167 U.S. 324 (1897), 270, Parsons v. United States

Docket Nº:No. 270
Citation:167 U.S. 324, 17 S.Ct. 880, 42 L.Ed. 185
Party Name:Parsons v. United States
Case Date:May 24, 1897
Court:United States Supreme Court
 
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167 U.S. 324 (1897)

17 S.Ct. 880, 42 L.Ed. 185

Parsons

v.

United States

No. 270

United States Supreme Court

May 24, 1897

Argued April 8-9, 1897

APPEAL FROM THE COURT OF CLAIMS

Syllabus

The President has power to remove a district attorney of the United States when such removal occurs within four years from the date of the attorney's appointment and, with the advice and consent of the Senate, to appoint a successor to him.

Section 769 of the Revised Statutes, which enacts 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,

provides that the term shall not last longer than four years, subject to the right of the President to sooner remove.

It was the purpose of Congress in the repeal of the tenure of office sections of the Revised Statutes to again 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 legislative, executive and judicial history of the question reviewed.

[17 S.Ct. 880] The appellant, on the 4th day of December, 1894, filed in the Court of Claims an amended petition in which he alleged that, on the 4th of February, 1890, after his nomination and confirmation, he was duly appointed, qualified, and commissioned for the term of four years as attorney for the United States for the Northern District of Alabama, and also to act as such for the Middle district of Alabama; that thereupon he entered upon the discharge of the duties of his office; that he never resigned the same, and that he then resided, and has continued to reside, since the date of his commission, in the City of Birmingham, Alabama, and within the Northern District of Alabama, and that he had given his personal attention to the duties of his office, and that no cause of removal bad existed since his appointment.

Although the appellant was, as he alleged, duly commissioned as such district attorney, the contents of the commission do not appear in the petition nor in the record, but it has

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been assumed that it contained the usual language, which, after authorizing and empowering the officer to execute and fulfill the duties of the office, proceeds as follows:

To have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining unto him, the said Lewis E. Parsons, Jr., for the term of four years from the date hereof, subject to the conditions prescribed by law.

It was further alleged in the petition that, on the 29th day of May, 1893, the appellant received a written communication from the President of the United States, as follows:

Executive Mansion

Washington, D.C., May 26, 1893

Sir: You are hereby removed from the office of Attorney of the United States for the Northern and Middle districts of Alabama, to take effect upon the appointment and qualification of your successor.

Grover Cleveland

To Lewis E. Parsons, Jr.

Birmingham, Ala.

No charges had been preferred against the appellant.

Under date of Birmingham, Alabama, June 5, 1893, he sent a written communication to the President of the United States at Washington, D.C., in which he said:

My commission bears date February 4, 1890, and authorizes me to hold said office for the definite term of four years from the date thereof, fixed by law, and I am advised by counsel, and it is my own opinion, that you have no power to remove me, and I respectfully decline to surrender the office.

Very respectfully,

Lewis E. Parsons, Jr.

United States Attorney for the Northern District of Alabama

This answer was duly mailed to the President of the United States, and on the same day, viz., the 5th day of June, 1893,

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the appellant notified both the Attorney General of the United States and Emmet O'Neal that he declined to surrender the office of Attorney of the United States for the Northern District of Alabama to said O'Neal, who was named by the President as appellant's successor, his (O'Neal's) appointment bearing date May 26, 1893.

Upon the 20th day of June, 1893, O'Neal moved the Circuit Court for the Southern Division of the Northern District of Alabama to require appellant to turn over to him all the books and papers and other property appertaining to the office, which motion was resisted by appellant, but was granted by the court, although it did not adjudicate or determine the question of the title to the office or the power of the President to remove the appellant. In re O'Neal, 57 F. 293.

The appellant applied to this Court for leave to file a petition for a writ of mandamus to compel the judge to vacate his order granting the motion of Mr. O'Neal, which application was denied, but the merits of the case were not passed upon. In re Parsons, 150 U.S. 150.

The appellant further alleged in his petition that from the first of January, 1893, to May 26th of that year, he had earned certain fees, which had been duly accounted for and approved by the district judge, and that, since the 26th of May and prior to the 31st day of December, 1893, certain other fees had been earned for services rendered by Mr. O'Neal, who had been performing the duties of United States attorney since the 26th of May, 1893, and that, on the whole, there was a balance due appellant for salary and fees during the year 1893, appertaining to his office as district attorney, which amount had been demanded by appellant, and payment had been refused. Judgment for the amount was demanded.

The usual answer was put in by the United [17 S.Ct. 881] States. It further appears that on the 26th of May, 1893, the Senate of the United States was not in session, but that in August, 1893, that body was in session, and that the nomination of Mr. O'Neal was sent to it, and his appointment was by it consented to and confirmed, and that he was commissioned as United States district attorney for four years from that time. These facts have

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not been stated in the formal finding of facts by the court below, but they have been referred to by both the counsel in their briefs in the case as part of the admitted facts, and the fact of the confirmation of Mr. O'Neal on the 26th day of August, 1893, by the Senate, is stated by Judge Weldon in the course of his opinion in this case. 30 Ct.Cl. 222. The court below determined as a conclusion of law that the appellant was not entitled to recover, and his petition was therefore dismissed. From that judgment he has appealed to this Court.

PECKHAM, J., lead opinion

MR. JUSTICE PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the Court.

The question here presented is whether the President of the United States has power to remove a district attorney who had been duly appointed when such removal occurs within the period of four years from the date of his appointment, and to appoint a successor to that officer by and with the advice and consent of the Senate. The appellant in this case claims that the President has no such power, and that, by virtue of the appointment of appellant to the office of district attorney in February, 1890, he was entitled to hold that office for four years from that date, and to receive the emoluments appertaining thereto during the same period. He bases his claim upon sections 767 and 769 of the Revised Statutes.

Section 767 provides for the appointment in each district of the United States, with the exceptions therein stated, of "a person learned in the law to act as attorney for the United States in such district."

Section 769 reads as follows:

District attorneys shall be appointed for a term of four

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years and their commissions shall cease and expire at the expiration of four years from their respective dates. And every district attorney, before entering upon his office, shall be sworn to the faithful execution thereof.

The appellant claims that this section gives to every district attorney the legal right to hold his office for four years, and that, during that time, the President has no power to remove him directly, and the President and Senate have no power to remove him indirectly, by the appointment of a successor, and that therefore he has never been legally removed, and he bases his claim to recover herein upon that fact.

The first question which arises is in regard to the proper construction of the above-quoted section. Does it provide for the continuance in office for four years at all events, and for a termination at the expiration of that period, or does it mean to provide that the term shall not last longer than four years, subject to the right of the President to sooner remove? If it were to be construed in accordance with the claim of appellant, the further question would then arise whether a statute which fixed a term of office for a district attorney, during the running of which neither the President, nor the President and Senate, by the appointment of a successor, should have power to remove the incumbent from office would be constitutional.

It will greatly aid us in giving the proper construction to this section if we look for a moment at the constitutional history of the subject relating to the President's power of removal, and at the debates which have taken place in Congress in regard to it. The question arose in the first session of the first Congress which met after the adoption of the Constitution.

On the 19th of May, 1789, in the House...

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