Evening star. [volume] (Washington, D.C.) 1854-1972, 1898-01-03
Important Decision Affecting the
Civil Service.
POWER OF DEPARTMENT HEADS
Morris keim's Petition for Rein
statement Dismissed.
A PPE AL TO BE KEN

The Court of Claims this morning rem
dered an important decision bearing on the
power of executive officers to dismiss their
clerks. The case will go to the United
States Supreme Court
The case is that of Morris Keim an old
soldier. and was begun over two years ago.
Mr.. Keim was honorably discharged from
the army in 1863 ny reason of disability "
May .. 1SSS, after examination by the civil
service commission he was appointed to a
clerkship in the Post Office Department
He transferred several times and on
March I. 1891. was a clerk in the pension
Office. His salary was reduced then from
S1,210 to $1.G0. July 81 1894 he was dis
charged and has not been able to secure
reinstatement. His discharge was rec
commended by Pension Commissioner Loeb
ren on the ground of inefticiency.
The Petition Filed.
Luther II. Smith and John C. CLANCY of
the District bar filed a petition in the Court
OF Claims two years ago for accrued salary
for Mr.. keim, and seeking by the petition
10 secure his reinstatement. The petition
set forth that under the law giving prefer
ence to soldiers and sailors Mr.. keim had
been wro1Sfnlly discharged, and brought
up the question of the right of head of a
department to make removals.
About year ago Col. John G.. Capers
the attorney for the government filed a
demurrer to the petition of Mr.. Kei!n but
the demurrer was temporarily uverruled
by the court that the case might be briefcd
and heard on the facts. The case was ar
gUed last July and has since been under
consideration by the court. In the mean
time courts throughout the country have
been rendering decisions on some OF the
same points involved
The decision today dismisses Mr. Keim's
petition. Justice Davis rendered the feci-
sion. which was conCurred in by Chief Jus
uce Mott. Justice Weldon concurred IN the
judgment pro fCrma that the case may be
decided by the Supreme Court Justice
Peele diSsented and Justice Howry took no
part in the decision of the case.
The Decision.
Justice Davis says in the decision. after
revie wing the circumstances of Keims dis
charge:
THE substantial point in the case con-
Germs the power of the court to examine
into the course of an officer of a principal
executive department of the United States
in advancing or degrading or dismssing a
subordinate who has entered the executive
service through the recommendation of the
civil service commission and who is also an
honorably discharged soldier.
Defendants assert that the plaintiff was
not sufficiently competent. This is denied
and an effort is made to show that he was
competent: that he was dismissed for other
reason than lack of sufficient ability and
that un any event he was not given the
preference to which on (otherwise) even
terms the former soldier is entitled.
The first question we have to consider
Is as to our power. May a court enter an
executive department. examine the acts of
the principal officer. inquire into his exer-
an
the witness stand. and investigate the rea-
sons which influenced the exercise of this
discretion?
The plaintiff seeks to show that other
clerks were less efficient than he. and that
these clerks Were retained while he was
discharged: but who is to decide as to this
efficiency. the superior administrative off
Ger. responsible for the efficient conduct of
his office, and dependent upon this for his
reputation and tenure; the officer presum-
ably competent and upright and ALWAYS
subject to still superior executive control
and legislative supervision: is he to decide
this, or are the courts?
The civil service laws provide for or
trance into government employ: they direct
that tother things being equaD the soldier
shall have preference. but some one in ;u-
thority must in each instance decide
whether the former soldier has placed him
self in such position of equality with his
colleagues as to be entitled to the statutory
advantage.
AS Il bfCdu prlnc1ple. the power to ap-
point implies the power to remove People
eX rel. Mccullough V. Cram. 36 N Y SUP
CT. 111II. The Supreme Court of the
United States tex parte Hennen. 13 Peters.
2:ip. Parsons V. L. s. 30 G.. C!s 222 and 1f7
L $. 32D have held:
There can he no doubt that these clerks
hold their office at the will and discretion
of the head of the department. 1t would be
most extraordinary construction of the
law that all these officers were to be held
during life. which must inevitably follow
unless the incumbent was removable at the
discretion Of the head of the department
The power 10 appoint has been limited
by the civil service laws; the power to
remove, however, remains unimpaire1 in
the executive except for this, that (othet
things being equaD the removing power
must retain the man who has served dur
ing the war as soldier; SO again We reach
the point of this case which (although
much else has been sa.dD simply is-who is
to decide?
IF the courts can evamine these aues-
tions. If every discharged clerk can by an
appeal TO the judiciary possibly override
his chief and be reinstated in an Office
for which his chief deems him incompe-
tent, the discipline of the departments Is
seriously impaired. In ChishoIm's case t2T
c. c., y. ~ this court held upon such
questions as these the executive officers
can alone decide; they questions of
discretion which in their nature belong
to those having the responsibility The
officers Of the government carefully
selected; the heads of the principal execu-
tive departments and of the important
bureaus are trained men of broad eXDeri-
ence and national reputation, 20 spare
them certain pressure and responsibility
AMI i'll an effort to improve the subordi-
rate civil service the statutes now under
consideration We're passed; but these stat
utes relate only to selection for appoint
mcnt. and do not touch upon the power
OF removal except that tother things being
equaD the soldier shall he retained.
The superior executive officer decides
as To the removal The law controlling
him IS the unwritten law of fairness, Just
ice. Kindness and honesty, and also tn.
written law that (other things being equaD
the soldier shall be preferred. The super
vision of this purely executive power is
not intrusted To the judicial branch of tn,
government OF the United States. Petition
dismissed
The attorneys for Mr.. Keim today SAID
that an appeal would be taken to the Su-
preIle Court.