
    MORRIS KEIM v. THE UNITED STATES.
    [No. 19342.
    Decided January 3, 1898.]
    
      On the Proofs.
    
    Ail 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, hut acted upon the official record of the office determining the relative (xualifications of clerks. 2. The record showed that the standing of the claimant was inferior to that of the clerks who were retained, hut 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.
    
      I.Tlie statutes provide that “persons honorably discharged from the military or naval service” “shall be preferred for appointment to civil offices provided they arc 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 clerk of a lower class or by a female clerk it shall be lawful for him to diminish the number of the clerks of the higher grade and increase the number of the clerks 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 fr'om the military or naval service . of the United States.” {Act 15th August, 1876, 19 Stat. L., 169, § 3.) To entitle an ex-soldier to retention in the service under these statutes in preference to a civilian they must he “equally qualified,” and such qualification must he determined hy the head of the Department.
    II.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.
    III. Power to appoint implies the power to remove. The power to appoint has heen limited by the civil-service laws, hut 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.
    IV. The power of removal is a purely executive power which is not intrusted to the judicial branch of the Government.
    
      The Reporters'’ statement of the case:
    The following are the facts as found by the court:
    I. Morris Keim, the plaintiff, is a citizen of the United States.
    II. August 20,1862, he enlisted and was mustered into the military service of the United States, in Company I, One hundred and fifty-fourth New York Volunteer Infantry, serving therein during the late war to January 25, 1865, when he was duly transferred to the One hundred and fifty-fourth Company of the Second Battalion, Veteran Reserve Corps, and was honorably discharged therefrom April 17,1865, at Nashville, Tenn., by order of Maj. Gen. George H. Thomas, “by reason of disability from inguinal hernia, contracted from excessive labor while under military order's at camp of detachment, Chattanooga, Tenn., in the summer of 1861.”
    III. May 7,1888, after examination by the Civil Service Commission, he was appointed to a clerkship in the Post-Office Department, in the division known as the Money-Order Office, with salary at the rate of $900, which position he held until February 4,1889, when he was, at his own request, transferred to the Treasury Department and assigned to the branch then known as the Sixth’s Auditor’s Office, with salary at the rate of $900 per annum. October 31,1890, he was, upon examination, promoted to class 1 in said Sixth Auditor’s office, which clerkship he held until March 16, 1893. He was then, at his own request and on the certificate of the Civil Service Commission, transferred to the Department of the Interior and assigned to a clerkship in class 1 in the Pension Bureau, with salary at the rate of $1,200 per year, 'which he held until March, 1894. March 1,1894, his salary was reduced to $1,000 per annum, at which salary he continued to serve to July 31, 1894, when he was discharged, and has not since said last-named date been permitted to discharge the duties of said clerkship, although he has stood ready and willing to discharge the duties thereof.
    IY. At the time of his said discharge the requirements of the public service in said Pension Bureau demanded the retention of a clerk in plaintiff's place; the Secretary of the Interior, upon the recommendation of the Commissioner of Pensions, retained at the time of plaintiff’s discharge, and nowr retains, other clerks of the same division who have received since plaintiff’s discharge, and are now receiving, the same salary, to wit, $1,000 per annum (one receiving $1,200 per annum), who have not been honorably discharged from the military or naval service of the United States, and who are not shown to this court, except as in these findings set forth, to have possessed at the time of plaintiff’s discharge better or inferior business capacity for the proper discharge of the duties of their said offices than the qualifications for the said duties possessed by plaintiff at that time. On or about the day plaintiff received notice of his discharge additional clerks were appointed to duties in the same division in which he served in said bureau who never rendered any military or naval service. It does not appear that any of these clerks were regarded or reported as inefficient by any superior officer; nor does it appear that those so retained or those thereafter appointed possessed better, or equal, or inferior qualifications for the discharge of the duties of their respective offices than those possessed therefor by the plaintiff.
    
      Y. The order of discharge bore this indorsement signed by the Commissioner of Pensions:
    “The discharge of Mr. Morris Keim was recommended because of his rating as inefficient. No other charges are made against him.
    “War. Lochken, Commissioner.
    
    “July 14,1894.”
    VI. There is no evidence that plaintiff made any effort to secure other employment, or that he has, or has not, been employed at any kind of work from and after his said discharge July, 1894. Nor is there evidence as to the difference in amount between his salary while in the Government service and any moneys he might have earned or could have reasonably earned or has earned in other ways since his said discharge.
    Plaintiff requested the court to make the findings of fact following additional. Except as hereinbefore set forth, the court declined to accede to these requests, deeming said requested, findings,' if true, to be irrelevant to the issue presented as set forth in the opinion of the court:
    “1. That Morris Keim, the petitioner, is a citizen of the United States, residing at Farmwell, Loudoun County, Ya., and has always yielded true allegiance to the Government of the United States.
    “2. That on the 2Gth day of August, 1862, he enlisted and was mustered into the ■ military service of the United States, in Company I, One hundred and fifty-fourth New York Volunteer Infantry, serving therein, for the suppression of the rebellion, up to the 25th day of January, 1865, on which said last-named date he was duly transferred to the One hundred and fifty-fourth Company of the Second Battalion, Veteran Beserve Corps, and was honorably discharged therefrom April 17,1865, at Nashville, Tenn., by order of Maj. Gen. George H. Thomas, ‘by reason of disability from inguinal hernia, contracted from excessive labor while under military orders at camp of detachment, Chattanooga, Tenn., in the summer of 1864.’
    “3. That on the 7th day of May, 1888, upon examination by the Civil-Service Commission, he was duly appointed to a clerkship in the Post-Office Department, in class —, in the division known as the Money-Order Office, at an annual salary of $900, which position he held up to February 4, 1889, when he was at his own request duly transferred to the Treasury Department, and was assigned to the branch then known as the Sixth Auditor’s Office at the salary of $900 per annum; that on the 31st day of October, 1890, he was, upon examination, duly promoted to class 1 in said Sixth Auditor’s Office, which clerkship he held up to March 16,1893; that on the said 6th day of March, 1893, he was, at his own request, on the certificate of the Civil Service Commission, transferred to the Department of the Interior and assigned to a clerkship in class 1 in the Pension Bureau at the salary of $1,200 per year, which he continued to hold until March, 1894, and at this salary continued in said bureau as such clerk, but was reduced to the salary of $1,000 per annum on or about the 1st day of March, 1894, at which last-named salary he continued to serve as such clerk up to J nly31,1894, when he was formally discharged from said service without any fault of his own and without just cause, and has not since said last named date been permitted to discharge the duties of said clerkship, although he lias at all times since said last-named date stood ready and willing to discharge the duties thereof.
    “4. That at the time of his said discharge the requirements of the public service in said Pension Bureau demanded the re tention of your petitioner, and his said services are nowrequired therein; that the Secretary of the Interior, upon the recommendation of the Commissioner of Pensions, did retain, at the time of the discharge of your petitioner, as aforesaid, and now retains one Charles E. Bookwalter, and other clerks of the same division who have received since his said discharge, and are now receiving the same salary, to wit, $1,000 per annum (except that said Bookwalter receives $1,200 per annum), who have not been honorably discharged from the military or naval servicie of the United States, and who were not found, at the time of petitioner’s said discharge, to possess better business capacity for the proper discharge of the duties of their said offices than the required qualifications for the said duties possessed by your petitioner at the time of liis said discharge; that on or about the day your petitioner received notice of his discharge additional clerks were appointed to duties in the same division in which your petitioner served in said Bureau, who were not honorably discharged from the military or naval service of the United States, and who never rendered any military or naval servicie whatever.
    “5. That petitioner was, at the time of his so-called discharge, an efficient clerk, and discharged his duties faithfully and efficiently, and -at the time of his said discharge he possessed and now possesses the necessary business capacity for the proper discharge of the duties of said clerkship.
    “6. That there is due petitioner for and on account of services rendered by him in the month o'f July, 1894, $35.30, if it shall be found that same was improperly and illegally withheld from him.
    l<7. Th'atthereisduethepetitionerupon the ‘Secondamended petition,’ if he shall be deemed illegally deprived of his office, on account of annual salary, at the rate of $1,000 per annum, since July 31, 1894, $1,375.”
    
      
      Mr. Luther It. Smith and Mr. John 0. Chaney for tbe claimant.
    The civil-service law, the rules and regulations of the Civil Service Commission laid down in pursuance of the law, the orders and directions of the President under the law, the letters of the Secretary of the Interior in accordance with the law, and the rules and regulations, unite in securing to the faithful and efficient clerk, and especially the ex-Union soldier, a fixed tenure of office, and do not leave his term dependent upon the favor or caprice of the head of an Executive Department or the chief of a bureau.
    These authorities, together with decisions of the courts, on analogous laws, rules and regulations, were discussed in the briefs on the demurrer to the petition in this case and are now in the record. The court was then of the opinion that the proof of the allegations in the petitions would warrant a judgment in claimant’s favor. And we have established the allegations in the petition.
    The claimant sues on two causes of action. The first is for $35.30 salary earned in the last month of his service. He was in office, on the rolls, and rendered the service for which the above-named amount is demanded. There is no well-founded objection to his having this sum. By the decisions of this court he is entitled to it. (Sleigh’s Case, 9 C. Ols. R., 369; .Williamson’s Case, 23'Wall., -111.)
    The second cause of action is for $1,375 salary claimed as due claimant since his so-called discharge. If he was illegally discharged, he is still legally in office; and if legally in office, he is entitled to the salary of the office. (Blah(Is Case, 103 U. S. R., pp. 227,237; Iiihlberg v. United States, 97 U. S. B., 398-403; Harolds Case, 23 O.Ols. R., 295; Williamson v. United States, 23 Wall., 411-416; Chisolm’s Case, 27 O. Ols. R., 94; Emmett v. Mayor, 38 N. Y. St. Rpts., 907; Feople v. Mayor, 25 Wend. (N". Y.), 680'; Sleigh’s Case (supra)-, Throop on Public Officers, sections 473 to 500; Mecliem on Public Officers.)
    The right of the claimant to relief is fully sustained in Mar-burg v. Madison (1st Oranch, 163); United States v. MacDaniel (7 Peters, 1-15); United States v. Lee (106 U. S.R., p. 196).
    And it has been expressly ruled that “When Oongress 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.” (United States v. rerhms, 116 U. S. B., 483-485.)
    And the civil-service law has been decided to be constitutional by the United States Supreme Court in the case of ex parte Gurtis (106 U. S. B., 371-379).
    All the laws relating to the status of the honorably discharged Union soldiers and the regulations duly made thereunder must be construed in pari materia. (United States v. Freeman, 3d Howard, p. 564; United States v. Kirby, 7 Wall., 482-487; Lay Oto Bew v. United States, 144 U. S. B., 47-64; Bernier v. Bernier, 147 U. S. B., 242-244.)
    The evidence shows that the claimant has done all that the law requires him to do, and he is, therefore, entitled to the compensation allowed by law, and his right to such compensation can not be prevented by “the misconduct or neglect of a public officer.” (I/ytle v. Arkansas, 9 Howard, p. 332.)
    Any construction of the law that deprives the claimant of the amount claimed in his petition would be contrary to the plain provisions of the statutes and at variance with the manifest purpose and intention of Congress as expressed therein.
    
      Mr. John G. Gapers (with whom was Mr. Assistant Attorney-General .Dodge) for the defendants.
    This case can well be called a proceeding by which this court is asked to give judicial investigation to the mental processes of the head of a Department.
    Although the claimant admits that he has not done a day’s work for the Government since J uly, 1894, he comes into court and asks for considerably more than a thousand dollars for the work he would have done since July, 1894, had he not been discharged from the Government service at that time. Claimant denies that the Secretary of the Interior had a right to discharge him, and presents the unusual, unreasonable, and untenable proposition that he should be awarded full pay for the time he has been out of the service. Because the claimant is an ex-Union soldier he practically claims that he is not subject to the rules as to the fitness and ability of clerks, and that in his case the head of the Department was not free to exercise the usual discretion and judgment of a Government officer in his responsible position.
    I submit that no statute law on our books takes from the heads of Departments the discretionary powers that were vested in them prior to tbe passage of tbe civil-service law or of section. 1754, Devised Statutes, and tbe acts supplemental thereto.
    This is a new question in so far as it calls for judicial action in construing tbe acts of Congress upon tbe question of tbe discretionary powers of the beads of Departments in tbe matter of dismissing or retaining clerks in their respective Departments. It is not a new question, however, in many of tbe States of tbe 'Union. A number of these States have so-called “preference laws” and local civil-service laws, both for State and municipal aifairs and their officers. I have gone through tbe decisions in many States, notably New York, Massachusetts, and Michigan, with a view to assist tbe court in coming to a conclusion upon the questions of law involved. In every instance I find practically nothing applicable to a proceeding like tbe one at band.
    It was well settled, and the principle is identical here, that one bolding office by tenure similar to that of a Department clerk could not bring mandamus to obtain restoration to office; and this primarily for tbe reason that such a mandamus would be an interference with tbe discretion of the appointing officer.
    This was finally settled in tbe case of Lx parte Rennen (13 Pet., 230). That case related to a court clerk. Tbe appointing power was a district judge, and this judge removed Heu-nen and appointed one Winthrop in bis place. In this case Mr. Justice’Thompson discussed at length tbe principles governing appointments and removals) bolding relator’s position to be in this respect the same as that of a Department clerk.
    These principles were not affected by tbe legislation prior to or by tbe act of -1883, except so far as definite exceptions may have been thereby established.
    The general right of removal, uureviewable by tbe courts, still exists.- Directly on this subject, is United States ex rel. Pulaski v. Lyman (21 Washington Law Iiep., 403).
    We contend that tbe courts can not regulate nor review tbe executive action of tbe beads of Departments in tbe removal of clerks from their respective Departments. The head of tbe Department must be tbe judge of tbe fitness of tbe clerks under him, and bis action as to promotion, reduction, or dismissal is final. Were this not so tbe court would become at once an executive branch of tbe Government. x
    There is no statute which alters the law in such a way as to give the courts the right of interference. Such was not the intent of any of the acts. Very little consideration is necessary to perceive the deleterious effects which would come from the recognition of a right on the part of all discharged officers whose politics differ, or are claimed by themselves to differ, from those of the appointing officer to have the latter’s mental processes made the subject of judicial investigation.
    A recent opinion of the Attorney-General (Yol. XXI, Part II, p. 355) is directly in point and presents the case briefly and clearly. (See 7 Opin., 594, 597.)
    The case of Spalding v. .Dickenson (161 U. S. R., 483) furnishes an interesting review on the question of the public policy and the law which demands for judges and heads of Executive Departments immunity from civil suits for damages for acts done in the performance of their duties.
    I respectfully submit that “the proper and effective administration of public affairs” would be hampered if the dismissal of clerks and the motives" of the heads of Departments were reviewable by the courts.
    Particularly in cases like the one at hand where there is no law limiting or qualifying the power, judgment, and discretion of heads of Departments in the matter of removals, “the power of removal is incident to the power of appointment.” (Remen Case, 13 Peters, 225.) Congress has passed no law dictating to the Executive the mental action which must prevail under general directions. The-language of one of the statutes above cited, and relied upon by claimant, is in point as to this position. The statute says: “Whenever, in the judgment of the head of any Department, the duties assigned to any clerk,” etc.; and in the first section quoted it is distinctly provided that “persons honorably discharged from the military or naval service * * * shall be preferred for appointments to civil offices: Provided, They are found (by the head of the Department) to possess the business capacity necessary for the proper discharge of the duties of such offices;” Clearly none other than the heads of Departments are qualified to judge as to who is and who is not possessed of “the business capacity necessary for the proper discharge of the duties” of the several clerical positions under them.
    The general doctrine in which the position we take is involved is discussed in the decision of the Supreme Court in the McLean Case (.95 U. S. R., 753), where it is held that «courts can not perform executive duties or treat them as performed when they have been neglected. The right asserted by the claimant rests upon a condition unfulfilled.” In the case at hand the “condition unfulfilled” is the inability of claimant to have satisfied the head of the Department of his business capacity to perform the work assigned him. And further, in discussing the same general doctrine, a decision of the Court of Claims (Ramsey v. The United States, 14 C. Cls. U., 367) holds that where Congress has intrusted “the determination of the rights of parties to the judgment and discretion of special executive or other officers * * * such jurisdiction is exclusive and furnishes the only remedy to claimants of that class.”
    If this court were to grant this petition and give the claimant the full amount of his salary for all of the time which has elapsed since his “formal discharge” from the Government service, the court in so doing would have to hold that the law providing for preference to be shown ex-Union soldiers and sailors (under certain stated conditions) created a contract between the Government and the ex-Union soldier or sailor in the nature of a life tenure of office, independent of the appointing power; or, worse than that, it would mean that though the clerk might be found incapable of performing his duties, his pay must continue. Such a state of affairs would create a branch of the pension service wholly unrecognized at this time; for of course such a rule would not apply to any special set of ex-Union soldiers ancf sailors, but would include all of them who may be in the Government employment, and provide for their retention in public office though wholly unable to work and incapable of clerical service.
   Davis, J.,

delivered the opinion of the court:

Plaintiff served in the Army during the late war and was honorably discharged. Later, and after a civil-service examination, he was made a clerk in an Executive Department; then (at his request) he was transferred to another Department; there he secured promotion; then he was (following his wish) transferred to the Department of the Interior and assigned to duty as a clerk in the Pension Bureau, where our interest in him begins'; later he was reduced in rank, and still later he was discharged.

The discharge he alleges to have been without fault or deficiency on his part. "

The following order was signed by the Commissioner of Pensions:

“The discharge of Mr. Morris Keim was recommended because of his rating as inefficient. No other charges are made against him.”

The substantial point in the case concerns 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 dismissing' a subordinate who has entered the executive service through the recommendation of the Civil Service Commission and who is also an hon orably'diseharged 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 reasons than lack of sufficient ability, and that (in any event) he was not given the preference to which on (otherwise) even.terms the former soldier is entitled. _

The statutes provide:

“Persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices. (Sec. 1754, R. S.)
“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 clerk of a lower class, or by a female clerk, it shall be lawful for him to diminish the number of the clerks of the higher grade and increase the number of the clerks of the lower grade within the limit of the total appropriation for such such clerical service: Provided, That in making any reduction of force in any of the Executive Departments, the head of suchDepartment shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers and sailors.” (See 3, Supp. to R. S., vol. 1, p. 120; act 115th August, 1876, 19 Stat. L., 169, sec. 3.)

Plaintiff relies upon the statute of August 15, 1876, above quoted, contends that the proviso is mandatory and the acts done under it may be the subject of judicial determination.

The first line of the section expressly states that the comparative performance of certain clerks shall be determined by “ the judgment of the head of any Department.” In the proviso a comparison is also directed between persons who may be equally qualified to perform tlie duties assigned to them;that is, between clerks who have been iu the military or naval service and those who have not been in either service. To entitle the former to retention in service they must be equally qualified. The statute does not say whether this shall be determined by the records of an Executive Department or by the courts. By whom shall it be determined f The enacting-clause of the section (act of 1876) answers the inquiry by saying that it shall be determined by the “judgment” of the head of the Department. It is not correct to say that one rule is prescribed by the enacting clause and a different rule by the proviso. The judgment of the head of the Department is as applicable in the one class of cases as in the other; and the qualifications of the. clerk to be appointed in the one class or of the clerk to be retained in the other are necessarily matters committed to the judgment of the head of the Department within the intent and meaning of the statute.

The first question to consider is as to our power. May a court enter an Executive Department, examine the acts of the principal officer, inquire into his exercise of discretion, put him, in effect, upon the witness stand, and investigate the reasons which influenced the exercise of this discretion?

Plaintiff seeks to show that other clerks were less efficient than he, and that these clerks were retained while he was discharged. Who is to decide as to this efficiency, the superior administrative officer, responsible for the efficient conduct of his office, and dependent upon this for his reputation and tenure; the officer presumably 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 entrance into Government employ; they direct that (other things being equal) the soldier shall have preference, but someone in authority must in each instance decide whether the former soldier has placed himself in such a position of equality with his colleagues as to be entitled to the statutory advantage.

In our opinion there is but one question presented in this' record, to wit: Is a court to decide whether a clerk has so performed his work as to bring himself within the protected class, or have that clerk’s executive superiors the power and the duty to make that decision, and to make it finally?

The plaintiff had a right “to be preferred for appointment” if found to possess the necessary business capacity. It might be urged that as he was in fact appointed, power under this statute was exhausted. We need not discuss that point; the case is too important to pause at a slight issue. The purport and intent of the law are evident and admitted, that the soldier, under equal conditions, shall be favored. Who is to decide as to this equality"? Who is to say whether any one individual is equally efficient with his rival? Is this power lodged in the superior executive officer, or are the courts to investigate the records not only of clerks discharged or clerks reduced in pay, but also to compare their records with those of their colleagues or rivals, and then to decide judicially that the superior executive officer has erred aud has discharged or promoted the wrong man?

As a broad principle, the power to appoint implies the power to remove (People ex rel. McCullough v. Cram, 36 N. Y. Sup. Ct., 1117). The Supreme Court of the United States (ex parte Hennen, 13 Peters, 230; Parsons v. U. S. R., 30 C. Cls. R., 222, and 167 U. S. R., 324) have held:

“There can be no doubt that these clerks hold their office at the will and discretion of the head oj the Department. It would be a 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 to appoint has been limited by the civil-service laws; the power to remove, however, remains unimpaired in, the executive except for this, that (other things being equal) the removing power must retain the man who has served during the war as a soldier; so again we reach the point of this case which (although much else has been said) simply is: who is to decide?

If the courts can examine these questions, 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 incompetent, the discipline of the Departments is seriously impaired. In Chisholm's Case (27 C. C., p. 98) this court held “upon such questions as these the executive officers can alone decide; they are questions of discretion which in their nature belong to those having the responsibility.” The officers of the G-overnment are carefully selected; thehea&s of theprinci-pal Executive Departments and of the important bureaus are trained men of broad experience and national reputation; to spare them certain pressure and responsibility and in an effort to improve the subordinate civil service the statutes nowunder consideration were passed; but these statutes relate only to selection for appointment, and do not touch the power of removal except that (other things being equal) the soldier shall be retained.

The superior executive officer decides as to the removal. The law controlling him is the unwritten law of fairness, justice, kindness, and honesty, and also the written law providing (other things being equal) that the soldier shall be preferred. The supervision of this purely executive power is not intrusted to the judicial branch of the Government of the United States.

Petition dismissed.

Weldon, J., concurs in the judgment pro forma in order that the case may be decided by the Supreme Court.

Howry, J., took no part in the decision of this case.

Peelle, J.,

dissenting for the following reasons:

The facts found by the court (2 and 3) clearly bring the claimant within the class of persons preferred for appointment under Revised Statutes, section 1754, about which there is no controversy^ while finding 4 is apparently sufficient to bring him within the class of persons preferred for retention under the act of 1S76. But if not, the facts requested by the claimant and refused to-be found by the court, though set out in extenso, because not deemed relevant to the issue, clearly do.

At the time of the claimant’s appointment and during his service as such clerk there existed the following statutes:

Revised Statutes:

•£Sec. 1754. Persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices.”

Section 3, act of August 15, 1876 (Supp. Rev. Stat., vol. 1, p. 120):

“ Sec. 3. That whenever, in the judgment of the head of any Department, the duties assigned to a clerk of one class can be as well performed by a clerk of a lower class, or by a female clerk, it shall be lawful for him to diminish the number of clerks of the higher grade and increase the number of the clerks of the lower grade within the limit of the total appropriation for such clerical service:
“Provided, That in making any reduction of force in any of the Executive Departments, the head of such Department shall retain those persons who may be equally qualified wbo have been honorably discharged from the military or naval service of the United States and the widows and orphans of deceased soldiers and sailors.”

Section 7, act of January 16, 1883 (22 Stat. L., 403, Supp. Rev. Stat., vol. 1, p. 395):

“ Sec. 7. That after the expiration of six months from the passage of this act no officer or clerk shall be appointed, and no person shall be employed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be specially exempted from such examination in conformity herewith.
“ But nothing herein contained shall be construed to take from those honorably discharged from the military or naval service any preference conferred by the seventeen hundred and fifty-fourth section of the Revised Statutes, nor to take from the President any authority not inconsistent with this act conferred by the seventeen hundred and fifty-third section of said statutes.”

The claimant’s right depends upon the proper construction to be given to the proviso to section 3, act of August 15,1876 (supra), in connection with section 1754, preserved by the civil-service act.

The theory of the court’s opinión is that even if the facts which it refuses to find, though set out in extenso, áre true, still the result must be the same, for the reason that “ whether a clerk has so performed his work as to bring himself within the protected class,” for retention on the reduction of force, is a question within the supervision of “ purely executive power ” and not therefore “ entrusted to the judicial branch of the Government.”

In other words, that the interpretation and enforcement of the statute “shall be determined by the ‘judgment’ of the head of the Department,” and is not therefore within the jurisdiction of the courts.

By the act of March 3, 1887, section 1 (24 Stat. L., 505, 1 Supp. Rev. Stat., p. 559), it is provided “that the Court of Claims shall have jurisdiction to hear and determine the following matters:

“ All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law equity, or admiralty, if the United States were suable.”

If, therefore, the statute of 1876 is one upon which a claim can be founded, this court has jurisdiction under the act of 1887 "to hear and determine” it.

If the claimant acquired any right under the preference statutes quoted of which he was illegally deprived to his damage, then his claim is well founded, and the court has jurisdiction to hear and determine it.

Under the act of 1876 it is for the head of a Department to determine whether “the duties assigned to a clerk of one class can be as well performed by a clerk of a lower class or by a female clerk,” and if, in his judgment, it can be done, “it shall be lawful for him to diminish the number of clerks of the higher grade and increase the number of clerks of the lower grade within the limits of the total appropriation for such clerical service.” But having gone that far, the Congress saw that the purpose of the preference given in appointments by section 1754 might be taken away, and so they added the proviso, excepting from the operation of the statute such preferred class for retention, thereby limiting the power of removal in respect of such preferred class by providing “ that 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.” Not that he may or may not in his judgment retain such, but that he “ shall retain.”

It was not intended by the proviso to establish a, new rule for the ascertainment of the business capacity or qualifications necessary to entitle such preferred class to retention or to submit to the judgment of the head of a Department the question as to the qualifications of those preferred for appointment under section 1754. The purpose of that section should not be defeated in the execution of the act of 1876, but rather effectuated, and in case of conflict the former should prevail, as it was in express terms preserved by the civil-service act ,• besides, the legislation was intended for the benefit of such preferred class, and good faith requires that the preference given by statute to those so honorably discharged should not be taken away for slight or transient causes, nor should technicalities intervene to defeat the purpose of Congress in reference thereto.

The claimant having been honorably discharged from the military service of the United States, and having been appointed after a civil-service examination pursuant to law, the presumption is that he possessed the business capacity necessary for the proper discharge of the duties of the service into which he entered, and he was therefore entitled to retention in the reduction of force; but, aside from such presumption, the findings set out, and refused to be found because deemed irrelevant, clearly establish the claimant’s efficiency as a clerk, and that being so, he must have been “equally qualified” as matter of fact with those so retained. Such being his status at the time of his discharge, he was entitled, under the act of 1876, to be retained.

I am dealing with a statute which in express terms prefers for retention a specified class, and if that statute is to be enforced, as manifestly intended by Congress it should be, then the discharge of the claimant at the time and under the circumstances of this case was in violation thereof, and that being so, he was deprived of a right thereunder — i. e., the right, to be retained in his position and to continue to enjoy the salary provided therefor by law.

The claimant having brought himself within the provisions of the statute as one entitled to retention, and having been deprived of his office or employment to his damage — i. e., the loss of the salary provided therefor by law — his claim is one which this court may “hear and determine,” under the act of 1887 {swpra), as a claim arising under a statute. >  