Priddie v. Thompson

• Citation: 82 F. 186
• Court: Circuit Court of Virginia
• Decision Date: 28 July 1897
• Parties: PRIDDIE v. THOMPSON, United States Marshal.

82 F. 186

PRIDDIE v. THOMPSON, United States Marshal.

United States Circuit Court, D. West Virginia.

July 28, 1897

J. T McGraw, J. H. Holt, and Z. T. Vinson, for complainant.

Joseph H. Gaines, for defendant.

JACKSON District Judge.

This cause is now heard upon a motion for an injunction upon a bill filed by the complainant, an office deputy marshal of the United States for the district of West Virginia, against the defendant, the marshal of the United States for the district of West Virginia. The defendant files a demurrer to the bill, and insists-- First, upon the right of the marshal to remove the complainant in this cause from the position he holds; second, that there exists no legal remedy to prevent the marshal from removing the complainant from the office and appointing another in his place. Congress 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. 22 Stat. 403. I infer that the purpose of congress was to promote efficiency in the public service and the exercise of such a power was clearly within its legislative scope. Under and by virtue of the provisions of this act the commission was authorized 'to make regulations for their guidance' in the execution of the powers conferred upon it, subject to the rules that may 'be made by the president.' Upon the 28th day of May 1896, congress passed an act 'allowing the marshals of the United States to employ necessary office deputies and clerical assistants, if in the opinion of the attorney general the public interest requires it.' 29 Stat. 182, Sec. 10. The bill alleges that the complainant was appointed, under written authority from the attorney general, by C.E. Wells, then marshal of this district, 'chief office deputy marshal,' with the approval of the attorney general, and that he qualified as such officer on the 1st day of July, 1896. The form of the appointment was prepared and sent to the marshal from the department of justice, as provided for in the act of May 28, 1896, designating and authorizing the complainant to act as chief office deputy of the United States marshal, and to hold said position subject to the conditions prescribed by the tenth section of said act. Prior to the act of 1896, deputy marshals were all on the same footing, and held their positions at the pleasure of the marshal, unless removed by the district court. By the tenth section of the act of 1896 there was a provision made for a new grade of deputy marshals, to be known as 'office deputies,' 'when, in the opinion of the attorney general, the public service requires it'; salaries to be fixed by the attorney general, and to be paid out of the treasury of the United States. Section 11 of the same act provides for the appointment of deputy marshals 'who shall be known as field deputies, and, unless sooner removed by the district court, shall hold office during the pleasure of the marshal, and shall receive as compensation for their services three-fourths of their gross fees, including mileage, as provided by law. ' By the terms of section 10 of the act, no limitation is imposed upon the tenure of the position of the office deputy, nor is there any provision found in the act that places the position at the pleasure of the marshal. He is paid directly from the treasury; but in the case of the field deputy the tenure of the office is at the pleasure of the marshal, and, as before stated, he is paid out of the gross fees of his office. It is claimed by the complainant in this action that he is protected in his position by the express terms of the civil service law, and the regulations made to execute its provisions; that he has been assigned by the order of the attorney general to the position of chief office deputy at a salary of $1,800 per annum. It is apparent that there is a striking difference between the two sections referred to, and that congress did not intend that office deputies should be removed except for good cause, than for political or religious opinions or affiliations,' but intended to keep the office in the hands of trained men, leaving the field deputies along subject to removal. It would seem that congress intended that office deputies should not be removed from their positions by a marshal who happens to entertain different political opinions, so long as such deputy was an efficient and faithful officer. There is no provision in the act to remove an office deputy once installed in his position, not even for cause.

The second section, par. 1, of the civil service act provides that the civil service commission shall 'aid the president as he may request in preparing suitable rules for carrying the act into effect,' and makes it the duty of 'all officers of the United States in the various departments and offices to which any such rules may relate to aid in carrying such rules into effect. ' Under the provisions of this act the president promulgated, on the 6th day of May, 1896, certain rules prepared by him in connection with the civil service commission. The additions under the revision of the rules as promulgated May 6, 1896, brought into the classified service 'office deputy marshals.' 13 Civ.Serv.Rep.pp. 101, 102. The records of the civil service commission show that this complainant was, by the joint action of the commission and the attorney general, recognized as belonging to the classified service, and he is so reported in the register of the department of justice for 1897. The marshal of this district, by letter bearing date June 15, 1896, addressed to the attorney general, recommended to him the complainant as his chief office deputy, which the attorney general approved in a letter bearing date June 29, 1896, the appointment to take effect on the 1st day of July, 1896, and which position he has held, unmolested, up to the time of the filing of this bill. It does not appear that he ever passed the civil service examination, but, being in office at the time he was placed in the classified service, as provided for by section 7, rule 2, he was exempt from such examination.

I have referred to such portions of the act of congress creating the civil service commission, and the rules promulgated under it as I think apply to the case under consideration. It is to be presumed that congress intended, when it passed the act, that it should be observed in good faith by all the officers of the government who came within its provisions. It will be observed that the civil service commission, as well as the attorney general, in construing section 10 of the act of 1896, must have reached the conclusion that the office deputies come within the provisions of the act, and by their joint action they have placed them in the classified service. So far as the attorney general took action in regard to the classification of these deputies, he must have concluded that by the terms of section 10 the appointment was vested in him upon the recommendation of the marshal. The marshal could not appoint without his approval, and it was a condition precedent that the marshal should recommend a person for the position before the attorney general could approve it. Certainly congress never intended that the marshall should recommend a person to himself for appointment. To my mind, there can be no question that the real source of power in making this appointment was with the attorney general, upon the recommendation of the marshal. If this conclusion is wrong, why should the marshal be vested with the power of recommendation? If the marshal is the appointing power, there would be no occasion for him to recommend a person for appointment. It is absurd to suppose that the law intended that the appointing power should be invested with the power of recommendation to itself. When we look to the provision which fixed the salary of the office deputies, we find that their salaries are fixed by the attorney general, and paid monthly out of the treasury of the United States, and not out of the fees earned by them as provided for field deputies in section 11. I have concluded, therefore, that the office deputy or clerical assistant is an appointee of the attorney general, upon the recommendation of the marshal, for the reason that no person recommended by the marshal could be appointed unless approved by the attorney general. It would seem that when an appointment is made by the joint action of the attorney general and the marshal, and a party appointed has been placed in the classified service, that he would hold the position during good behavior. Not so with what is known as a 'field deputy', who holds his position at the pleasure of the marshal, unless removed by order of the district court. He is appointed by the marshal upon his own responsibility, and paid by fees as he earns them. It is apparent that there are two...