12

In Ex parte Hennen, a case involving the validity of an ap pointment of a clerk of the district court of Louisiana by the district judge thereof, it was said by Mr. Justice Thompson, in speaking of the power of removal:

"In the absence of all constitutional provision, or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution."

And in speaking of the different language employed in the act establishing the Navy Department from that which was used in regard to the Department of State, the learned justice further remarked: "The change of phraseology arose, probably, from its having become the settled and well-understood construction of the Constitution that the power of removal was vested in the President alone, in such cases, although the appointment of the officer was by the President and Senate."

In Marbury v. Madison13 Chief Justice Marshall, in the course of his opinion, stated that: "Mr. Marbury, then, since his commission was signed by the President and sealed by the secretary

was finally passed after a long and able debate by that body, without any amendment on this particular subject. The Senate was, however, equally divided upon it, and the question was decided in favor of the bill by the casting vote of Mr. Adams, as Vice-President."

12 13 Pet. 230; 10 L. ed. 138.

131 Cr. 137; 2 L. ed. 60.

of state, was appointed; and as the law creating the office gave the officer the right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.” Commenting upon this implication that this officer was not removable at the will of the President, the Supreme Court, in Parsons v. United States, say: "Whatever has been said by that great magistrate in regard to the meaning and proper construction of the Constitution is entitled to be received with the most profound respect. In that case, however, the material point decided was that the court had no jurisdiction over the case as presented. The remarks of the Chief Justice in relation to the right of an appointee to retain possession of an office created by Congress in and for the District of Columbia, as against the power of the President to remove him during the term for which he was appointed, are not necessarily applicable to the case of an officer appointed to an office outside of such district. In the District of Columbia Congress is given by the Constitution power to exercise exclusive legislation in all cases. U. S. Const. art. 1, § 8, subd. 17. The view that the President had no power of removal in other cases outside of the District, as has been seen, is one that had never been taken by the executive department of the government, nor even by Congress prior to 1867, when the first tenure of office act was passed. Up to that time the constant practice of the government was the other way, and in entire accord with the construction of the Constitution arrived at by Congress in 1789."

In this case of Parsons the question was presented whether the President had the power to remove from office, before the expiration of his term, a district attorney who had been duly appointed under an act of Congress which provided that "District Attorneys shall be appointed for a term of four years and their commissions shall cease and expire at the expiration of four years from their respective dates." The court held that, viewing the statute in the light of legislative and executive practice for more than a hundred years, it was not to be held that Congress had intended, by

fixing the term of office to four years, to limit the power of the President to remove before the expiration of that time.

The Tenure of Office Acts of 1867 and 1869, which were repealed in 1886, did, in express terms, limit the President's power of removal, but these acts were passed under peculiar conditions of strife between Congress and the President, they never were brought before the court for the determination of their constitutionality, and all the dicta of that court since uttered, would indicate a present opinion at least, that the acts were void, that, in short, Congress has not the constitutional power to limit the President's power of removal from office those whom he has alone, or with the advice and consent of the Senate, appointed.

14

In Reagan v. United States it was implicitly held, however, that an officer appointed by the President by and with the advice and consent of the Senate under an act of Congress, is entitled to notice and a hearing before removal if by Constitution or statuie causes for removal are specified, or the term of office fixed for a given period. In this case the court held that in fact Congress had not affirmatively specified any causes of removal, but intimated, as said, that had it done so, notice and hearing would have been necessary before removal.

In Shurtleff v. United States15 the President's power of removal from office was again carefully considered. This case did not require the court to determine whether the President's power of removal was constitutionally exempt from the control of Congress, inasmuch as it held, by a rather strained construction, that when a federal officer has been removed from office by the President without notice or an opportunity to defend, it will be presumed that the removal was made from other causes than those specified by Congress, and that this being so, the officer so removed is not entitled to that notice and opportunity to defend to which he would have been entitled had his removal been based upon one of the causes specified by Congress as justifying removal. And, furthermore, it was necessarily held that the specification by Con

14 182 U. S. 419; 21 Sup. Ct. Rep. 842; 45 L. ed. 1162. 15 189 U. S. 311; 23 Sup. Ct. Rep. 535; 47 L. ed. 828.

gress of certain causes for which removal may be made, is not to be construed as declaring, or attempting to declare, that removal shall not be made for such other reasons as to the President may seem sufficient.

13

§ 699. Congress May Regulate the Removal of Inferior Officers. In United States v. Perkins it was held that when Congress by law vests the appointment of inferior officers in the heads of departments, it may at the same time limit and restrict the power of removal. The opinion, quoting with approval the Court of Claims, declares: "We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict and regulate the removal by such laws as Congress may enact in relation to the officers so appointed. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto. It follows that as the claimant was not found deficient at any examination, and was not dismissed for misconduct under the provisions of Revised Statutes, § 1525, nor upon and in pursuance of the sentence of a courtmartial to that effect or in commutation thereof, according to Revised Statutes, § 1229, he is still in office and entitled to the pay attached to the same."

§ 700. Injunctions to Prevent Removal.

In White v. Berry' it was held that, in the absence, at least of express statutory authorization, the courts will not grant a writ of injunction to prevent the removal of an officer from the classified service, even though such removal be in violation of the rules

16 116 U. S. 483; 6 Sup. Ct. Rep. 449; 29 L. ed. 700. 17 171 U. S. 366; 18 Sup. Ct. Rep. 917; 43 L. ed. 199.

governing that service as laid down by the Civil Service Act and an executive order issued in pursuance thereof. In other words, it was held that from the general executive power of the President is implied a power of removal from office, and that under this general power he may issue rules for the government of the executive departments with reference to removals, but that these rules are not imposed upon the President by law or by the Constitution, and that, therefore, if they be violated by the executive chiefs, with the President's approval, the person so deprived of office has no legal right to reinstatement.

§ 701. Mandamus to Reinstate in Office.

In Keim v. United States18 it was held that the action of the Secretary of the Interior in discharging a clerk in his department for incompetency was not subject to review in the courts either by mandamus to reinstate him or by compelling the payment to him of his salary. The court say:

"The appointment to an official position in the government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power.

"In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. 'It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.' Re Hennen, 13 Pet. 225; 10 L. ed. 136; Parsons v. United States, 167 U. S. 324; 17 Sup. Ct. Rep. 880; 42 L. ed. 185. Unless, therefore, there be some

18 177 U. S. 290; 20 Sup. Ct. Rep. 574; 44 L. ed. 774.