
    MICHAEL P. CORCORAN v. THE UNITED STATES.
    [No. 21653.
    Decided February 24, 1903.]
    
      On the Proofs.
    
    A postmaster suspends a carrier and prefers charges against him to the Postmaster-General. The Postmaster-General acquits the carrier and orders that he be restored to duty. The period of suspension is ninety-six days during which the carrier is deprived of pay.
    I.Letter-carriers can be appointed and removed only by the Postmaster-General.
    II. Whether the Postmaster-General can delegate the pÓwer by regulation (625) to a postmaster to deprive a carrier of his legal pay, query?
    III. Where a carrier is suspended by a postmaster and acquitted by the Postmaster-General and restored to duty by him, nothing being said as to deprivation of pay, he is entitled to his pay during the period of suspension.
    IY. Two things are essential to deprive an officer of his statutory compensation — that the power to do so be lodged in some official hands; that it be exercised actually and expressly, and not indirectly or by implication.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 12th of October, in the year 1898, the claimant, Michael P. Corcoran, a letter carrier in the post-office at Brockton, Mass., entitled to a salary of $850 a year, was suspended from the performance of his official duty by the postmaster at said city, by the following communication handed him by the postmaster on that day:
    ‘ ‘ BrooutoN Post Office,
    “office of the postmaster.
    “Brockton, Plymouth Co., Mass., Oct. 1%, 1898.
    
    “M. P. Corcoran
    “Sir:
    “Yo.are hereby suspended, leave your key & tickets
    “J. M. Hollywood, “PM.
    “Eor your insolence to me this am. & connection with yesterday’s trouble ”
    
      The trouble referred to consisted in a statement which the claimant had made to a woman on the previous day in regard to the failure of a bank in Minneapolis, Minn., and which was communicated by the woman to whom he had spoken to another woman, who had a meager knowledge of the English-language and misunderstood the first woman, with the result that there was a ran on a savings bank at Brockton. Neither the bank nor its depositors nor the residents on the claimant’s route made any complaint- in regard to the matter.
    The insolence referred to consisted in the claimant stating, when reprimanded bj^ the postmaster, that even if what he said caused murder he might not be blamed for it.
    On the said 12th day of October, 1898, the postmaster notified the First Assistant Postmaster-General that—
    
      “I have suspended Letter-Carrier M. C. Corcoran till further orders from you, and his removal for the good of the service.”
    II. On the 2d day of December, 1898, the postmaster made many other charges against the claimant. All these charges, in connection with those at first preferred, were investigated late in December through a personal visit to the city of Br’ockton by the assistant superintendent of the Free-Delivery System.
    Upon the facts disclosed by the investigation the Postmaster-General made the following decision:
    “Post-Office Department,
    “First Assistant Postmaster-General,
    “Office of Supt. Free-Delivery System,
    “ Washington, Jan. 1%, 1899.
    
    “Hon. J. M. Hollywood,
    “ Postmaster, Brockton, Mass.
    
    “Sir: The Department is in receipt of the report of Assistant Superintendent Hedges, of the free-deliveiy division, in the case of Letter Carrier M. P. Corcoran, of your office, suspended on the 12th of Oct. last, charged with causing a run on the Brockton Savings Bank.
    “The absence of any complaint from the officers or directors of the bank against the carrier, and the fact that the woman with whom he conversed understood that it was not the Brock-ton bank to which he referred, and the misunderstanding arose between that women and a Swedish neighbor, would seem to exonerate Carrier Corcoran from serious complicity as regards that particular charge. Touching the numerous other charges and complaints against this carrier, made a part of the case, while the réporting officer expresses the opinion that much ground exists for part if not all of the eleven remaining charges and complaints, yet the absence of specific data bearing upon these additional charges renders impracticable at this time concurrence in the recommendation for his removal. The carrier’s record for several years, so far as appears from the files of the free-delivery division, is free from any previous charges, suspensions, or other penalties. The general character and wide • scope of the present numerous charges indicate that they are not of recent origin, which fact precludes serious action upon same at this date, since to do so would virtually nullify an officially good service record. Derelictions and failure to comply with the rules and regulations of your office and the Department, such as are indicated in these charges, should be dealt with as they occur, and a suspension or official reprimand commensurate with the offense inflicted. This course would establish a record wiiich, if it became cumulative, would afford ample grounds for serious action. To recognize an accumulation of infractions and minor offenses long after their occurrence and in the face of a clear official record would be to establish a retroactive rule that might lead to abuse.
    “ You are therefore directed to restore Carrier Corcoran to duty, and to notify him that henceforth every infraction or omission (even to one minute overtime) will be dealt with at the time of its occurrence, and an official reprimand administered, or a suspension from duty commensurate with the offense.
    “ Very respectfully,
    “ Pekkt S. Heath,
    
      “First Assistant Postmaster- General.”
    III. He was not paid any salary from the 12th day of October, in the year 1898, to the 16th da}" of January, in the year 1899. His salarj" for that period lyquld amount to $217.14.
    
      Messrs. Geo. A. and William. B. King for the claimant.
    
      Mr. Fdwin G. JSrmdenlnirg (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

On the hearing of this case it was contended on the part of the claimant that no executive officer has authority to deprive a subordinate officer of his lawful statutory salary while lie bolds his office; and on the part of the defendants, that if it should be held that the Postmaster-General can not suspend a letter carrier without pay he will be robbed of the only weapon he wdelds to insure obedience to the rules and regulations of his department. In the opinion of the court neither of these alternative propositions is involved in the present case.

The essential facts are these:

A letter carrier at Brockton, Mass., entitled by statute to a salary of $850 a year, was suspended by the postmaster at that place. The postmaster then notified the Postmaster-General of the suspension and preferred charges against the carrier for an alleged specific offense occurring at that time, and to this he appended a number of charges for alleged trivial offenses then long passed. Pending the investigation of these charges the carrier remained suspended for a period of ninety-six and one-half days. The Postmaster-General, after the investigation, and on consideration of the facts before him, acquitted the carrier of the first charge and dismissed the others, sajfing that the fact that they were not of recent origin “precludes serious action upon the same at this date, since to do so would virtually nullify an officially.good service record.” He ordered at the same time that the carrier be restored to duty.

The regulation of the Post-Office Department which has been adduced on the one side and assailed on the other manifestly prescribes punishment:

“Sec. 625. Reprimand, suspension, and removal. — The due performance of their duty by carriers, and the observance of law, regulations, and orders prescribed for their conduct will be enforced by reprimand for slight offenses, by suspension with loss of pay for more serious ones, not, however, to exceed thirty days, and by suspension and recommendation for removal for grave offenses or persistent disregard of the rules herein prescribed or of the orders of the postmaster not inconsistent herewith. All recommendations for removal must be .made to the First Assistant Postmaster-General, free delivery division. No carrier will be removed except for cause, upon written charges filed with the Post-Office Department, of which he shall have full notice and an opportunity for defense.”

For a court, so to construe this regulation, that if a carrier be convicted of a “serious” offense he may forfeit one month’s pa}’; but .if he be acquitted oí a “grave” offense, he shall forfeit three months’ pay, would be to reduce the regulation to an absurdity.

It will be noted that the suspension from duty was by the postmaster and not by the Postmaster-General; and it will be remembered that letter carriers maj’ be dismissed by the Postmaster-General, but not by a postmaster. From a legal point of view it seems as impossible that a postmaster can deprive a duly appointed officer serving under him of his lawful salaiy by suspending him as that the colonel of a regiment can deprive an officer under his commaad of his lawful pay by putting him under arrest and thereby preventing him from rendering service.

Whether the Postmaster-General can delegate to postmasters, bjr regulations, the power of depriving a letter carrier of his pa}7 for thirty days is a question not presented by this case and concerning which the court expresses no opinion.

Two things are essential to deprive an officer of his statutory compensation: The first is that the power so to do must bo lodged, directly or by necessaiy implication, in some official hands; the second is that it must be exercised actually and expressly, and not indirectly or by implication. The two principal facts in this case are, first, that the claimant was acquitted and not convicted, and therefore stands innocent (ib initio, prevented from rendering service which he was willing to render and from receiving the salary which he was prevented from receiving by the unfounded charges of the postmaster. The second is that the Postmaster-General did not exercise his power of inflicting punishment by dismissing the carrier or of punishing him by forfeiture of pay, but, on the contrary, restored him to duty. The case, therefore, comes squarely within that of Lellmann v. United States (37 U. S., 128).

In the present case the postmaster did not assume to punish the carrier by suspending him, with loss of pay, not to exceed thirty days,” as prescribed by the regulation; and the Postmaster-General did not suspend him or impose any punishment whatever.

The judgment of the court is that the claimant recover judgment in the sum of $217.74.  