United States v. Germaine

Citation25 L.Ed. 482,99 U.S. 508
PartiesUNITED STATES v. GERMAINE
Decision Date01 October 1878
CourtUnited States Supreme Court

On a certificate of division in opinion between the judges of the Circuit Court of the United States for the District of Maine.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States.

Mr. Thomas B. Reed, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

The defendant was appointed by the Commissioner of Pensions to act as surgeon, under the act of March 3, 1873, the third section of which is thus stated in the Revised Statutes as sect. 4777:——

'That the Commissioner of Pensions be, and he is hereby, empowered to appoint, at his discretion, civil surgeons to make the periodical examination of pensioners which are or may be required by law, and to examine applicants for pension, where he shall deem an examination by a surgeon appointed by him necessary; and the fee for such examinations, and the requisite certificates thereof in duplicate, including postage on such as are transmitted to pension agents, shall be two dollars, which shall be paid by the agent for paying pensions in the district within which the pensioner or claimant resides, out of any money appropriated for the payment of pensions, under such regulations as the Commissioner of Pensions may prescribe.'

He was indicted in the district of Maine for extortion in taking fees from pensioners to which he was not entitled. The law under which he was indicted is thus set forth in sect. 12 of the act of 1825 (4 Stat. 118):——

'Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment not more than one year, according to the aggravation of his offence.'

The indictment being remitted into the Circuit Court, the judges of that court have certified a division of opinion upon the questions whether such appointment made defendant an officer of the United States within the meaning of the above act, and whether upon demurrer to the indictment judgment should be rendered for the United States or for defendant.

The counsel for defendant insists that art. 2, sect. 2, of the Constitution, prescribing how officers of the United States shall be appointed, is decisive of the case before us. It declares that 'the President shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they may think proper, in the President alone, in the courts of law, or in the heads of departments.'

The argument is that provision is here made for the appointment of all officers of the United States, and that defendant, not being appointed in either of the modes here mentioned, is not an officer, though he may be an agent or employ e working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its officers.

The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt. This Constitution is the supreme law of the land, and no act of Congress is of any validity which does not rest on authority conferred by that instrument. It is, therefore, not to be supposed that Congress, when enacting a criminal law for the punishment of officers of the United States, intended to punish any one not appointed in one of those modes. If...

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226 cases
  • Constitutional Limitations on Federal Government Participation in Binding Arbitration, 95-16
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • 7 Septiembre 1995
    ...[ 212] The Court also addressed the distinction between employees and persons whose relationship to the government takes some other form in Germaine. There, the Court whether a surgeon appointed by the Commissioner of Pensions " 'to examine applicants for pension, where [the Commissioner] s......
  • U.S. ex rel. New v. Rumsfeld
    • United States
    • U.S. District Court — District of Columbia
    • 22 Diciembre 2004
    ...Art. II § 2, cl. 2; see Buckley v. Valeo, 424 U.S. 1, 124-25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); United States v. Germaine, 99 U.S. 508, 511-12, 9 Otto 508, 25 L.Ed. 482 (1878). The Appointments Clause imposes different procedural requirements on the designation of these two types of offi......
  • Melcher v. Federal Open Market Committee
    • United States
    • U.S. District Court — District of Columbia
    • 25 Septiembre 1986
    ...31 L.Ed. 534 (1888) (relying on United States v. Mouat, 124 U.S. 303, 8 S.Ct. 505, 31 L.Ed. 463 (1888), and United States v. Germaine, 9 Otto 508, 99 U.S. 508, 25 L.Ed. 482 (1878)). Upon a review of the governing statute and of the applicable constitutional provisions, the Court has conclud......
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    • United States
    • U.S. District Court — District of Minnesota
    • 20 Enero 2022
    ...2. Thus, the Appointments Clause divides officers into two classes—principal officers and inferior officers. United States v. Germaine , 99 U.S. 508, 509-511, 25 L.Ed. 482 (1879). Principal officers must be appointed by the President with the advice and consent of the Senate. Arthrex, Inc. ......
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8 books & journal articles
  • Article II Separation of Powers and the President's Enforcement Right
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • 20 Abril 2009
    ...Clause analysis. Thus, when in Buckley 45 the Court had to categorize the Federal Elections Commission for Appointments Clause 36. 99 U.S. 508 (1879). 37. Id . at 509. 38. Id . at 511-12. 39. 501 U.S. 868 (1991). 40. Id . at 870-71 (citing 26 U.S.C. §7443A(a), (b) (1988)). 41. Id . at 881 (......
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    • United States
    • Notre Dame Law Review Vol. 93 No. 5, May 2018
    • 1 Mayo 2018
    ...and temporarily," "[t]herefore, he [was] not an 'officer,' within the meaning of the [Appointments Clause]"); United States v. Germaine, 99 U.S. 508, 511-12 (1878) (determining that a surgeon was not an officer because his duties were "not continuing and permanent, and [were] occasional and......
  • THE DEFENDER GENERAL.
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    • 1 Mayo 2020
    ...v. United States, 520 U.S. 651, 659-61 (1997). (249) Lucia v. S.E.C., 138 S. Ct. 2044, 2051 (2018) (quoting United States v. Germaine, 99 U.S. 508, 511 (1879)); see also Officers of the U.S. Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 76-78 (250) Lucia, 138 S. Ct. at 20......
  • The new sovereignty and the old constitution: the chemical weapons convention and the Appointments Clause.
    • United States
    • Constitutional Commentary Vol. 15 No. 1, March 1998
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    ...granted, 114 S. Ct. 2703 (1994), cert. dismissed, 115 S. Ct. 537 (1995). (49.) Buckley, 424 U.S. at 129. (50.) United States v. Germaine, 99 U.S. 508, 509 (1879) ("The Constitution for purposes of appointment...divides all its officers into two (51.) Buckley, 424 U.S. at 126 (citing Myers v......
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