The times., 1898-01-04
POWER OF REMOVAL.
1t Is Lodged Solely in the Executive
officer.

OffIceF-
The court Of claims rendered a decision
I'm the case of Morris Keim yesterday
holding that the power OF removal of
Government employees resides in their
executive officer, and that the judicial
branch OF tie Government has no right to
interfere.
Chief Justice Mott, Justice Davis and
Justice Weldon eoncurred in the decision.
Justice Peele dissented and Justice Howry
held aloof from the case.
Norris Keim. a Federal soldier, was
honorably discharged from the. army in
1865 for disability. After examination,
according to the rules OF the Civil Service
Commission. Keim was, ON May ., 1888,
appointed a clerk in the Postoffice be
partment After several transfers be
tween various bureaus OF the PoStofriCe
Department he was transferred TO the
Department of the Interior and assigned
10 a clerkslip in the Pension Office. His
salary was reduced in March, 1894, from
Sl,2o0 10 81 .o00 and on July 31st, 1894,
he was dismissed on the recommendation
Of Judge Lochran, then Commissioners, OF
Pensions, as Inefficient
Mr.. Keinl, through his attorneys, Luther
r. Smith and John c. CLANCY, sought To
be reiBEtated, and filed, in the court of
claims, q petition for accrued salary In
the decision rendered as stated this le-
tition is dismissed. The decision of the
court in part follows:
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 depa rtment of the United States
in advancing or degrading or dismissing
Subordinate who has entered the executive
service through the recommendation of the
Civil Service Commission and who is also
an honorably disc harged soldier.
'.The first question we have TO consider
is to our power. May a court enter an
executive depa examine the acts of
the principal officer, inquire into his ex-
ercise of discretion, put him, in effect,
upon the witness stand and investigate the
reasons which influenced the exercise of
this disc Tetion?
''The civil service laws provide for en-
trance into Government employ: they di-
rect that tother things being equal) the
soldier shall have the preference, but some
one in authority must in each instance de-
eide whether the former soldier has placed
himself in such a position OF equality
with his colleagues as to be entitled to
the statutory advantage.
AS broad principle, the power to ap-
point implies the power to remove people
ex rel. Mccullough VS.. Cram, SO n. Y. Sup.
CT, lIl7). The Supreme Court of the
United States tex parte Hennen, l3 Peters,
230; Parsons VS.. u. S., 80 c. Cls., 222,
and l67: U. $. 324) have held:
= There can be no doubt that these
clerks hold their office at the viii and
discretion of the head OF the department.
1t would be a most extraordinary con-
struction of the law that all these Officers
Were TO be held during life; which must
inevitably follow, unless the inc umbent was
removable at the discretion of the head of
the department.
The power to appoint has been limited
by the civil service laws; the power 10
remove, however, remains unimpaired in
the executive except for this, that tother
things being equall the removing power
must retain the man who has served dur
ing the war as a soldier; 50 again we reach
the point of this case which (although
much else has been said simply is who is
to decide?
The superior executive officer decides
as 10 the removal. The law controlling
him is the unwritten law of fairness Justice
Kindness and honesty, and also the written
law tkat tother things being equal the
soldier ohall be preferred. The supervision
of this purely executive power is not in
trusted to the judicial branch of the Gov
eminent of the United States. Petition dis
missed"
Counsel for the petitioner gave notice of
appeal and win carry the case TO the
Supreme Court. 1t is believed that this is
the first case of this character 50 appealed.