The times., 1897-09-15

Judge Cox yesterday rendered his decision
In the demurrer To the IN junction proceed
fags brought by John G. Woods against
ant Postmaster General Heath, TO enjoin
them from removing him from the office Of
superintendent of mails. Mr.. Woods set up
a claim that such removal would be
violation Of civil service rules. OF this
Judge Cox says
] shall be compelled TO hold that | have
no jurisdiction as court of equity to
eHgOln dbe Posi- master General ana hls
First Assistant from removing complain
ant from has POSITION. There is not en-
| tire unanImitA among the Federal Judges
upon tins subject. TWO, IL not thfse,
OF the Justices of the Supreme Court dls-
seHIeu from the oplniDn as houlceu
/ BY Justice Gray. And len years after
tue opinion was delivered ave tifid Justice
/ jackson ass erts the right OF inIuneIiye
reileT in case OF Attempted removal
| from the office of deputy marshal on lhe
] yers grounds of the present PeIIUIon.
ue decision oil thp supreme IoEFt hau
! no reference 10 bhe clylI service act, Tor
/ the office concerned III that Case ~ ar held
! under State authority. ana only related
! To the form of relief sought.
1t has seemed TO me that IL would be
more satisfactory if instead of denying
relief on the ground OF jurisdiction only,
should glNe some attentleh 10 lhe act IL
! sell and cOnslder whether, II jurisdiction
existed, Ihe complainant would be entl-
1 tied 10 relief.
The Constitution of the United States
! provides. -'lte the President small lave
power, with and by the auN1Ce ana consent
OF the Senate, TO make treaties, provided
twO-thiTas Oi UllUSe present CunseIiI, ANA lie
sliaii nOIhi4dle Aad uy ana Win Uhe adNiee
ana cons mt ~ tfe senate, sIldit apPJIHbatu-
basSauJ7s and other public ministers and
cOnSuiH Judges of the Supreme Court, ana
ali other officers OI the United states whose
appO' utnents are not otherN lse herein pro-
yiueu for: but lhe Congress may, by law,
invest the appointment OF otntr inferior
Officers in the courts OF law, the Pre- sident
or heads 0f det artmeuts.' There does not
appear 70 be any act Oi congress creating
the office ot superintendent OF mails, but
such Officers evidently were appointed by
the Postmaster General under his general
authority To conduct the business OF ils de-
purtm guI, and hi : authority was recognized
IN several appropriation acts
il may be assumed that under this legiS-
latlUu the Postmaster General was author
/ IZed to make these appointments, ana Ulat
. these Officers were OF the inferior class
whose app0lu tnlenUs could be yesbed b = Con
fress in lne aead OF tine department. II the
complainant isnot In Lnis category then, ds
Ire was not appointed by the IRE tsiuenti 1y
and WTUu TIE aGtiCP oil thc Senate, tie IS
holding his place without any authority at
law and has no standing ia this court The
subject Of atItou4u un4ents and reno Rath from
Office was recently discussed by tie su-
preme Court uf 1tFe United states IN the
case of Parsons As. the United States.
That was the case OF district attor-
ney for the United States who had been
appointed, usual, Tor -four years, and
removed bF the President within that
term. He denied the right OF the
President 10 remove, and entered suit
III the Court CT Claims for tile salary
which would have accrued TO him. and
upon an adverse decision appealed TO the
supreme count. That court held that tie
right Of reTHorei was an incident y the
| right OF appOin Jnent, and held that, al
though the appointment was with the al
vice and consent 81 the Senate, the APP
pointing power was IN the President, anu,
Z IN CunSe4 4uence, the right to remove was
his, aud tnat the designation OF four years
the term OF APPOINTMENTS was not de
signed to Eiye a term ttat should IN all
events last for four years, nut should re-
srtlct tie term 10 that Period, subject to
the pleasure uf the appointing power.
This was the case OF an appointment
by the President, bat the court also cited
4 and adopted anew ITS OrmeT opinion III the
case of IN re Henner. 3 Pet, 230, which
was the case Of clerk in the district court
Of louisiana VINO was removed by order
4 Of the cOur e. He appAedfor writ OF man
| damus commanding the district court
/ to restore HIM 10 office, and the whole
/ subject of appointment and removal
! was discussed. The court alter re-
ferring To the constitutional provision,
/ SAID. The appointing power designated
IN the latter Iart OF the section was
! department 10 which the OFFICER 10 be aD-
/ pointed most appropriately belongs. The
appointment OF CierEs 10 courts naturally
/ belongs 10 The courts OF law, and that
clerk Is one OF JAe Inferior officers con
/ UempIated by this sect4ol OF Uhe ConStitu-
! ti0a cannot be Questioned
All Offices OF winch The term is not
! fixed by the Constitution, or limited by
/ law, mus toe held during good behavior, or
! which ls the same rning in the eye Of The
1 law lIe' or mus be heid at the discretion
Z OF kOUue department OF Government re-
movable at pleasure.
I Ia cannot o. held uuat those offices which
have been denOWinated inferior offices
should he held for lie, and II removable
al pleasure Dy Wnom IS sHCn removal Ia De
maGeE In the absence Of statutory Fegu-
latiU1 al would seem TO be "a sound anI
necessary rule to consider tie power OF
removals as incident To the power Of
/ appointment. Had tie opinion stopped
! mere IL would nave been equally applicable
/ to clerks appointed by heads Of depart
ments.
But the court goes further ana refers in
express terms u Jue ueEI EIaruueHt a!ro. Ihey
1 say Power Is given TO the hfatIS Uf de-
paTtmeniE by law 70 appoint all necessary
clerks, and although no power TO remove
y expressly - ven Aet titere c4n ltF Ha
question that these ClerEs hold office at
tne pleasure Of mead OF the department.
/ Tt would, indeed, be remarkable To hold that
all these offices were To be held for life,
which must nC0ntes5ably follow unless the
! incumbent were removable at the discre-
/ ton Of tie head of the department.
/ II may Re regarded, Ihel, al the settled
/ law ina TIE power Of removal is Incl
dent To tine power OF appointment, and
any power " nich G0nfers upon the head Of
! a department the power OF appointment
! lps3 raCt0 conveys the power Oh removal
az efreclualiy as II that power were eX
/ pressly given by Jhe statute The power
! of removal II entrenched IN the law.
The acts Of Congress, therefore, author
iZing the appointment OF the complainant
as peCtUr OF mails Of themselves gave the
/ Postmaster General the power TO remove
him at pleasure, unless some other act Of
! Congress restricts this power.
And this brings Us TO The inquiry if
/ the civil service act = January 8. 1853,
affects the power of The Postmaster Gem
3 eTai TO remove a / pleasure. 1t noditees
( very materially the power of appoint
meut heretofore existing. but il Gees not
AFFECT the removing POWER, except in
one particular. no officer or employe of
4 the United States mentioned in this act