Evening star. [volume] (Washington, D.C.) 1854-1972, 1897-09-14
Power to Appoint Confers Power to
Remove Subordinates.
DECISION In WOODS vs.. GARY
Full Text Of the Opinion Rendered
by Justice Cox.
GOVERNM MENT SUSTAINED


master General and First Assistant Post
master General Perry S. Heath. holding
that, notwiths tanding the civil service act
of January 16, 1888, and the rules and regu-
lations made Hereunder, the power to ap
point lodged in the heads of the executive
DIT partments of the government confers in
them the power to remove. The court held
further that the only prohibition on such
executive officers of the government in the
matter of removal of inferior officers is that
no one shall be removed for refusing to
make political contributions.
The decision of Justice Cox which was
fCreshadowed in The Star several days
ago. was listened to by a throng which
well filled the court room. and during the
baif hour occupied in delivering his opinion
he was given the closest attention by the
members of the bar, the government Off
ei1ls and tha many others present. In his
opinion Justice Cox closely followed the
argument of District Attorney Davis who
submitted that the civil service act and the
rIies and regulations made Hereunder if
eIiorced, would be an interference by the
legislative with the executive branch of
the government. The court also sustained
tie contention of the district attorney that
JOIN the defendants from removing the
complainant.
Text of the Opinion
The opini n of Justice Cox, which fully
sets forth the facts and contentious In the
case. is as follows:
The bill and amended bill in substance
set forth that in June, 1893, the complain
ant was appointed superintendent of mails
at the post office in Louisville, KY and
has ever since held the office and DISCHARGED
the duties of the same and is still in pos
session of II, and it is worth to him more
than $3.50; that without there having been
any complaint charges made against
hin, and without giving him any notice of
az such charges or an opportunity to be
nerd in relation thereto. the defendants
have .ssued an order removing him from his
san position of superintendent of mails and
appointing one O'Donnell in his place; that
such proceeding is contrary to the civil
service rules promulgated by authority of
the act of January IT, 1883. known as the
civil service act, one of which, of the date
OF November ? 1896. being clause three of
Rlie =, provides that No person in the
executive civil service shall dismiss or
cause to be dismissed, or make any at
teilpt TO procure the dismissal of or in any
ma nner change the official rank or COM
pe-sation of, any other person therein be-
cause of his political or religious opinions
OF affiliations
Another Clause.
Another of which, dated July p. 1873.
added the following to the foregoing viz.
No removal shall be made from arv nosi
tien subject TO competitive examination ex-
cept for Just cause and upon written
eh9rses hled with the head of the depart
mSnt or o,her appropriate officer, and of
winch the accused shall have full notice
and an opportunity to make defense
Inc compiaiEants office is within the
ciassiled executive civil service of the post
Once service of the United States and
subject to competitive examination and
complainant believes and. there fore
charges that the sole ground of the at,
tempt TO remove him Is that he is a demo-
crat. and it is intended to appoint a re-
publican to succeed him. He therefore
asks an injunction against the proposed
action Of the department. A demurrer
was hled on the part of the defendant
Question of Jurisdiction.
On the authority of parte Sawyer,
124 U. s.. 200. and the cases therein cited.
l shall be compelled to hold that i have
no jurisdiction as court of equity to en-
join the Postmaster General and the as
sistant postmaster general from removing
the complainant from his position
Ihere Is not entire unantmity among the
FEDERAL judges on this subject. Two if not
three of the justices of the Supreme (,ourt
dissented from The opinion as announced
by Justice Gray, and ten years after thai
opinion was delivered we find District Judee
Jackson asserting the right Of com
plaina1t TO injunctive relief in a case of
attempted removal from the office of
deputy marshal on the very grounds of
the present application
The decision of the Supreme Court had
10 reference to the civil service act for
the Office involved in that case was held
under state authority and only related 10
the form OF the relief sought. 1t has
seemed to me that il would be more salts
factory that. instead of denying relief on
the ground Of jurisdiction only i should
give some attention to the civil service act
itself, and consider whether If jurisdic-
tion existed, the complainant would be
entitled to relief
Constitutional Provfsion,
Fhe Constitution of the United States. in
article 2 section 2. clause 2. provides: He
tthe PresidenD shall have power by and
with the advice and consent of .he Senate
to make treaties. provided two-thirds of
the senators present consent: and he shall
nominate and. by and with the advice and
consent OF the Senate. shall appoint am
bassadors, other public ministers and con-
suis. judges of the Supreme Court and all
other officers of the United States whose
appointments are not herein otherwise pro-
vtded for. and which shall be established
by law. but the Congress may by law vest
the appointment of such inferior Offices as
they think proper in the President alone
in the courts OF law, or In the heads of
departments
There does not appear to have been
any act OF Congress specially creating the
ofhce OF superintendent of mails but such
officers evidently We're appointed by the
Postmaster General under his general au-
thority TO conduct the business of his de-
partment, and his authority was recog-
nized in several appropriation acts Thus
In the appropriation act of 1889 chapter
3Ii % statutes. page $40, there Is an ap-
preparation for superintendent of mails.
salary not exceeding 45 per cent of the
salary of the postmaster. and also for
assistant superintendents. And in a pre-
vious year, 1878, there was an appropria-
tion for nine assistant superintendents of
railway mail service, who shall receive
each 4 salary of $500. co Stats, I40)
Authority for Appointments.
1T may be assumed that under this legis-
latton the Postmaster General was author
lied to make the appointments, and that
those officers were of the class of inferior
officers whose appointment could be vested
b. Congress In the head of the department
If the complainant Is not In this category
then, as he was not appointed by the
President by and with the advice and con-
sent of the Senate. he Is holding his place
Without any authority of law, and has no
standing in court.
The subject Of appointments and re-
Continued on Eighth Page.)