Ferdinand Shurtleff v. United States

• Decision Date: 06 April 1903
• Docket Number: No. 76,76
• Citation: 189 U.S. 311,23 S.Ct. 535,47 L.Ed. 828
• Parties: FERDINAND N. SHURTLEFF, Appt., v. UNITED STATES
• Court: U.S. Supreme Court

189 U.S. 311

23 S.Ct. 535

47 L.Ed. 828

FERDINAND N. SHURTLEFF, Appt.,

v UNITED STATES.

No. 76.

Argued January 20, 1903.

Decided April 6, 1903.

The appellant seeks to review a judgment of the court of claims denying his right to be paid the salary pertaining to 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. at L. 131, U. S. Comp. Stat. 1901, p. 1886), 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 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.

Mr. Edwin B. Smith and Messrs. Smith & Barker for appellant.

Assistant Attorney General Pradt for appellee.

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 12th section of the act of Congress approved June 10, 1890, commonly called the customs administrative act. 26 Stat. at L. 136, chap. 407, U. S. Comp. Stat. 1901, p. 1931. 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 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 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, 46 L. ed. 1162, 1164, 21 Sup. Ct. Rep. 845. 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 that, where an officer may be removed for certain causes, he is entitled to notice and a hearing. See Dullam v. Willson, 53 Mich. 392, 401, 51 Am. Rep. 128, 19 N. W. 112; Page v. Hardin, 8 B. Mon. 668, 672; Willard's Appeal, 4 R. I. 597; Com. ex rel. Bowman v. Slifer, 25 Pa. 23, 28, 64 Am. Dec. 680; State ex rel. Atty. Gen. v. Hawkins, 44 Ohio St. 98, 114, 5 N. E. 228; Biggs v. McBride, 17 Or. 640, 650, 5 L. R. A. 115, 21 Pac. 878; Ham v. Boston Bd. of Police, 142 Mass. 90, 7 N. E. 540.

It must be presumed that the President did not make the removal for any cause assigned in the statute, because there was given to the officer no notice or opportunity to defend. The question then arises, Can the President exercise the power of removal for any other causes than those mentioned in the statute? In other words, Is he restricted to a removal for those causes alone, or can he exercise his general power of removal without such restriction?

We assume, for the purposes of this case only, that Congress could attach such conditions to the removal of an officer appointed under this statute as to it might seem proper; and, therefore, that it could provide that the officer should only be removed for the causes stated, and for no other, and after notice and an opportunity for a hearing. Has Congress, by the 12th section of the above act, so provided?

It cannot now be doubted that, in the absence of constitu- tional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though appointed by and with the advice and consent of the Senate. Ex parte Hennen, 13 Pet. 230; Parsons v. United States, 167 U. S. 324, 42 L. ed. 185, 17 Sup. Ct. Rep. 880, and cases cited. To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Congress has regarded the office as of sufficient importance to make it proper to fill it by an appointment to be made by the President and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President, and to be administered by officers appointed by him (and confirmed by the Senate) with reference to his constitutional responsibility to see that the laws are faithfully executed. Art. 2, § 3.

In Blake v. United States, ...