189 U.S. 311 (1903), 76, Shurtleff v. United States

Docket Nº:No. 76
Citation:189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828
Party Name:Shurtleff v. United States
Case Date:April 06, 1903
Court:United States Supreme Court

Page 311

189 U.S. 311 (1903)

23 S.Ct. 535, 47 L.Ed. 828



United States

No. 76

United States Supreme Court

April 6, 1903

Argued January 20, 1903



Where Congress creates an office and provides for the removal of the incumbent at any time for inefficiency, neglect of duty, or malfeasance in office, if the removal of the officer is sought to be made for any of those causes, he is entitled to notice and a hearing; but if the President removes him without giving him notice and an opportunity to defend himself, it must be presumed that the removal was not made for any of the causes assigned in the statute.

In the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though he were appointed by and with the advice and consent of the Senate. This power (assuming, but not deciding, that Congress could deprive the President of the right to exercise it in such a case as this) cannot be taken away by mere inference or implication, and, in the absence of plain language in the statute, Congress will not be presumed to have taken it away.

Under section 12 of the Customs Administrative Act of June 10, 1890, providing for the appointment of general appraisers and their removal by the President for inefficiency, neglect, or malfeasance in office, the President may also remove such officers without any of the causes specified under his general power of removal.

The appellant seeks to review a judgment of the Court of Claims denying his right to be paid the salary pertaining to

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the office of a general appraiser of merchandise and accruing between May 15 and November 1, 1899. The court refused to decree payment of the claim on the ground that he was not one of the appraisers during the time for which he demanded such salary.

The facts, as they appear in the findings of the Court of Claims, are that the appellant was nominated on July 17, 1890, to be one of the general appraisers of merchandise under the Act of June 10, 1890, chapter 407, 26 Stat. 131, and that nomination was consented to on the following day by the Senate, and the appellant was thereupon commissioned to be such general appraiser of merchandise. He accepted that office and took the oath required on July 24, 1890, and remained in such office and was paid the salary attached thereto up to May 15, 1899. On May 3 of that year, he received the following communication from the President:

Executive Mansion

Washington, D.C. 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

The appellant never resigned his office nor acquiesced in any attempted removal therefrom, and he was never notified or informed of any charges made against him either of inefficiency, neglect of duty, or malfeasance in office, and he knows of no cause for his removal from the office having been ascertained or assigned by the President.

Since May 15, 1899, he has been ready and willing and offered to discharge the duties of the office, and has not been paid any salary since that date. He has made monthly demand upon the Treasury Department for the salary attaching to the office from May 15 to November 1, and such demand has been refused.

On May 12, 1899, an appointment was made during the recess of the Senate to fill the vacancy caused by the removal of the petitioner from his office, and such appointment was to be

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in effect not longer than to 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 19, 1899, up to the present time. On December 15, 1899, he was nominated to the Senate, and the nomination to that office was confirmed on January 17, 1900, and he was commissioned by the President under the above confirmation on January 22, 1900, and took the oath of office under that appointment on January 26, 1900, and since that time has remained in the office to which he was so appointed.

Upon these findings, the Court of Claims decided as a conclusion of law that the appellant was not entitled to recover, and his petition was therefore dismissed.

PECKHAM, J., lead opinion

MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the Court.

The office of general appraiser of merchandise was created by the twelfth section of the Act of Congress approved June 10, 1890, commonly called the Customs Administrative Act. 26 Stat. 131, 136. The material portion of that section reads as follows:

SEC. 12. That there shall be appointed by 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 five of such general appraisers shall be appointed from the same political party. They shall not be engaged in any other business, avocation, or employment, and may be removed from office at any [23 S.Ct. 536] time by the President for inefficiency, neglect of duty, or malfeasance in office. . . .

There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under

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the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that, if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U.S. 419, 425. In speaking of causes of removal, MR. CHIEF JUSTICE FULLER said in that case:

The inquiry is therefore whether there were any causes of removal prescribed by law March 1, 1895, or at the time of the removal. If there were, then the rule would apply that, where causes of removal are specified by Constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure of for such cause as it deemed sufficient.

Various state courts have also held...

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