Evening star. [volume] (Washington, D.C.) 1854-1972, 1897-09-14
CIVIL SERVICE LAW |

CONTINUED from First Page)
moval from Office was lately discussed at
length by the Supreme Court of the United
States QG9 U.S.R.. 32). That was the case
OF a district attorney of the United States
for the northern district of Alabama, who
had been appointed, as usual, for four
years, but who was removed from office
by the President within that term. He de-
MED the Presidents right to remove him
before the expiration Of his term and
brought suit against the United States in
the Court of Claims to recover the fees
which had accrued to the Office since his
removal and from an adverse judgment
he appealed to the Supreme Court. The
supreme Court, uponsa review of the deci-
sions, the debates in Congress and the
opinions of the Attorneys General reiterat-
ed the doctrine repeatedly asserted in all
departments of the government that the
right of removal from office was an in
cident of the right of appointment, and
held that although the appointment was
made by and with the advice and consent
or the Senate, the appointing power was
really with the President, and he had in
consequence, the right to remove: and,
further, that the designation of four years
as the term of the appointment was not
intended to give a term that should at all
events. last for that time, but to restrict
the term of service to that period, subject
all the time to the pleasure Of the ap-
power.
Another Citation.
THAT was the case of an appointment
by the President. But the court also cite
and adopt anew it's former opinion in the
case in re Hennen, 13 Pet 800 which was
the case of clerk of the district court of
louisiana who, after being appointed in
that court was removed from office by it's
order He applied to the Supreme Court
for mandamus commanding the district
court to restore him to the office of clerk
and the whole subject of appointments and
removal was discussed by counsel and the
court. The court, after referring to the
constitutional provision before mentioned
says: The appointing power here desig-
mated, in the latter part of the section
was no doubt intended to be exercised by
the department of the government to
which the officer to be appointed most APP
propriately belonged. The appointment of
clerks of court properly belongs to the
courts of law: and that a clerk is one of
the inferior officers contemplated by this
provision in the Constitution cannot be
questioned. Congress, in the exercise OF
the powers here given by the act of the
oath of September, 1885, establishing the
judicial courts of the United States (Storys
Laws So, y, declares that the Su-
preme Court and the district courts snail
have power to appoint clerks of their re-
spective courts and that the clerk for
each district court shall be clerk also of
the circuit court in such district
The Issue Stated.
again, after adverting to the circum-
stances of the petitioners appointment,
they say: Such, then, being the situation
in which the petitioner stood, the question
arises whether the district judge had the
power to remove him and appoint another
clerk in his place. The Constitution is
silent with respect to the power of removal
from office where the tenure is not fixed.
1t provides that the judges, both of the
Supreme and inferior courts, shall hold
their offices during good behavior. But no
tenure is fixed for the office of clerk. Con-
gress has by law limited the tenure of GER
tain offices to the term of four years @
Story, 1880, but expressly providing that
the officers shall, within that term, be re-
movable at pleasure, which, of course, is
without requiring any cause for such re-
moval. The clerks of the court are not in
cluded within this law, and there is no ex-
press limitation in the Constitution or laws
of Congress upon the tenure of Office. Ali
offices of which the tenure is not fixed by
the Constitution or limited by law must be
held either during good behavior or (Which
is the same thing in contemplation of law
during the life of the incumbent, must
be held at the will and discretion of some
department of the government, and SUBJ
ject to removal at pleasure. 1t cannot for
a moment, be admitted that it was the in
tention of the Constitution that those
offices which are denominated inferior Offices
should be held for life. And if removal at
pleasure, by whom is such removal to be
made? In the absence of all constitutional
provision or statutory regulation, it would
seem to be sound and necessary rule to
consider the power of removal as incident
to the power of appointment
Wider Scope Given.
Had the opinion stopped here, 1t would
be equally applicable to the case of clerks
and other employees appointed by the heads
of executive departments, because the lat
ter are placed upon the same footing with
the courts in the article of the Constitu-
ton which authorizes Congress to vest the
appointment of inferior officers in the
President alone, in the courts of law or
the heads Of departments. But the courts
go further and refer in express terms to
the departments also.
They say: In all these departments
power is given to the Secretary to appoint
all necessary clerks Il Story, 46), and, al
though no power to remove is expressly
gwen. yet there can be no doubt that these
clerks hold their office at the will and dis
erection of the head of the department. 1t
would be most extraordinary construc-
ton of the law that all these offices were
to be held during life, which must newt
ably follow, unless the incumbent was re-
movable at the discretion of the head of
the department. The President certainly
mas no power to remove. These clerks fail
under the class of inferior officers, the
appointment of which the Constitution M
thoriZes Congress to vest in the heads of
the departments. And the Constitution has
authorized Congress, in certain cases. to
vest this power in the President alone in
the courts of law, or in the heads of de-
partments, and all inferior officers appoint
ed under oath, by authority of law. must
fold their offices at the discretion of the
appointing power. Such Is the settled
usage and practical construction of the
constitution and laws under which these
offices are held ~
The Deductions.
III an act Of Congress, presumed to he
approved by the President, vests in the
judges or heads Of the departments author
ty to appoint subordinate officers, then. by
constitutional authority, the power to an
point them is taken away from the Presi
cent; and 1t follows, according to this case
mat the power of removal would be equally
taken away. The President might dismiss
the head of department who would refuse
al MS request to dismiss subordinate or
inferior officer, but would have no mower
directly to dismiss such officer himself
IT may be regarded, then, as the settled
law that the power of removal is incident
70 the power of appointment, and. there
fore. that any law which confers upon the
head of department a power of appoint-