Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-12-24
CLERKS. TENURE OF OFFICE
A Discharged Veterans Suit in the Court
of Claims.
The Right of the Head of II Depart
mcnt to Remove an EmplOye
Questioned.

The Court of Claims heard arguments
yesterday on a unique case. The questions
involved never have been before any court
in the country. =
Briefly stated, the question at issue was
whether the head of a department has a
right to discharge a clerk from the
ployment of the government, notwithstand-
ing the clerk has previously passed civil
service examination and was entitled to
preference for service because he was an
honorably discharged soldier: from the,
United States army.
The arguments We're on demurrer to
petition of Morris keim. The petition
filed in the Court of Claims October I. 1t
states that Kem is a citizen of the coun-
try. residing at Farmwell, Loudoun county,
Va; that on the 2Gth day Of August, 1862,
he enlisted in the military service OF his
country and served faithfully until The 18th
of April 1860, in the 18TH New York
volunteer infantry, when he was discharged
by Gen Thomas on the resimental sur
geon's certificate of disability from disa
bilities contracted from excessive labor
While under military orders at Chattanoo-
ga" that May Z, 1883, he passed an eX
animation before the civil service commits
sion and was appointed to a clerkship in
the Post Office Department at a salary of
$500 year: that he was transferred to the
Treasury Department. and then, March l6,
getting a cerkship in the pension bureau
at a salary of $1,000 year; he continued
to hold this position until March, 1894,
when his salary was reduced to $1,000
year; he served at this salary until July
81. 1891, when he was formally dis
charged
keim's Claims.
Keim claims two causes of action against
the government. The first is for S39.23 un-
paid for his services for the month of July,
1894. The second is for his salary from
that time until October, 1895, making a
total claim against the government of
81 ,2O5.S9 %. His grounds for asking his
salary from the government. while not in
its employ, are that he was discharged
without cause, and while fully competent
to perform his duties, and that under the
Statutes of the United States, giving pref
erence to a federal soldier, he should have
been kept. He declares that he is able TO
prove his efficiency.
Upon the filing of the petition Assistant
United States Attorney John c. Capcrs.
representing the Attorney General. filed a
demurrer. alleging that there was no
ground for cause. The claimant is repre-
scented by Luther r. Smith and CLANCY &
Garrison.
The attorneys for the claimant rely al
most wholly upon section 1874 of the Re
vised Statutes, and the supplemental stat
utes thereto. The statute referred to says
that persons honorably discharged from
the military or naval service by reason of
ilSdDlllly resulting from WOUNDS OF SICK
ness incurred in the line of duty shall be
preferred for appointments to civil offices,
provided they are found to possess the
business capacity necessary for the proper
discharge of the duties of such Offices"
The supplemental statutes provide that in
diminishing his forces reducing the
grades the head of department shall take
cogniZance of whether a man is dis
charged Union soldier.
The Arguments.
Assistant Attorney Capers, for the gov
eminent, takes the ground that the head
of a department IS the sole judge of the
competency Of person in his employ. He
contends that neither the courts nor Con-
greSS could regulate or dictate the cXecu-
tive action of the heads of the departments
in the removal of employees If Ihcy could
the courts and Congress would become ex-
ecutive branches of the government. He
quoted the Hennen case, in which it was
decided that the power of removal was
incident to the power of appointment He
cites many other cases to snow that the
head of department is the sole judge of
the ability of employe. In concluding
his argument he said that If the court
were to grant the petition and give the
claimant the full amount of his salary for
all the time since his discharge, It would
have to hold that the law providing for
preference to be shown federal soldiers and
sailors created a contract between the gov
eminent and soldier or sailor In the ma ture
of a life tenure to Office. Such a state of
affairs, he said, would create a branch Of
the pension service wholly Lnr2coSniZeI at
this time
The claimants attorneys argued that If
the petitioner was not entitled to the
money sued for the laws under which he
engaged his services We're meaningless and
idle. They not only cited the sections of
the statutes given. but referred coplously
to the civil service laws. Which were sup
posed to decide mans qualifications to
Office without leaving it in the hands Of the
head of a department. They Cuntended
that executive officer may reduce the
force under him whenever in his Judgment
it is wise to do SO, but he must hot reduce
that force at the expense of a Union SOL
der. The question of a mans qualifica-
tons must not be left to "the caprice of an
executive officer
It will thus be seen that the case involves
highly interesting point, and should Mr.
Keim win, there is no telling how far