
    MORRIS KEIM v. THE UNITED STATES.
    [33 C. Cls. R., 174; 177 U. S. R., 290.]
    
      On the daimantfs Appeal.
    
    An honorably discharged soldier, clerk in an Executive Department, is discharged “because of Ms rating as inefficient.” The case rests on these ultimate facts: 1. The head of the Department did not exercise personal “judgment” in the discharge of a clerk, but acted upon the official record of the office determining the relative qualifications of clerks. 2. The record showed that the standing of the claimant was inferior to that of the clerks who were retained but that this inferiority was due to absence without leave. 3. The evidence, dehors the record, showed that the claimant’s absence was necessary in order that he might obtain surgical treatment and appliances which could not be procured in Washington, and that he applied for leave of absence to go to Philadelphia for that purpose and was told to go, and was led to believe that when he returned leave of absence for the number of days which he had been absent would be granted him, and that this method of granting sick leave for a specific number of days was the usage of the Department.
    The court below decides:
    1. The statutes provide that “persons honorably discharged from, the military or naval service” “shall be preferred for appointment to civil offices provided they are found to possess the business capacity necessary for the discharge of the duties of such offices.” (Rev. Stat., § 1754.) Also, “that whenever in the judgment of the head of any Department the duties assigned to any clerk of one class can be as well performed by a cleric of a lower class or by a female cleric it shall be lawful for him to diminish the number of the clerics of the higher grade and increase the number of the clerics of the lower grade:” “Provided, That in making any reduction of force in any Executive Department the head of such Department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States.” (Act 15th August, 1876, 19 Stat. L., 169, § 3.)
    
      2. To entitle an ex-soldier to retention in the service under these statutes in preference to a civilian they must be “equally qualified," and such qualification must he determined by the head of the Department.
    3. A court can not enter an Executive Department, examine the acts of its head, inquire into the exercise of his discretion, and investigate as to causes of its exercise.
    4. Power to appoint implies the power to remove. The power to appoint has been limited by the civil-service laws, but that to remove remains unimpaired in the Executive, except that, other things being equal, the removing power must retain the man who has served as a soldier.
    5. The power of removal is a purely executive power which is not intrusted to the judicial branch of the Government.
   The decision of the court below is affirmed on the same grounds.

Mr. Justice Brewer

delivered the opinion of the Supreme Court April 9, 1900.  