
    FERDINAND N. SHURTLEFF v. THE UNITED STATES.
    [No. 21524.
    Decided January 28, 1901.]
    
      On the Proofs.
    
    The statute provides that general apin-aisers of merchandise “may be removed from, office at any time by the President for inefficiency, neglect of duty, or malfeasance in office." The Secretary of the Treasury informs an appraiser that “the President deems it his duty to malee some changes in the personnel of the board," and requests his resignation. The appraiser refuses and demands a copy of any charges preferred against him and an opportunity to be heard in his own defense. The President thereupon removes him from office and appoints his successor, who is subsequently confirmed by the Senate. The claimaint sues for the salary of the office.
    I. The Act 10th June', 1890 ( 26 Stat. L., p. 136, § 12) provides that general appraisers of merchandise shall be appointed by the President with the advice and consent of the Senate, and that they “may he removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office.” The method of ascertaining such causes is within the discretion of the President and no legal liability attaches to the Government for the failure of the President to assign the particular statutory cause for which he removes an appraiser.
    II. Where the record shows that the President deemed it his duty to make changes in the board the court must assume that the changes were such as were prescribed by law and that the President was guided by the statute prescribing the grounds upon which the officer might be removed.
    
      The Sejporters’ statement of the case:
    The following are the facts in the case as found by the court:
    I. July 22, 1890, the claimant, who had been nominated on the llth dajr of that month to be one of the general appraisers of merchandise under act of June 10,1890, chapter 407, which nomination was consented to on the following day by the Senate, was commissioned to be such general appraiser of merchandise, He accepted said office and took the oath required to qualify him to discharge the duties of that office on the 24th day of July, 1890.
    II. Under instructions from.the Treasury Department the claimant met the other members of the board, for the purpose of organization, August 1,1890; and from that date continued to perform the duties and discharge the functions of a general appraiser of merchandise, without let or hindrance prior to May 15, 1899, up to which last-named date he has been paid the salary attached by law to that office.
    III. January 17, 1899, a letter was addressed to the claimant, as follows:
    “Treasury Department, • “Secretary Division of Appointments,
    “ Washington, D. G., January 17, 1899.
    
    “Sir: The President deems it his duty to make some changes in the personnel of the Board of General Appraisers. With this in view, he directs me to request you to send to him your resignation, to take effect at his pleasure.
    “Respectfully, yours,
    “L, J. G-age, Secretary.
    
    “Mr. Ferdinand N. Shurtleff,
    “ United States General Appraiser,
    
      “N*u> York, K Y.”
    
    To which request the claimant refused to accede, and demanded that he be furnished with a copy of any charges preferred against him, and that he be given an opportunity to be heard in his own defense.
    Thereafter the claimant continued to perform the duties of his office, and on May 3,1899, the following communication was addressed to him:
    “Executive Mansion,
    ‘ ‘ Washington, D. G., May 3, 1899.
    
    “Sir: You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor.
    “William McKinley.
    “Mr. Ferdinand N. Si-iurtleff,
    “ New York, JST. Yn
    
    IY. The claimant has never resigned said office, nor acquiesced in any attempted removal therefrom, but he claims still to be a general appraiser of merchandise, and to be entitled to the salary attached to that office.
    Y. The claimant has never been notified or informed of any charges made against him, either of inefficiency, neglect of duty, or malfeasance in office, and knows of no cause for his removal from said office having been ascertained or assigned by the President of the United States.
    VI. Since qualifying for and entering upon said office the claimant has not been engaged in any other business.
    VII. Ever since May 15,1899, claimant has been ready and' willing and offered to discharge the duties of said office.
    VIII. Claimant has not been paid any salary attaching by law to said office since May 15, 1899.
    IX. Claimant has made (monthty) demand upon the Treasury Department for the salary attaching to said office, from May 15 to November 1, 1899, which demand has not. been complied with, but denied. X. On May 2, 1899, an appointment was made during the recess of the Senate to fill the vacancy caused by the removal of claimant from the office of general appraiser of merchandise, said appointment to bo in effect until the end of the next session of the Senate of the United States. The appointee under that commission took the oath of office and entered upon the duties thereof on May 12, 1899, and has received pay as such officer, beginning on May 16, 1899, up to the present time. On December 15, 1899, the said successor was nominated to the Senate, and the nomination to that, office was confirmed on January 17, 1900. Said successor was commissioned bjr the President, under said confirmation, on January 22, 1900. He took the oath of office under said appointment on Januaiy 26, 1900, and since that time has remained in the office to which he was so appointed.
    XI. If the claimant is entitled to recover on the foregoing facts, the amount due is 13,224.29.
    
      Mr. Edwin B. Smith for the claimant. Mr. Jolm G. Oa/r-Zfó'ifewas on the brief:
    1. President’s power to remove, without consent of the Senate, officers whose terms the creating statute does'not fix, has never been judicially decided, and is still debatable.
    2. The power of Congress to fix the tenure of, and determine the causes for removal from, such inferior offices as it may establish has never been denied, but repeatedly affirmed. (Marbury v. Madison, 1 Cr., 162; West Ewer v. Bio;, 4 How., 548; 1 Kent’s Com. (12th ed.), 310, Holmes’ note; McAllister v. United States, 141 U. S., 175; 2 Story on Const., § 1537”; 12 C. Cls. K., 215; 102 U. S., 437; 13 ibid., 455; 100 ibid., 680; 14ibid., 462; 103 ibid., 235; 20 ibid., 438; 116ibid., 485; and many cited State cases, ex. gr. St. v. Hcmkins, 44 Ohio, 114; Dist. Atty. 7 Fed. Cas., 737.)
    3. Tenure-of-office act an example. See opinions of ablest lawyers in debate thereon.
    4. Administrative act of June 10, 1890, limits power of removal to (1) inefficiency, (2) nonfeasance, and (3) malfeasance. (Biggs v. Oregon, 17 Oreg., 651; Marbury v. Madison, 1 Cr., 167; Peoples. Gere, 92 N. Y., 198; People v. Fire Gom., 72 id., 448; People v. Oommrs., 106 id., 68.)
    
      5. Removal can only bo for an assigned cause; the act of removal assigning therefor one of those causes specified in the law. (Diillam v. Willson, 53 Mich., 402, and citations there found. Gom. v. Slifer, 25 Pa. St., 28; State v. Hawkins, 44 Ohio, 115.)
    6. Officer is entitled to notice of charges, and hearing-thereon, before being removed, where statute limits the power of removal to misconduct or “cause.” (Dullam v. Willson, 53 Mich., 408, per Cooley, Ch. Just.; Biggs v. McBride, 11 Oreg-., 651, and other cases cited above.)
    I. Petitioner ivas a de jura officer entitled to salary; no vacancy having been created by an unauthorized attempt at removal. (Belcher, 34 O. Ols. R., 422; Romero, 24 id., 331; Kimherlin v. , 130 Ind., 121; St. v. McFfeeley, 24 La. An., 19; Johnston v. Wilson, 2 N. H., 203, bot.)
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Praclt) for the defendants:
    We think it is unnecessary to enter upon any extended discussion of this question. It would be sufficient to cite the recent case of Parsons v. The United States, reported in 16Y U. S., 224. The distinction between the case at bar and that case is that in the latter the law expressly provided a term of four years of office, while in the case at bar no term of office has been proscribed. In this respect the office from which the claimant was removed is similar to many other offices for which no definite term of tenure has been prescribed by law; for example, the office of collector of internal revenue, the office of Assistant Secretary of the Treasury, and the offices of the various bureaus in that and the other Executive Departments.
    It has never been contended that the incumbents of these offices are not removable from office at the pleasure of the President, although no limitation in respect to the tenure of the offices has been prescribed by law.
    The question as to the power of the President to remove all such officers, for reasons, satisfactory to himself, is no longer open to discussion.
    Whether any limitation can be imposed by Congress upon the exercise of that power with respect to executive offices is a question which does not arise in this case, because .the statute does not attempt to make any such limitation, and the claimant accepted the office upon the terms of the commission, which expressly recognize the President’s power of removal. Even in cases where the statute has expressly provided for a four-years’ term of office the Supreme Court has held that the fixing of a definite term of years does not grant any tenure of the office. The court holds that the purpose of such legislation is to limit the duration of the term of office, and not to grant to the incumbent a term of office for that period. {Parsons v. United States, sujyra, 338.)
    The counsel for claimant has presented an able, interesting, .and elaborate argument, based upon the constitutional debates and subsequent discussions respecting the President’s power of removal from office, which would be very persuasive and perhaps convincing if the question had not been finally settled by the Supreme Court, following the practical construction of the Constitution adopted more than one hundred years ago, and never departed from by the court in any case. Mr. Justice Peckham, delivering the opinion of the court in Parsons’s case {svprá), has gone over the same grounds which the learned counsel for claimant so ably reviews, and has shown that the only attempt ever made by Congress to impose any limitation upon the power of the President to remove executive officers from office was by the enactment of the so-called tenure-of-office law. That act was subsequently repealed, and in respect to its repeal Mr. Justice Peckham said that the intention of Congress was “to concede to the President the power of removal, if [that power was] taken from him by the original tenure-of-office act, and by reason of the repeal to therebjr enable him to remove an officer when, in his discretion, he regards it for the public good” (lb., 313). This has been the construction of the courts in respect to the power of removal from office vested in the President by constitutional construction ever since the question was first raised.
    It is to be observed that the court was not here admitting any power as existing in Congress to vest the title to an office in the incumbent for a term of years. The subject discussed was the repeal of the part of the tenure-of-office act which provided:
    “That any person holding any civil office to which he has been or hereafter may be appointed by and with the advice and consent of the Senate, and w'ho shall have become duty qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed, unless sooner removed by and with the advice and consent of the Senate. * * * ”
    The point made was that if Congress had any power to fix bjr law a tenure of office — a proposition which was contrary to all precedent — then by repealing the statute Congress “conceded to the President the power of removal,” which had been uniformly exercised since the establishment of the Government.
    There is nothing in the statute that provides for the appointment of general appraisers of merchandise that indicates any intention on the part of Congress to place a limit upon the President’s powers of removal from office. Such an intention can not be read into the statute by construction or inference. To paraphrase from the opinion above cited: “Considering the construction of the Constitution in this regard as given by the Congress of 1789 and having in mind the constant and uniform practice of the Government in harmony with such construction, we must construe this act as providing absolutely for the expiration of claimant’s term of office when his duly appointed successor entered upon its duties, and hold that its silence in respect to a definite term of tenure is but a recognition of the construction thus almost universalty adhered to and acquiesced in as to the power of the President to remove.” (Ib., 339.)
   Peelle, J.,

delivered the opinion of the court:

The claimant seeks to recover under the act of June 10, 1890, ch. 407, sec. 12 (26 Stat. L., p. 136), the salary as general appraiser of merchandise from May 15 to November 1, 1899; and bjr his action questions the right of the President of the United States to remove him from said office without first having ascertained and assigned as his reasons therefor some one or more of the grounds set forth in said section.

That part of the section material to the question reads:

“That there shall be appointed bjr the President, by and with the advice and consent of the Senate, nine general appraisers of merchandise, each of whom shall receive a salary of seven thousand dollars a year. Not more than live of such, general appraisers shall be appointed from the same political partju They shall not be engaged in any othei business, avocation, or emplojnnent, and may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office. * * * ”

Story on the Constitution, vol 2, sec. 1531, 4th ed., says:

“ * * * As, however, the tenure of office of no officers, except those in the judicial departments, is, by the Constitution, provided to be during good behavior, it follows, by irresistible inference, that all others must hold their offices during pleasure, unless Congress shall have given some other duration to their office. * * * ”

The claimant’s contention is, that while ho concedes the power of the President to remove appraisers from office at any time for the causes specified in the act, he at the same time insists that “if neither inefficient, neglectful, nor guilty of misdoing in office, they were not to be removed by the President at any time. That .is, there was to be no removal, by anj^ power — the President alone, or with the concurrence of the Senate — except for cause, upon one or the other of the specified grounds.”

In the case of Parsons v. The United States (167 U. S., 324, 343), affirming the judgment of this court (30 C. Cls. R., p. 222) where a district attorney had been appointed under Kevised Statutes, section 169, for a term of four years, it was ruled that the repeal of the tenure-of-office act, March 2, 1861, “ was again to concede to the President the power of removal if taken from him by the original tenure-of-office act, and by reason of the repeal, to thereby enable him to remove an officer when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office.”

The claimant’s counsel, however, contends that the statute under which the district attorney was appointed for the term of four years “was not intended to restrict removals,” while the statute under which the claimant was appointed “was so intended,” and for that reason, he says, the Parsons case has no application.

Conceding that the purpose of the act was to restrict the President in the exercise of his power of removal to the causes specified therein, it does not follow that before he can act he must assign such cause as the basis of his action, nor does the statute so provide.

Under the act it is for the President alone to determine whether one of the specified causes furnishes a basis for his action. No method of procedure for that purpose or notice thereof to the claimant is prescribed in the statute. Hence, the method of ascertaining such causes is within the discretion of the President, and that being so, no legal liability attaches to the Government for the failure of the President to assign the particular statutory cause for his action.

The claimant had been informed through the Secretary of the Treasury, as set forth in finding iii, that “the President deems it his duty to make some changes in the personnel of the Board of General Appraisers,” and to that end the claimant was requested to tender his resignation, which he declined to do, and thereafter he was removed.

The changes which “the President deems it his duty to make” the court must assume were such as the law imposed upon him; and having followed that duty by the removal of the claimant and the appointment, with the concurrence of the Senate, of his successor, it must be presumed that the President was guided by the statute in respect to the causes for which the claimant was removed, though no particular cause therefor was assigned, and that therefore the claimant ceased to be an officer under that statute.

This construction, while it gives force to the statute, at the same time recognizes the power of the President, as the chief executive head, to remove from office at any time an ofBeer thereunder whenever in his judgment the causes specified therein exist, without having to assign his reasons therefor.

The petition is therefore dismissed.

Howrt, J.,

dissenting:

The respect which a coordinate branch of the Government owes to another forbids the reflection of any improper motive in plaintiff’s removal, but in the means taken to secure it and. the manner of its accomplishment rather does it seem that, while selecting a more suitable person to fill plaintiff’s place, the action of the President has been for the purpose of putting to the test his right to make the removal, the same as in the case of others holding' office at his pleasure.

That it is competent for Congress to limit the Presidential power of removal seems well enough settled to assume such right.. The power of _ removal as incident to the power of appointment is considered by the Supreme Court to be a sound and necessary rule, in the absence of all constitutional provision or statutory :regulation. (In re Hennen, 13 Pet., 249.)

The assignment of a four-years’ term under section 769 of the Revised Statutes did not sustain a claim for an absolute right to hold the full four years. (Parsons v. United States, 30 C. Cls. R., 245; 167 U. S. R., 343.) While the commission was made to expire at the end of four years, the provision of the law did not cut off the President’s power of removal during the term at his pleasure.

All that we may extract from the Parsons case is the question of the true construction of the language of the law under which Parsons was appointed. The customs administrative act of 1890 is the will of Congress of a totally different kind. The function intended for it to perform circumscribes power to remove to those things only which may be assigned.

Assuming that Congress can limit the power of removal, I think it should affirmatively appear here that some one at. least of the three conditions named in the act under which plaintiff held had arisen when plaintiff was removed. Otherwise his displacement must be treated as one made at pleasure. If any reason existed it could be easily assigned; if not assigned, the removal is arbitrary, pure and simple. In such case the statute is useless; it means nothing.

Without the assignment of a cause, or the necessity to assign any, the dismissed official is left in doubt how or in what manner he has disqualified himself. He goes out not only with a. stigma upon his official conduct, but understanding that he has committed a wrong of some kind. This is unjust, against the spirit of our institutions in depriving him of the nature of the accusation against Mm and of any chance to explain, and in effect puts such an official under duress upon any call for his resignation. Thus the' will of the legislative is displaced for the will of the executive branch of the Government. I ■ can not accept any such result until the court of last resort shall so determine.

It is true that under the act it is for the President alone to determine which of the specified causes furnishes the basis of removal and that no method of procedure for that purpose is prescribed in the statute. So much the greater reason for the precedents of the common law to be followed, or some mode of procedure adopted consistent with the public interests and the terms of the law which shall give the discharged official the privileges of the common malefactor.

The presumption that the President is guided by the statute in making the removal is merely the presumption that the king can do no wrong. This presumption has no such place under our institutions, and should not prevail against the presumption of innocence which attaches to the humbler citizen holding the subordinate office against the assertion of the authority of the more eminent citizen exercising the functions of the greater place.  