The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-09-23
TEST OF CIVIL SERVICE
ARGUMENT OF THE TAYLOR CASE
BEFORE JUDGE BAKER.
Courts Hypothetical Question in Re-
gard to the Power of Marshal
to Hire Deputies.

Arguments were made before Judge
Baker, of the United States District Court,
in chambers yesterday upon the application
of Charles P. Taylor, office deputy in
the office of the United States marshal for
an injunction restraining Marshal Kerche-
val from removing him from office. The
bill of complaint, filed early in the sum-
mer, set forth the fact that Taylor was an
office deputy, that Kercheval was the duly
qualified marshal, and had threatened to
remove the plaintiff from office for no other
reason than that he was a Democrat. The
bill asked that an injunction might issue
restraining Kercheval from carrying out
this threat
Quite number of persons, mostly Dem
ocratic politicians and Democratic federal
employees gathered in the judges chambers
to hear the arguments. Roscoe o. Haw
kins, solicitor for the defendant, filed de-
murrer to the complaint and made one of
the clearest and most logical arguments
that has been made in an equity case for
long time. Mr.. Hawkins declared that
the demurrer was based upon these propo-
sitions:
/. The issue of this case cannot be tested
by injunction. The court of equity will is
sue an injunction only where there is
Threatened invasion of property rights, and
involved.
2. The court of equity will not concern
itself where there is an adequate remedy
at law. This is purely question of law,
and if the plaintiff has a grievance he has
recourse at law in the way of suit for dam
g. The judiciary will not interfere with
the internal affairs ofs the executive de-
partment Where there is a plain minis
terial duty to be performed, the court may
by mandamus compel its performance by
the ministerial officer; where an executive
officer threatens to officially perform an act
that is clearly beyond his province and
thus invade property rights, the court may
by injunction restrain him. But, where
there is discretionary power lodged with
the officer, the court will not interfere with
the executive branch of the government.
4. Under the act of 1885, regulating the
office of United States marshal, this plain
tiff is an employe of the marshal and not
an officer of the United States
8. The civil-Service act does not prohibit
removals from office, except in the single
instance that it forbids the removal of an
officer for refusal to contribute to a politi-
cal campaign fund. The Civil-service Com
mission has engrafted upon this law certain
rules, but this commission has no right,
under the statute, to legfSlate with the
force of law II the statute did give 1t that
right it would fall, for Congress has no
right to delegate the power to legislate to
any person, commission or board.
ATTORNEYS ARGUMENTS.
Mr. Hawkins did not multiply words
upon these propositions. The first PROPOSE
ton was an elementary one, and it was
self-evident fact that property rights were
not involved. The second proposition was
also elementary, and there was no neces-
sity of celebrating upon it before a court
where the distinction between actions in
equity and in law were so clearly drawn.
Upon the third proposition he cited some
authorities, showing the reluctance of the
courts to interfere with the executive de-
policy. Upon the fourth and fifth PROPOSE
tions he read the decision of Judge Barr,
of Louisville. in an exactly similar case,
and the decision of Judge Cox, of Washing
postal department sought an injunction to
restrain the postmaster general from re-
ducing him from a position of one grade to
q lower grade. Judge Barr, of Louisville,
held that the act OF 1896 did not change the
status of the deputy as employee of the
marshal Judge Cox held that the rules
made by the Civil-service Commission
could not have the force of law, and that
the power to appoint necessarily implied
the power to remove Mr. Hawkins also
referred to the decision of Judge Jackson,
of West Virginia who granted such an in
junction was here asked, on the ground
that an office deputy is, in reality, appoint
ed by the attorney general but Mr. Haw-
kins submitted that the weight of authority
as well as the weight of reason was on the
other side
Henry Warrum made the first argument
for the plaintiff He admitted the ele-
mentary propositions of equity stated on
the other side, but contended that this was
not a contention over the title to an office.
Mr.. Taylor had the Office and Mr. Kerchs-
val was threatening to remove him when
he was marshal did not confer any such
power. He also contended that there was q
property right in the Office, vested in MIR.
Taylor. and cited decisions to prove that
the holding of an office constituted a prop
erty right. He spoke in general terms of
the excellent purpose of the c.vil-service
law, and said that such decisions that
OF Judge Cox were an effort to knife the
law, to gut it.
tiff but most of his time was occupied in
answering questions by the court. He be-
gan with a statement Of the case, in which
he asserted that Taylor held a commission
to his office prior to that of the marshal
and was an Independent officer, appointed
by the attorney general The court inter-
rupted to ask just how that was, and his
question brought out the fact that the
statute authorizes the marshal to employ
these deputies upon the approval of the at
tOrney general. The question was some
what similar to that raised long ago Of
the right of the President to make remov-
ais without the consent OF the Senate.
There was contention said the court.
with much weight of authority that the
same machinery must be brought to bear
to remove as to appoint but the cohesive
power of public plumber so operated upon
the executive officers that that became an
In answer to the contention that the le-
gal remedy in q contention for an Office
was by quo warranto, Mr.. Holstein declared
that this was no contention over the title
to an office. They had the office and no
body else was claiming 1t. A man who had
no discretionary power in the matter was
threa tening to remove him.
COURTS HYPOTHETICAL QUESTIONS.
The court said: 1.-The statute confers
power on the marshal to hire certain off,
GERS under certain contingencies. If the
attorney general be authorized TO dis
charge, or if he and the marshal by con-
joint action be authorized to discharge.
the presumption in law is that whatever
the marshal does is approved by his SUI
perior officer, the attorney general. 1t
seems to me that the question Is a broader
one than you have stated. reducing itself
to whether the attorney general and mar
shall are powerless to make a change in
the office deputies of the marshal"
Mr.. Holstein 'Waiving the question of
civil-service laws. If there were no such
law. the attorney general would have the
right TO control
The court: THE question is even some