Butler v. White

• Decision Date: 08 November 1897
• Citation: 83 F. 578
• Parties: BUTLER v. WHITE, Collector of Revenue, et al. BERRY v. SAME. RUCKMAN v. SAME.
• Court: Circuit Court of Virginia

83 F. 578

BUTLER v. WHITE, Collector of Revenue, et al. BERRY v. SAME. RUCKMAN v. SAME.

United States Circuit Court, D. West Virginia.

November 8, 1897

(Syllabus by the Court.)

The act known as the 'Civil Service Act' is constitutional.

Congress has not delegated to the president and the commission legislative powers.

By rule 3, Sec. 1, the internal revenue service has been placed under the civil service act and rules made in pursuance of it.

The plaintiffs in these actions are officers of the government in the internal revenue service.

They cannot be removed from their positions except for causes other than political, in which event their removal must be made under the terms and provisions of the civil service act and the rules promulgated under it, which, under the act of congress, became a part of the law.

The attempt to change the position and rank of the officers in these cases is in violation of law.

A court of equity has jurisdiction to restrain the appointing power from removing the officers from their positions if such removals are in violation of the civil service act.

Chas J. Faulkner, for complainants.

John W Mason, for commissioner of internal revenue.

Joseph H. Gaines, U.S. Dist. Atty., for defendant White.

JACKSON District Judge.

These causes are now heard upon the bills of plaintiffs and the demurrers and answers of defendants, which, by stipulation of counsel, are heard together. The object and purpose of the bills are to restrain the defendants from removing the plaintiffs in this action from their present positions as gauger and storekeeper, respectively, in the Hannis Distillery, or transferring them to any other and subordinate positions in the same distillery. These officers were commissioned by the government, and assigned to duty, and were in the active discharge of the functions of their respective offices when the defendant White was appointed collector of internal revenue for the district of West Virginia. It is alleged in the bills that this defendant is about to remove the plaintiffs in these actions upon political grounds, and it is claimed that neither the defendant nor the appointing power has the right or power to remove the incumbents from their offices for political reasons. The demurrers to the bills in these cases raise 14 grounds of objection, which may all be embraced in three points:

First. Is the act of congress known as the 'Civil Service Act,' passed in 1871, and as amended in 1883 constitutional? In considering this question, it is well to refer to the history of the country which finally led to the passage of this act. The learned counsel who argued these cases on behalf of the plaintiffs reviewed, to some extent, the action of the various administrations of this government from that of Washington down to 182 when congress passed an act fixing, for the first time, the tenure of office for district attorneys and marshals of the United States. Prior to this time it appears that removals from office were comparatively few, and that such action, when had, was always for causes other than political. After the passage of the act of 1820, subsequent administrations began to make changes in that class of officers who held their positions at the pleasure of the executive. As the country grew, not only in territory but in population, the thirst and greed for office became so great that a growing necessity was felt that some legislation should be had to correct, as far as possible, the evils growing out of the existing system of appointments. Such was the condition of the public mind of the country that President Grant, one of the greatest men that ever occupied the presidential chair, felt it incumbent on himself, in his annual message of December 4, 1870, to all the attention of congress to the importance and necessity of reform in 'the manner of making all appointments. ' He employs the following strong and striking language in his message, from which I quote: 'Always favoring practical reforms, I respectfully call your attention to one abuse, of long standing, which I would like to see remedied by this congress. It is a reform in the civil service of the country. I would have it go beyond the mere fixing of the tenure of office of clerks and employes who do not require 'the advice and consent of the senate' to make their appointments complete. I would have it govern, not the tenure, but the manner of making, all appointments. There is no duty which so embarrasses the executive and heads of departments as that of appointments; nor is there any such arduous and thankless labor imposed on senators and representatives as that of finding places for constituents. The present system does not secure the best men, and often not even fit men for public place. The elevation and purification of the civil service of the government will be hailed with approval by the whole people of the United States.'

In pursuance of this recommendation of President Grant, congress, on the 3d day of March, 1871, passed an act the purpose and object of which, among other things, was 'to regulate admissions to the civil service. ' It appears, however, that this act was insufficient to accomplish the purposes for which it was framed. Its terms and provisions were so criticised that there was a consensus of opinion that further legislation was needed. President Arthur, influenced, no doubt, by the public sentiment of the country, felt it his duty, in his annual message of December 4, 1882, to the Forty-Seventh congress, to call the attention of that body to this subject, in which he employed the following language:

'I trust that, before the close of the present session, some decisive action may be taken for the correction of the evils which adhere in the present method of appointment; and I assure you of my hearty co-operation in any measures which are likely to conduce to that end.'

After this recommendation of President Arthur, congress took up the subject, and promptly passed an act 'to regulate and improve the civil service of the United States,' which was approved by the president on the 16th day of January, 1883. Bills were introduced in both houses of congress, but the bill that was passed by the senate, after much discussion in the house, was passed by the house, and approved by the president. In the discussion that took place upon this bill in the senate some of the most distinguished lawyers of that body participated, among whom were Senator Hoar, of Massachusetts, Senator Edmunds, of Vermont, Senator Brown, of Georgia Senator George, of Mississippi, Senator Ingalls, of Kansas, Senator Cockerell, of Missouri, and Senator Allison, of Iowa. I refer to the utterances of these distinguished lawyers as part of the contemporaneous history of this act, and it is to be observed that not one of these gentlemen entertained any doubts as to the constitutionality of this act, but the general trend of the discussion seems to have conceded its constitutionality. The utterances of both Senator Hoar and Senator Edmunds maintains its constitutionality, and the skeptical legal mind that differ with me, and entertains doubts as to the constitutionality of the act, is referred to the able discussions that took place at the time it was under consideration.

This court might well content itself with what it has now said, but I am not either without authority or precedent upon this subject. The constitution of the United States (article 1, Sec. 8, cl. 18) confers upon congress the right 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or office thereof. ' Under this provision of the constitution, congress, as early as the 27th day of July, 1789, passed an act that 'the head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use and preservation of the records, papers and property appertaining to it. ' That act has been in force from the day of its passage to the present time. Here is a power conferred by the authority of congress upon the head of each department, and is in no sense a delegated power of legislation. The evident purpose of congress was to furnish each department with authority to regulate the conduct of its officers and employes, and the distribution and performance of the business of the office. If such a power to legislate and been delegated under that act, the courts of this country would long since have been invoked to pass upon the power of congress to delegate a power to the head of any department which alone belonged to it; but long acquiescence in the act is of itself sufficient evidence of the right of congress to pass it.

Judge Marshall, in his opinion in the case of McCulloch v. Maryland, 4 Wheat. 421, uses the following language, which I think appropriate to the discussion of the question under consideration:

'All must admit that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction on the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the

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