United States ex rel. Palmer v. Lapp

• Decision Date: 30 June 1917
• Docket Number: 2975.
• Citation: 244 F. 377
• Parties: UNITED STATES ex rel. PALMER v. LAPP, U.S. MARSHAL.
• Court: U.S. Court of Appeals — Sixth Circuit

244 F. 377

UNITED STATES ex rel. PALMER v. LAPP, U.S. MARSHAL.

No. 2975.

United States Court of Appeals, Sixth Circuit.

June 30, 1917

W. L Flory, of Cleveland, Ohio, for plaintiff in error.

Jos. C Breitenstein, Asst. U.S. Atty., of Cleveland, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

The United States marshal for the Northern district of Ohio revoked the appointment of his chief office deputy, and the court below refused to issue a writ of mandamus to compel the marshal to reinstate the deputy. The facts on which the mandamus proceeding was based and the reasons for denying the writ appear in the trial judge's opinion, hereafter set out. In our judgment the writ was rightly denied, and subject to some explanation, we approve of the reasoning on which refusal of the writ was based. It is true that at the time the relator, Palmer, received his last appointment as chief office deputy, August 4, 1913, he belonged to the classified civil service; and that according to section 6 of the act of August 24, 1912, c. 389, 37 Stat. 555 (Comp. St 1916, Sec. 3287), 'no person in the classified civil service' could be removed except for such cause as would 'promote the efficiency of said service, and for reasons given in writing' and upon notice, service of a copy of any charges preferred, and allowance of a reasonable time to answer the charges in writing. It is to be observed of this provision that in terms it applies generally to all persons engaged in the classified civil service; and admittedly the legal removal of relator could have been effected only through observance of the mode prescribed by that act if no other legislation had intervened. However, on October 22, 1913, an act was passed in which it was provided, in paragraph entitled 'Civil Service Commission' (38 Stat.pt. 1, p. 208):

'That hereafter any deputy collector of internal revenue or deputy marshal who may be required by law or by authority or direction of the collector of internal revenue or the United States marshal to execute a bond to the collector of internal revenue or United States marshal to secure faithful performance of official duty, may be appointed by the said collector or marshal, who may require such bond without regard to the provisions of an Act of Congress entitled 'An act to regulate and improve the civil service of the United States,' approved January sixteenth, eighteen hundred and eighty-three, and amendments thereto, or any rule or regulation made in pursuance thereof, and the officer requiring said bond shall have power to revoke the appointment of any subordinate officer or employe and appoint his successor at his discretion without regard to the act, amendments, rules, or regulations aforesaid.'

It will be noticed that this provision is special in its terms and application; it relates distinctly and only to deputy collectors and deputy marshals and their principals, respectively; and the right to revoke appointments of either of these classes of deputies and to appoint successors is discretionary in the several collectors and marshals; that is, such power of revocation and appointment may be exercised by those officials according to their individual discretion, since 'the grant of a general power to remove carries with it the right to remove at any time or in any manner deemed best, with or without notice. ' Eckloff v. District of Columbia, 135 U.S. 240, 241, 10 Sup.Ct. 752, 34 L.Ed. 120.

Judge Sater was undoubtedly right in applying the established rule that, where there is any conflict between a general statutory provision and a special one upon the same subject, the former must yield to the latter regardless of the fact that the two provisions are found in different enactments. It is to be presumed, for example, that by the special act here involved Congress intended to create an exception as respects the appointment and removal of these two classes of deputies. That there is conflict between the two enactments, the one of 1912 and the other of 1913, concerning deputy collectors and deputy marshals who belong to the classified civil service, seems clear enough. The act of 1912, as we have seen, is comprehensive in its application to all persons 'in the classified civil service,' and it forbids their removal except in accordance with the formal mode there prescribed; while the act of 1913 authorizes summary removal and appointment of the two classes of deputies mentioned, one of which, through express official designation, includes relator. This conflict is accentuated by the fact that the removing officer is invested with power to appoint a successor regardless of the Civil Service Act of January 16, 1883. True, the scheme of this last-mentioned act is not directly to provide for removal from office, but it is to discourage unmerited removal by requiring vacancies to be filled only with persons who have passed competitive examinations according to requirements of the act or of rules adopted in pursuance of it. 22 Stat. 403, 406, Secs. 2, 7 (Comp. St. 1916, Secs. 3272, 3278); Flemming v. Stahl (D.C.) 83 F. 943, 944; Woods v. Gary, Postmaster General, 25 Wash.Law.Rep. 591, 594, 595; Page v. Moffett (C.C.) 85 F. 38, 40. It is therefore not open to relator to claim both protection of the act of 1912 and exemption from that of 1913, upon any theory of lack of conflict between the two acts.

There is another feature of the act of 1913 which deserves attention. Applying its language concretely, after the passage of the act the marshal might have required relator to execute a bond to him to secure faithful performance of official duty, and thereupon have revoked relator's appointment and named his successor, at the marshal's discretion. This does not appear to have been the method chosen. Its adoption, however, would have been, at most, a mere formality; and the allowance of a writ of mandamus would have been fruitless, since it could have been avoided by the marshal through mere demand of a bond and notice that the appointment would, upon presentation of the bond, be revoked. It results that, for reasons satisfactory to Congress, official positions like that of relator were taken out of the restraints of civil service legislation, including the restraint of the act of 1912, and placed within the plenary power and control of the marshal. The subject was within the power of Congress, and it is vain to urge that the courts can rightfully interfere with such legislation. The point that the act of 1913 was a 'rider' to an appropriation bill cannot affect construction; and it should not be overlooked by relator's counsel that the act of 1912, upon which they rely, is of the same character.

The judgment must be affirmed.

The opinion of the learned trial judge follows:

SATER District Judge.

The relator, Palmer, claiming an unlawful revocation of his appointment as chief office deputy of the United States marshal, prays that a writ of mandamus issue requiring his restoration by the defendant to that position.

The relator, as a duly qualified person, was in 1892 appointed to a position in the competitive classified civil service in the post office department of the city of Cleveland. With the consent of the proper governmental departments, he was in 1910 transferred to the marshal's office, following which, to validate such transfer, he took a noncompetitive examination, was passed to the classified service, and filled the position of chief office deputy under the defendant's predecessor. On August 4, 1913, the defendant, after his designation and qualification as marshal, regularly appointed the relator as his chief office deputy at a salary of $2,000 per year, who thereupon qualified and entered upon the discharge of his duties. On January 13, 1916, defendant informed him of an intended change in his position, and at his instance cheerfully gave him a letter recommending him as a capable, painstaking, industrious man, who can prove his worth in any capacity, and who, in so far as the defendant knew, had excellently kept the records of the marshal's office. The parties discussed, as between themselves, the proposed change from time to time, and on February 8 the relator notified the defendant that he could not be removed from his position unless the defendant complied with the act of August 24, 1912 (37 Stat. 555), which provides, in so far as need be noticed, that no person in the classified civil service shall be removed therefrom, except for such cause as will promote the efficiency of the service and for reasons given in writing, and that the accused person is entitled to notice of his intended removal and of any charges preferred against him, and to a copy thereof, and also to reasonable time personally to answer the same in writing. The defendant having designated, with the assent of the Department of Justice, another person to succeed the relator, informed him on February 9 that the appointment of his successor would become effective on February 15. The relator at all times expressed a willingness to instruct his intended successor as to the duties devolving upon the chief office deputy, but disclaimed that such willingness should be construed as an acquiescence on his part to his ousting and to the appointment of his successor. He made known to defendant his readiness and willingness to perform the duties devolving on him in his position, that he would insist that he was entitled to continue therein until removed in accordance with the above-mentioned act, and that he would continue to claim compensation until his removal was thus made. On February 14 he was notified by the defendant in writing of the revocation of his appointment, the same to become effective on ...