Morgan v. Nunn
| Decision Date | 24 January 1898 |
| Docket Number | 3,152. |
| Citation | 84 F. 551 |
| Parties | MORGAN v. NUNN. |
| Court | U.S. District Court — Middle District of Tennessee |
Frank P. Bond, for plaintiff.
S Brown, U.S. Atty., and Chas. C. Burch, Assist. U.S. Atty for defendant.
The complainant, William C. Morgan, is a general clerk in the office of the collector of internal revenue for the Fifth district of Tennessee. He was first appointed and qualified during the incumbency of Frank P. Bond as collector; and while serving under that appointment the position was placed within the classified service by the executive order of November 2, 1896, promulgating amended civil service rules and extending the executive civil service so as to include places of the character held by complainant. Upon the expiration of the term of office of said Bond the defendant, David A. Nunn, was appointed and qualified as collector, and said Nunn thereupon reappointed Morgan to the place of general clerk, and took from him a new bond and oath of office. The bill avers that said Nunn, in violation of the civil service law, is now seeking to degrade or remove complainant, and appoint another in his place, wholly upon the ground that complainant is a Democrat; the defendant being a Republican. To accomplish this purpose, the bill charges, said Nunn, well knowing that no charges had been or could be successfully preferred against complainant, and well knowing that the complainant had faithfully and diligently discharged all the duties incumbent upon him as a general clerk, and well knowing that complainant had not applied for, and would not accept, the place of storekeeper and gauger, had nevertheless recommended him for such an appointment to the commissioner of internal revenue, and that the latter had made the appointment as requested, and forwarded to complainant a bond to be executed for the discharge of the duties of storekeeper and gauger. This bond complainant returned without having executed same, and notified both the commissioner and collector that he had never applied for such a place, and would accept no such appointment. The bill then charges that the collector has announced his purpose to remove complainant, and to appoint another in his room and stead, and that he will do so unless restrained, to the irreparable damage and injury of complainant. The place of storekeeper and gauger is a place much less desirable, in point of character and salary, than that held by complainant. A restraining order was granted to preserve the statu quo until formal application could be made for a temporary injunction. By direction of the attorney general, the district attorney for this judicial district has appeared for the defendant, and has filed a demurrer, questioning the jurisdiction of the circuit court to grant the relief sought.
The act of January 16, 1883, commonly called the 'Civil Service Act,' deals in no direct way with the tenure of office of those persons then, or who might thereafter be, included within the classified service. Nor does it make any declaration expressly bearing upon the subject of removals from office, except in the single provision found in the thirteenth section, which prohibits any promotion, degradation, removal, or discharge of any officer or employe for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. It is now well settled that, in the absence of constitutional or statutory regulation, the power of appointment carries with it, as an incident, the power to remove. This was first authoritatively determined in respect to appointments vested by the constitution, or by act of congress, in the president, judges of United States courts, and heads of departments, in the case reported as In re Hennen, 13 Pet. 230; the question there being as to the power of a district judge to remove a district court clerk. The doctrine of that case was followed, in an elaborate opinion, in Parsons v. U.S., 167 U.S. 324, 17 Sup.Ct. 880. The civil service act prescribes no tenure of office, and does not deny the power of removal, except in the particular mentioned. The executive rules in force prior to November 2, 1896, in no way undertook to regulate removals; and it is a part of the history of the country that removals were constantly made, at the will of the appointing power, down to the promulgation of the amended rules of November 2, 1896, and those of July 27, 1897. By paragraph 3 of rule 2 of the civil service rules promulgated by President Cleveland November 2, 1896, it was provided that:
'No person in the executive civil service shall dismiss, or cause to be dismissed, or make any attempt to procure the dismissal of, or in any manner change the official rank or compensation of, any other person therein, because of his political or religious opinions or affiliations.'
This rule was amended July 27, 1897, by President McKinley, who added a new paragraph, as paragraph 8, in these words:
'No removal shall be made from any position subject to competitive examination, except for just cause, and upon written charges filed with the head of the department, or other appointing officer, and of which the accused shall have full notice, and an opportunity to make defense.'
That these authoritative orders of the chief executive have been, or are about to be, most flagrantly violated by the defendant, who is a subordinate executive officer, cannot be, and has not been, denied. But the question contested is the power of a court of equity to prevent such violation by the writ of injunction. This authority is questioned upon two grounds:
1. It is said that the civil service rules, so far as they deny the unrestrained power of removal, are not the law of the land but are mere executive orders, dependent for their force upon the vigilance and earnestness of the chief executive in compelling his appointees to regard and obey regulations voluntarily imposed by him as a regulation by the appointing power of its otherwise unrestrained liberty of removal. To this contention I am constrained to yield my assent. These rules regulating the power of removal were made by the president, and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed; and,...
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Sampson v. Murray 8212 403
...H. Kaplan, The Law of Civil Service 1—22 (1958). 19 171 U.S., at 374—375, 18 S.Ct., at 920. 20 The Court quoted from Morgan v. Nunn, 84 F. 551 (CCMD Tenn.1898), and noted that '(s)imilar decisions have been made in other circuit courts of the United States.' 171 U.S., at 377—378, 18 S.Ct., ......
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...White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199; Walton v. House of Reps., 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115; Morgan v. Nunn, C.C., 84 F. 551; Cox v. Bd. of Fire & Police Com'rs, 55 Neb. 34, 75 N.W. 35; Heffran v. Hutchins, 160 Ill. 550, 43 N.E. 709; Sharpe v. Los Angeles, ......
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...officer from making a wrongful removal of a subordinate appointee...." Berry, 171 U.S. at 377, 18 S.Ct. at 921, citing Morgan v. Nunn, 84 F. 551, 553 (1898). Though Sampson buried this absolute rule, it nevertheless maintained its general distaste for issuing injunctions in the federal empl......
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