Allister v. United States

• Court: U.S. Supreme Court
• Writing for the Court: HARLAN
• Citation: Allister v. United States, 141 U.S. 174, 11 S.Ct. 949, 35 L.Ed. 693 (1891)
• Decision Date: 25 May 1891
• Parties: McALLISTER v. UNITED STATES

141 U.S. 174

11 S.Ct. 949

35 L.Ed. 693

McALLISTER v. UNITED STATES.

May 25, 1891.

S. F. Phillips, Frederic D. McKenney, John S. Blair, and Jos. K. McCammon, for appellant.

Sol. Gen. Taft, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

Ward McAllister, Jr., was appointed by President Arthur, by and with the advice and consent of the senate, to be district judge for the district of Alaska. His commission, of date July 5, 1884, authorized and empowered him to execute and fulfill the duties of that office according to the constitution and laws of the United States, and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining, 'for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject to the conditions prescribed by law.' He took the required oath of office on the 23d day of August, 1884.

On the 21st day of July, 1885, President Cleveland, in writing, 'by virtue of the authority conferred upon the president of the United States by section 1768 of the Revised Statutes of the United States,' suspended him from office until the end of the next session of the senate, and designated 'Edward J. Dawne, of Oregon, to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all provisions of law applicable thereto.' Dawne took the prescribed oath of office on the 20th of August, 1885. Subsequently, December 3, 1885, the president, by virtue of the same statute, suspended, Dawne, and designated Lafayette Dawson, of Missouri, to perform the duties of the suspended officer, subject to all the provisions of law applicable thereto. Dawson took the required oath of office December 16, 1885. Having been nominated, and, by and with the advice and consent of the senate, appointed to this position, dawson was commissioned, August 2, 1886, for the term of four years from that date, and until his successor should be appointed and qualified, subject to the provisions prescribed by law. He took the oath of office on the 3d of September, 1886.

Judge McAllister, without resistance, vacated the office on the 28th of August, 1885, and received the salary up to and including that date, after which he did not perform any of the duties or exercise any of the functions of the position. The salary appropriated for the period between August 29, 1885, and March 12, 1886, inclusive, has not been paid to any one, and remains in the treasury to the credit of the proper appropriation. Judge Dawson has received the salary since the latter date, except for the period between August 6, 1886, andSep tember 2, 1886, the salary for which has not been paid to any one, but remains in the treasury.

The appellant has not instituted proceedings of any kind other than this action to determine his right or title to the office in question since August 28, 1885, on which day he vacated his position.

He claims by his petition in this case, 'as due him for said salary from the 29th of August, 1885, to the 6th day of September, 1886, the sum of three thousand and seventy dollars.'

Counsel for the appellant state his contention to be (1) that he was entitled to hold the office of district judge for the district of Alaska for four years from July 5, 1884, the date of his commission, and until his successor was appointed and qualified; or, (2) in the alternative, that his right to perform the duties and receive the emoluments of the office continued until September 3, 1886, when Judge Dawson qualified, upon which basis the amount due him would be $3,041.09; or (3) that he is, in any event, entitled to the salary from the first day after the end of the session of the senate, August 7, 1886 to September 3, 1886, when his siccessor qualified, upon which basis there would be due him $221.91.

Although the determination of the second of these propositions may, to some extent, involve a decision of the first one, it is proper to remark that no question is distinctly raised by the petition as to the right of the appellant to hold the district judgeship for Alaska for the full term designated in his commission, namely, four years, and until his successor was apointed and qualified. He sues only for the salary from the 29th of August, 1885, the day succeeding his suspension from office, to the 6th day of September, 1886, a few days after Dawson took the oath of office.

The government disputes the right of the appellant to receive any part of the sum for which he brings suit. Its defense rests upon section 1768 of the Revised Statutes. That section and the one preceding it are as follows:

'Sec. 1767. Every person holding any civil office to which he has been or may hereafter be appointed by and with the advice and consent of the senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the senate, or by the appointment, with the like advice and consent, of a successor in his place, except as herein otherwise provided.

'Sec. 1768. During any recess of the senate the president is authorized, in his discretion, to suspend any civil officer appointed by and with the advice and consent of the senate, except judges of the courts of the United States, until the end of the next session of the senate, and to designate some suitable person, subject to be removed, in his discretion, by the designation of another, to perform the duties of such suspended officer in the mean time; and the person so designated shall take the oath and give the bond required by law to be taken and given by the suspended officer, and shall, during the time he performs the duties of such officer, be entitled to the salary and emoluments of the office, no part of which shall belong to the officer suspended. The president shall, within thirty days after the commencement of each session of the senate, except for any office which in his opinion ought not to be filled, nominate persons to fill all vacancies in office which existed at the meeting of the senate, whether temporarily filled or not, and also in the place of all officers suspended; and, if the senate during such session shall refuseto advise and consent to an appointment in the place of any suspended officer, then, and not otherwise, the president shall nominate another person as soon as practicable to the same session of the senate for the office.'

These sections were brought forward from the act of March 2, 1867, regulating the tenure of certain civil offices, and the act of April 5, 1869, amendatory thereof. 14 St. p. 430, c. 154; 16 St. p. 6, c. 10. By an act of congress approved March 3, 1887, those sections, as well as sections 1769-1772, relating to the same subject, were repealed, subject to the condition that the repeal should not affect any officer theretofore suspended, or any designation, nomination, or appointment previously made, under or by virtue of the repealed sections. 24 St. p. 500, c. 353. As the appointment and suspension of Judge McAllister occurred prior to the passage of the act of 1887, the present case is not controlled by its provisions, but depends upon the effect to be given to the sections of the Revised Statutes above quoted, interpreted in the light of the act establishing the court of which the appellant was made judge in the year 1884. What may be the powers of the president over territorial judges, now that section 1768 is repealed, is a question we need not now discuss.

By an act passed May 17, 1884, (23 St. p. 24, c. 53,) the territory ceded to the United States by Russia, and known as Alaska, was constituted a civil and judicial district with a governor, attorney, judge, marshal, clerk, and commissioners, to be appointed by the president, by and with the advice and consent of the senate, and to hold their respective offices for the term of four years, and until their successors were appointed and qualified. Sections 1, 9. The third section relates to the court established by the act, and is in these words: 'That there shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law; and a district judge shall be appointed for a said district, who shall, during his term of office, reside therein, and hold at least two terms of said court therein in each year,—one at Sitka, beginning on the first Monday in May, and the other at Wrangel, beginning on the first Monday in November. He is also autorized and directed to hold such special sessions as may be necessary for the dispatch of the business of said court, at such times and places in said district as he may deem expedient, and may adjourn such special session to any other time previous to a regular session. He shall have authority to employ interpreters, and to make allowances for the necessary expenses of his court.' By the seventh section, the general laws of Oregon, then in force, were declared to be laws of Alaska, so far as the same were applicable, and not in conflict with the provisions of that act or of the laws of the United States. By the same section writs of error in criminal cases were to go to the district of Alaska from the United States circuit court for the district of Oregon in the cases provided in chapter 176 of the Laws of 1879; the jurisdiction by that chapter conferred upon circuit courts of the United States being given to the circuit court of Oregon, and the final judgments or decrees of said circuit and district...