the contrary, 1t is we
settled principle Of law that you cann
take out of an oaenset the elements whiC
a -