Burnap v. United States

• Decision Date: 19 April 1920
• Docket Number: No. 228,228
• Citation: 64 L.Ed. 692,40 S.Ct. 374,252 U.S. 512
• Parties: BURNAP v. UNITED STATES
• Court: U.S. Supreme Court

252 U.S. 512

40 S.Ct. 374

64 L.Ed. 692

BURNAP

v UNITED STATES.

No. 228.

Argued March 12, 1920.

Decided April 19, 1920.

[Syllabus from 512-513 intentionally omitted] Mr. George A. King, of Washington, D. C., for appellant.

Mr. Assistant Attorney General Davis, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

On July 1, 1910, Burnap entered upon duty in the office of public buildings and grounds as landscape architect at the salary of $2400 a year, having been appointed to that position by the Secretary of War. On September 14, 1915, he was suspended, upon charges, from duty and pay, and on August 3, 1916, he was discharged 'in order to promote the efficiency of the service.' His successor was not p pointed until July 28, 1917. Burnap contends that his suspension and discharge were illegal, and hence inoperative; that he retained his position until his successor was appointed; and that until such appointment he was entitled to his full salary. United States v. Wickersham, 201 U. S. 390, 26 Sup. Ct. 469, 50 L. Ed. 798. His claim for such salary was rejected by the Auditor of the War Department (of which the office of public buildings and grounds is a part), and, upon appeal, also by the Comptroller of the Treasury. Then this suit was brought in the Court of Claims. There his petition was dismissed, and the case comes here on appeal.

Burnap rests his claim mainly upon the fact that he was appointed by the Secretary of War, contending that therefore only the Secretary of War could remove him (21 Op. Attys. Gen. 355), and that no action tantamount to a removal by the Secretary was taken until his successor was appointed. Before discussing the nature and effect of the action taken, it is necessary to consider the general rules of law governing appointment and removal in the civil service of the United States, the statutes relating to the office of public buildings and grounds, and those providing for the appointment of a landscape architect therein.

First. The Constitution (article 2, § 2, subd. 2) confers upon the President the power to nominate, and with the advice and consent of the Senate to appoint, certain officers named and all other officers established by law whose appointments are not otherwise therein provided for; but it authorizes Congress to vest the appointment of inferior officers either in the President alone, in the courts of law, or in the heads of departments (6 Op. Attys. Gen. 1). The power to remove is, in the absence of statutory provision to the contrary, an incident of the power to appoint. Ex parte Hennen, 13 Pet. 230, 259, 260, 10 L. Ed. 138; Blake v. United States, 103 U. S. 227, 231, 26 L. Ed. 462; United States v. Allred, 155 U. S. 591, 594, 15 Sup. Ct. 231, 39 L. Ed. 273; Keim v. United States, 177 U. S. 290, 293, 294, 20 Sup. Ct. 574, 44 L. Ed. 774; Reagan v. United States, 182 U. S. 419, 426, 21 Sup. Ct. 842, 45 L. Ed. 1162; Shurtleff v. United States, 189 U. S. 311, 316, 23 Sup. Ct. 535, 47 L. Ed. 828. And the power of suspension is an incident of the power of removal.

Section 169 of the Revised Statutes (Comp. St. § 248) provides that:

'Each head of a department is authorized to employ in his department such number of clerks of the several classes recognized by law, and such messengers, assistant messengers, copyists, watchmen, laborers, and other employes, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year.'

The term 'head of a department' means, in this connection, the Secretary in charge of a great division of the executive branch of the government, like the State, Treasury, and War, who is a member of the Cabinet. It does not include heads of bureaus or lesser divisions. United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482. Persons employed in a bureau or division of a department are as much employes in the department within the meaning of Section 169 of the Revised Statutes as clerks or messengers rendering service under the immediate supervision of the Secretary. Manning's Case, 13 Wall. 578, 580, 20 L. Ed. 706; United States v. Ashfield, 91 U. S. 317, 319, 23 L. Ed. 396. The term 'employ' is used as the equivalent of appoint. 21 Op. Attys. Gen. 355, 356. The term 'clerks and other employes,' as there used, is sufficiently broad to include persons filling positions which require technical skill, learning and professional training. 29 Op. Attys. Gen. 116, 123; 21 Op. Attys. Gen. 363, 364; 20 Op. Attys. Gen. 728. The distinction between officer and employe in this connection does not rest upon differences in the qualifications necessary to fill the positions or in the character of the service to be performed. Whether the ic umbent is an officer or an employe is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto. 15 Op. Attys. Gen. 3; 17 Op. Attys. Gen. 532; 26 Op. Attys. Gen. 627; 29 Op. Attys. Gen. 116; United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; United States v. Moore, 95 U. S. 760, 762, 24 L. Ed. 588; United States v. Perkins, 116 U. S. 483, 6 Sup. Ct. 449, 29 L. Ed. 700; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463; United States v. Hendee, 124 U. S. 309, 8 Sup. Ct. 507, 31 L. Ed. 465; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674; United States v. Schlierholz (D. C.) 137 Fed. 616; Martin v. United States, 168 Fed. 198, 93 C. C. A. 484.

Second. The powers and duties of the office of public buildings and grounds had their origin in the Act of July 16, 1790, c. 28, 1 Stat. 130, § 2, which authorized the President to appoint three Commissioners to lay out a district for the permanent seat of the government. By Act of May 1, 1802, c. 41, 2 Stat. 175, the offices of Commissioners were abolished and their duties devolved upon a Superintendent, to be appointed by the President. By Act of April 29, 1816, c. 150, 3 Stat. 324, the office of Superintendent was abolished and his duties devolved upon a Commissioner of Public Buildings. By Act of March 2, 1867, c. 167, § 2, 14 Stat. 466, the office of Commissioner was abolished and his duties devolved upon the Chief of Engineers. By section 1797 of the Revised Statutes, as amended by Act of April 28, 1902, c. 594, 32 Stat. 152 (Comp. St. § 3308), it is declared that the Chief of Engineers has 'charge of the public buildings and grounds in the District of Columbia, under such regulations as may be prescribed by the President through the War Department.' And section 1812 (Comp. St. § 3327) requires the Chief of Engineers, as Superintendent of Public Buildings and Grounds, to submit annual reports to the Secretary of War to accompany the annual message of the President to Congress.

Third. There is no statute which creates an office of landscape architect in the office of public buildings and grounds nor any which defines the duties of the position. The only authority for the appointment or employment of a landscape architect in that office is the legislative, executive, and judicial appropriation Act of June 17, 1910, c. 297, 36 Stat. 504 (and later appropriation acts in the same form, 36 Stat. 1207; 37 Stat. 388, 766; 38 Stat. 482, 1024; 39 Stat. 93), which reads as follows:

'Public Buildings and Grounds.

'Office of Public Buildings and Grounds: Assistant engineer, two thousand four hundred dollars; assistant and chief clerk, two thousand four hundred dollars; clerk of class four; clerk of class three; clerk and stenographer, one thousand four hundred dollars; messenger; landscape architect, two thousand four hundred dollars; surveyor and draftsman, one thousand five hundred dollars; in all, fourteen thousand three hundred and forty dollars.'

Then follow the foremen and night and day watchmen in the parks.

Prior to July 1, 1910, similar appropriation acts had provided for a 'landscape gardener' at the same salary. There is no statute which provides specifically by whom the landscape...