The President has power to remove a district attorney of the
United States when such removal occurs within four years from the
date of the attorney's appointment and, with the advice and consent
of the Senate, to appoint a successor to him.
Section 769 of the Revised Statutes, which enacts that
"district attorneys shall be appointed for a term of four years,
and their commissions shall cease and expire at the expiration of
four years from their respective dates,"
provides that the term shall not last longer than four years,
subject to the right of the President to sooner remove.
It was the purpose of Congress in the repeal of the tenure of
office sections of the Revised Statutes to again concede to the
President the power of removal, if taken from him by the original
Tenure of Office Act, and, by reason of the repeal, to thereby
enable him to remove an officer when in his discretion he regards
it for the public good, although the term of office may have been
limited by the words of the statute creating the office.
The legislative, executive and judicial history of the question
reviewed.
The appellant, on the 4th day of December, 1894, filed in the
Court of Claims an amended petition in which he alleged that, on
the 4th of February, 1890, after his nomination and confirmation,
he was duly appointed, qualified, and commissioned for the term of
four years as attorney for the United States for the Northern
District of Alabama, and also to act as such for the Middle
district of Alabama; that thereupon he entered upon the discharge
of the duties of his office; that he never resigned the same, and
that he then resided, and has continued to reside, since the date
of his commission, in the City of Birmingham, Alabama, and within
the Northern District of Alabama, and that he had given his
personal attention to the duties of his office, and that no cause
of removal bad existed since his appointment.
Although the appellant was, as he alleged, duly commissioned as
such district attorney, the contents of the commission do not
appear in the petition nor in the record, but it has
Page 167 U. S. 325
been assumed that it contained the usual language, which, after
authorizing and empowering the officer to execute and fulfill the
duties of the office, proceeds as follows:
"To have and to hold the said office, with all the powers,
privileges, and emoluments to the same of right appertaining unto
him, the said Lewis E. Parsons, Jr., for the term of four years
from the date hereof, subject to the conditions prescribed by
law."
It was further alleged in the petition that, on the 29th day of
May, 1893, the appellant received a written communication from the
President of the United States, as follows:
"Executive Mansion"
"
Washington, D.C., May 26, 1893"
"Sir: You are hereby removed from the office of Attorney of the
United States for the Northern and Middle districts of Alabama, to
take effect upon the appointment and qualification of your
successor."
"Grover Cleveland"
"To Lewis E. Parsons, Jr."
"
Birmingham, Ala."
No charges had been preferred against the appellant.
Under date of Birmingham, Alabama, June 5, 1893, he sent a
written communication to the President of the United States at
Washington, D.C., in which he said:
"My commission bears date February 4, 1890, and authorizes me to
hold said office for the definite term of four years from the date
thereof, fixed by law, and I am advised by counsel, and it is my
own opinion, that you have no power to remove me, and I
respectfully decline to surrender the office."
"Very respectfully,"
"Lewis E. Parsons, Jr."
"
United States Attorney for the Northern District of
Alabama"
This answer was duly mailed to the President of the United
States, and on the same day,
viz., the 5th day of June,
1893,
Page 167 U. S. 326
the appellant notified both the Attorney General of the United
States and Emmet O'Neal that he declined to surrender the office of
Attorney of the United States for the Northern District of Alabama
to said O'Neal, who was named by the President as appellant's
successor, his (O'Neal's) appointment bearing date May 26,
1893.
Upon the 20th day of June, 1893, O'Neal moved the Circuit Court
for the Southern Division of the Northern District of Alabama to
require appellant to turn over to him all the books and papers and
other property appertaining to the office, which motion was
resisted by appellant, but was granted by the court, although it
did not adjudicate or determine the question of the title to the
office or the power of the President to remove the appellant.
In re O'Neal, 57 F. 293.
The appellant applied to this Court for leave to file a petition
for a writ of mandamus to compel the judge to vacate his order
granting the motion of Mr. O'Neal, which application was denied,
but the merits of the case were not passed upon.
In re
Parsons, 150 U. S. 150.
The appellant further alleged in his petition that from the
first of January, 1893, to May 26th of that year, he had earned
certain fees, which had been duly accounted for and approved by the
district judge, and that, since the 26th of May and prior to the
31st day of December, 1893, certain other fees had been earned for
services rendered by Mr. O'Neal, who had been performing the duties
of United States attorney since the 26th of May, 1893, and that, on
the whole, there was a balance due appellant for salary and fees
during the year 1893, appertaining to his office as district
attorney, which amount had been demanded by appellant, and payment
had been refused. Judgment for the amount was demanded.
The usual answer was put in by the United States. It further
appears that on the 26th of May, 1893, the Senate of the United
States was not in session, but that in August, 1893, that body was
in session, and that the nomination of Mr. O'Neal was sent to it,
and his appointment was by it consented to and confirmed, and that
he was commissioned as United States district attorney for four
years from that time. These facts have
Page 167 U. S. 327
not been stated in the formal finding of facts by the court
below, but they have been referred to by both the counsel in their
briefs in the case as part of the admitted facts, and the fact of
the confirmation of Mr. O'Neal on the 26th day of August, 1893, by
the Senate, is stated by Judge Weldon in the course of his opinion
in this case. 30 Ct.Cl. 222. The court below determined as a
conclusion of law that the appellant was not entitled to recover,
and his petition was therefore dismissed. From that judgment he has
appealed to this Court.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The question here presented is whether the President of the
United States has power to remove a district attorney who had been
duly appointed when such removal occurs within the period of four
years from the date of his appointment, and to appoint a successor
to that officer by and with the advice and consent of the Senate.
The appellant in this case claims that the President has no such
power, and that, by virtue of the appointment of appellant to the
office of district attorney in February, 1890, he was entitled to
hold that office for four years from that date, and to receive the
emoluments appertaining thereto during the same period. He bases
his claim upon sections 767 and 769 of the Revised Statutes.
Section 767 provides for the appointment in each district of the
United States, with the exceptions therein stated, of "a person
learned in the law to act as attorney for the United States in such
district."
Section 769 reads as follows:
"District attorneys shall be appointed for a term of four
Page 167 U. S. 328
years and their commissions shall cease and expire at the
expiration of four years from their respective dates. And every
district attorney, before entering upon his office, shall be sworn
to the faithful execution thereof."
The appellant claims that this section gives to every district
attorney the legal right to hold his office for four years, and
that, during that time, the President has no power to remove him
directly, and the President and Senate have no power to remove him
indirectly, by the appointment of a successor, and that therefore
he has never been legally removed, and he bases his claim to
recover herein upon that fact.
The first question which arises is in regard to the proper
construction of the above-quoted section. Does it provide for the
continuance in office for four years at all events, and for a
termination at the expiration of that period, or does it mean to
provide that the term shall not last longer than four years,
subject to the right of the President to sooner remove? If it were
to be construed in accordance with the claim of appellant, the
further question would then arise whether a statute which fixed a
term of office for a district attorney, during the running of which
neither the President, nor the President and Senate, by the
appointment of a successor, should have power to remove the
incumbent from office would be constitutional.
It will greatly aid us in giving the proper construction to this
section if we look for a moment at the constitutional history of
the subject relating to the President's power of removal, and at
the debates which have taken place in Congress in regard to it. The
question arose in the first session of the first Congress which met
after the adoption of the Constitution.
On the 19th of May, 1789, in the House of Representatives, Mr.
Madison moved
"that it is the opinion of this committee that there shall be
established an executive department, to be denominated the
'Department of Foreign Affairs,' at the head of which there shall
be an officer, to be called the 'Secretary of the Department of
Foreign Affairs,' who shall be appointed by the President by and
with the advice and consent of the Senate, and to be removable by
the President."
Subsequently
Page 167 U. S. 329
a bill was introduced embodying those provisions. Mr. Smith, of
South Carolina, said that
"he had doubts whether the officer could be removed by the
President; he apprehended that he could only be removed by an
impeachment before the Senate, and that, being once in office, he
must remain there until convicted upon impeachment, and he wished
gentlemen would consider this point well before deciding it."
1 Lloyd's Cong.Reg. pp. 350-351. Then ensued what has been many
times described as one of the ablest constitutional debates which
has taken place in Congress since the adoption of the Constitution.
It lasted for many days, and all arguments that could be thought of
by men, many of whom had been instrumental in the preparation and
adoption of the Constitution, were brought forward in debate in
favor of or against that construction of the instrument which
reposed in the President alone the power to remove from office.
After a most exhaustive debate, the House refused to adopt the
motion which had been made to strike out the words "to be removed
from office by the President," but subsequently the bill was
amended by inserting a provision that there should be a clerk to be
appointed by the secretary, etc., and that said clerk, "whenever
said principal officer shall be removed from office by the
President of the United States, or in any other case of a vacancy,"
shall be the custodian of the records, etc., and thereupon the
first clause, "that the secretary should be removable from office
by the President," was stricken out; but it was on the well
understood ground that the amendment sufficiently embodied the
construction of the Constitution given to it by Mr. Madison and
those who agreed with him, and that it was at the same time free
from the objection to the clause so stricken out that it was itself
susceptible to the objection of undertaking to confer upon the
President a power which before he had not. The bill so amended was
sent to the Senate, and was finally passed after a long and able
debate by that body without any amendments on this particular
subject. The Senate was, however, equally divided upon it, and the
question was decided in favor of the bill by
Page 167 U. S. 330
the casting vote of Mr. Adams, as vice-President. Mr. Charles
Francis Adams, in the Life of John Adams (vol. 2, p. 143), in
speaking of this action of the vice-President, says:
"It was the only time, during his eight years of service in that
place, that he felt the case to be of such importance as to justify
his assigning reasons for his vote. These reasons were not
committed to paper, however, and can therefore never be known. But
in their soundness it is certain that he never had the shadow of a
doubt. His decision settled the question of constitutional power in
favor of the President, and consequently established the practice
under the government which has continued down to this day."
"Although there have been occasional exceptions taken to it in
argument, especially in moments when the executive power, wielded
by a strong hand, seemed to encroach upon the limits of the
coordinate departments, its substantial correctness has been, on
the whole, quite generally acquiesced in. And all have agreed that
no single act of the first Congress has been attended with more
important effect upon the working of every part of the
government."
Many distinguished lawyers originally had very different
opinions in regard to this power from the one arrived at by this
Congress, but when the question was alluded to in after years, they
recognized that the decision of Congress in 1789, and the universal
practice of the government under it, had settled the question
beyond any power of alteration. To this effect,
see Kent's
Com. vol. 1, Lec. 14, p. 310, subject, U.S. Marshals; 2 Story on
the Const., vol. 2, §§ 1542-1544.
In the subsequent debates in Congress over the removal of the
deposits of the government, by direction of the President, from the
Bank of the United States and the dismissal by the President of the
Secretary of the Treasury, Mr. Duane, as a means to accomplish that
purpose, the subject of the power of the President to remove from
office was alluded to by Mr. Webster, and he admitted the
proposition that the President had the power of removal. Although,
as an original question, he would have had a different opinion, yet
in view of the action of Congress and the practice of the
government, he said:
Page 167 U. S. 331
"I regard it as a settled point, settled by construction,
settled by precedent, settled by the practice of the government,
settled by legislation." And he did not ask to disturb it. In
speaking on that subject and referring to Mr. Webster's admission,
Mr. Evarts, upon the trial of President Johnson, said:
"He knew the force of those forty-five years, the whole
existence of the nation under its Constitution, upon a question of
that kind, and he sought only to interpose a moral restraint upon
the President in requiring him, when he removed from office, to
assign the reasons of the removal."
(Johnson's Impeachment Trial, Vol. 2, p. 314, remarks of Mr.
Wililam M. Evarts, of counsel for the President.)
In
Ex Parte
Hennen, 13 Pet. 230,
38 U. S. 259,
which was a case involving the validity of an appointment of a
clerk of the District Court of Louisiana by the district judge
thereof, it was said by Mr. Justice Thompson, in speaking of the
power of removal:
"In the absence of all constitutional provision or statutory
regulation, it would seem to be a sound and necessary rule to
consider the power of removal as incident to the power of
appointment. This power of removal from office was a subject much
disputed, and upon which a great diversity of opinion was
entertained in the early history of this government. This related,
however, to the power of the President to remove officers appointed
with the concurrence of the Senate, and the great question was
whether the removal was to be by the President alone or with the
concurrence of the Senate, both constituting the appointing power.
No one denied the power of the President and Senate jointly to
remove where the tenure of the office was not fixed by the
Constitution, which was a full recognition of the principle that
the power of removal was incident to the power of appointment. But
it was very early adopted as the practical construction of the
Constitution that this power was vested in the President alone. And
such would appear to have been the legislative construction of the
Constitution."
And in speaking of the different language employed in the act
establishing the Navy Department from that which was
Page 167 U. S. 332
used in regard to the Department of State, the learned Justice
further remarked:
"The change of phraseology arose probably from its having become
the settled and well understood construction of the Constitution
that the power of removal was vested in the President alone in such
cases, although the appointment of the officer was by the President
and Senate."
The opinions of the law officers of the government have been in
harmony with the foregoing views.
In 1847, Attorney General Clifford, subsequently and for many
years one of the Justices of this Court, in the course of an
opinion given in regard to the claim of Surgeon Du Barry for back
pay, in speaking of this power of the President and the
acquiescence in the result arrived at by the Congress of 1789,
said:
"No one ever thought of maintaining that the inferior offices,
so called in the Constitution, should be held during life. The
doubt which arose was whether the concurrence of the Senate was not
requisite to effect a removal in all cases where it is required to
consummate the appointment. The power was finally affirmed to be in
the President alone by a majority of both houses of Congress, after
great deliberation and, perhaps one of the ablest discussions in
the history of the country. 4 Elliot Debates 350, 404. That
decision was acquiesced in at the time, and has since received the
sanction of every department of the government. It is worthy of
special remark that several commentators on the Constitution who do
not entirely admit the correctness of the construction adopted are
nevertheless constrained to regard the question as closed. Mr.
Justice Story, after reciting the arguments on both sides,
remarks:"
"If there has been any aberration from the true constitutional
exposition of the power of removal (which the reader must decide
for himself), it will be difficult, perhaps impracticable, after
forty years' experience, to recall the practice to the correct
theory."
"2 Story § 1538. The remarks of Chancellor Kent are still
more decisive on this point. He says:"
"It may now be considered as firmly and definitely settled, and
there is good sense and practical utility
Page 167 U. S. 333
in the construction."
"1 Kent, 311."
4 Opinions Attys.Genl. 603, 609.
In 1851, Attorney General Crittenden, in a written opinion
delivered to the President of the United States, stated that the
President was not only invested with authority to remove the Chief
Justice of the Territory of Minnesota from office, but that it was
his duty to do so if it appeared that he was incompetent and unfit
for the place. Speaking of these territorial judges, Mr. Crittenden
said:
"Being civil officers, appointed by the President by and with
the advice and consent of the Senate and commissioned by the
President, they are not exempted from that executive power which by
the Constitution is vested in the President of the United States
over all civil officers appointed by him and whose tenures of
office are not made by the Constitution itself more stable than
during the pleasure of the President of the United States."
Concluding, he said:
"To answer your inquiry specifically, I have only, in
conclusion, to add that in my opinion you, as President of the
United States, have the power to remove from office the Chief
Justice of the Territory of Minnesota, for any cause that may in
your judgment require it."
5 Opinions Attys.Genl. 288, 291.
In that case, the statute under which the Territory of Minnesota
was organized, Act of March 3, 1849, c. 121, § 9, 9 Stat. 403,
406, provided for the appointment of judges of the supreme court,
and that they should "hold their offices during the period of four
years." In regard to that provision, Mr. Crittenden said in the
opinion above referred to:
"That these territorial judges were appointed under a law which
limited their commissions to the term of four years does by no
means imply that they shall continue in office during that term
howsoever they may misbehave. An express declaration in the statute
that they should not during the term be removed from office would
have been in conflict with the Constitution, and would have
precluded either the House of Representatives or the President from
the exercise
Page 167 U. S. 334
of their respective powers of impeachment or removal. The law
intended no more than that these officers should certainly, at the
end of that term, be either out of office or subjected again to the
scrutiny of the Senate upon a renomination."
Attorney General Evarts, in speaking of the Tenure of Civil
Office Act, said that it was passed
"to change the doctrine and practice of the government by which
removal from office at the mere discretion of the President had
been established as a proper, and, as had been thought, a necessary
attendant of the executive duty and responsibility, under the
Constitution to maintain the efficiency and fidelity of the public
service in fulfilling the manifold and incessant obligations of
administration and in execution of the laws."
12 Opinions Attys.Genl. 439, 446.
This power has been recognized as extending to officers of the
army and navy. Attorney General Cushing, in the case of
Lansing, 6 Opinions Attys.Genl. 4, said:
"I am not aware of any ground of distinction in this respect, so
far as regards the strict question of law, between officers of the
army and any other officers of the government. As a general rule,
with the exception of judicial offices, they all hold their offices
by the same tenure in this respect."
See also Colonel Belger, 12 Opinions Attys.Genl. 421,
425, and also the opinion of Attorney General Devens as to the
power of the President to dismiss an officer from the military
service, 15 Opinions Attys.Genl. 421.
The foregoing references to debates and opinions have not been
made for the purpose of assisting us in ourselves arriving at a
decision of the question of the constitutional power of the
President in his discretion to remove officials during the term for
which they were appointed, and notwithstanding the existence of a
statute prohibiting such removal, but simply for the purpose of
seeing what the views of the various departments of the government
have been upon the subject of the power of the President to remove,
and what claims were made and how much of acquiescence had been
given to the proposition that to the President belonged the
exclusive power of removal in all cases other than by way of
impeachment.
Page 167 U. S. 335
It is unnecessary for us in this case to determine the important
question of constitutional power above stated.
The short review we have taken throws light upon the question of
the true construction of the language used by Congress in the
section of the Revised Statutes under examination. Other
legislation will be adverted to.
Before doing so, however, we think it well to comment upon one
or two cases which have been said to indicate a different view on
the part of this Court as to the power of the President. It is said
that, in the case of
Marbury v.
Madison, 1 Cranch 137, it was held that a justice
of the peace in the District of Columbia was not removable at the
will of the President, as his office was one created by Congress,
and the term was limited in the act. The case was an original
application to this Court for a mandamus against the Secretary of
State to compel him to deliver a commission to the petitioner,
which had, as was alleged, been signed by the President and sealed
by the Secretary, commissioning the petitioner as one of the
justices of the peace for the District of Columbia under an act of
Congress. The court unanimously held that it had no jurisdiction to
grant an original writ in such case. Chief Justice Marshall, in the
course of his opinion, stated that
"Mr. Marbury, then, since his commission was signed by the
President and sealed by the Secretary of State, was appointed, and
as the law creating the office gave the officer the right to hold
for five years, independent of the executive, the appointment was
not revocable, but vested in the officer legal rights, which are
protected by the laws of his country."
Whatever has been said by that great magistrate in regard to the
meaning and proper construction of the Constitution is entitled to
be received with the most profound respect. In that case, however,
the material point decided was that the Court had no jurisdiction
over the case as presented. The remarks of the Chief Justice in
relation to the right of an appointee to retain possession of an
office created by Congress in and for the District of Columbia, as
against the power of the President to remove him during the term
for which he was appointed, are not necessarily applicable to the
case of an
Page 167 U. S. 336
officer appointed to an office outside of such district. In the
District of Columbia, Congress is given by the Constitution power
to exercise exclusive legislation in all cases. Art. I, § 8,
subdiv. 17, Const.U.S. The view that the President had no power of
removal in other cases outside of the District, as has been seen,
is one that had never been taken by the executive department of the
government, nor even by Congress, prior to 1867, when the first
Tenure of Office Act was passed. Up to that time, the constant
practice of the government was the other way, and in entire accord
with the construction of the Constitution arrived at by Congress in
1789.
The case of
United States v.
Guthrie, 17 How. 284, has also been cited upon the
same point. The question in that case was in regard to the right of
the relator, Goodrich, to a writ of mandamus to compel the
Secretary of the Treasury to draw his warrant to pay the amount of
salary due to the relator, as he alleged, during the term nominated
in his commission appointing him Chief Justice of the Supreme Court
of the Territory of Minnesota. The President had removed him within
the period of four years, the term named in the statute and in his
commission. It was in relation to the power to remove this
official, appointed under the statute organizing the Territory of
Minnesota, that Attorney General Crittenden gave his opinion, which
is above referred to. This Court held that the circuit court had no
power to issue a writ of mandamus commanding the Secretary of the
Treasury to pay a judge of the Territory of Minnesota his salary
for the unexpired term of his office, from which he had been
removed by the President of the United States. The question whether
or not the President had power to remove a territorial judge during
his statutory term of office was argued, but was not decided in the
case. The prevailing opinion was very brief, and was delivered by
Mr. Justice Daniel, and it simply discussed and denied the power of
the court to issue the writ. Mr. Justice McLean delivered his own
opinion in regard to the power of the President to remove, in which
he said that he differed from the opinion of the Court in answering
the question as it did, and he was of the opinion that the
question
Page 167 U. S. 337
as to the power of the President to remove was before the Court,
and that such power of removal was not committed solely to the
President. The case is not claimed to be authority for the doctrine
asserted by Mr. Justice McLean, and it can only be cited for the
purpose of showing that there was an exception to the general
acquiescence in the power of the President to remove. The case also
arose in regard to the dismissal of a judicial officer of a
territory.
The case of
McAllister v. United States, 141 U.
S. 174, has also been cited. There is nothing in that
case which gives any countenance to the doctrine contended for by
the appellant. The Court there held that a judge of the District
Court of Alaska was not a judge of a court of the United States
within the meaning of the exception contained in section 1768,
Rev.Stat., relating to the tenure of office of civil officers, and
it was held that the judge of the District Court of Alaska, prior
to the repeal of that section, was subject to removal, before the
expiration of his term of office, by the President in the manner
and upon the conditions set forth in that section. MR. JUSTICE
HARLAN, in delivering the opinion of the Court in that case and
replying to the suggestion that the conclusion reached by the Court
was not in harmony with some observations of Mr. Chief Justice
Marshall in
Marbury v. Madison, stated on page
141 U. S. 188
that there was nothing in those observations which militated in any
degree against the views expressed by him in the case then under
consideration, and he said (p.
141 U. S.
189):
"The decision in the present case is a recognition of the
complete authority of Congress over territorial offices, in virtue
of 'those general powers which that body possesses over the
territories of the United States,' as
Marbury v. Madison
was a recognition of the power of Congress over the term of office
of a justice of the peace for the District of Columbia."
The case contains nothing in opposition to the contention as to
the practical construction that had been given to the Constitution
by Congress in 1789 and by the government generally since that time
and up to the act of 1867.
We may now look at the course of legislation in regard to
Page 167 U. S. 338
the appointment of district attorneys from the earliest period
in our constitutional history down to the repeal in 1887 of those
sections of the Revised Statutes which contained in substance the
provisions of the Tenure of Office Acts.
By section 35, c. 20, Laws 1789, entitled "An act to establish
the judicial courts of the United States," it was provided, among
other things, as follows:
"And there shall be appointed in each district a meet person
learned in the law to act as attorney for the United States in such
district, who shall be sworn or affirmed to the faithful execution
of his office, whose duty it shall be to prosecute in such district
all delinquents,"
etc. 1 Stat. 73, 92. No provision was made in the act for the
removal of such officer. In the view held by that Congress as to
the power of the President to remove, it was unnecessary. The
legislation remained in this condition until the 15th of May, 1820,
when the act (chapter 102 of the Laws of that year) was passed
entitled "An act to limit the term of office of certain officers
therein named, and for other purposes." 3 Stat. 582.
The first section of that act provided that from and after its
passage,
"all district attorneys, collectors of the customs, naval
officers, and surveyors of the customs, navy agents, receivers of
public moneys for lands, registers of the land office, paymasters
in the army, the apothecary general, the assistant apothecaries
general and the commissary general of purchases, to be appointed
under the laws of the United States, shall be appointed for the
term of four years, but shall be removable from office at
pleasure."
This was an act designed, as indicated by its title and by the
language used in the body of the act, to bring the terms of those
officers named therein to an end after the expiration of four
years. Its purpose clearly was not to grant an unconditional term
of office for that period. It was an act of limitation, and not of
grant.
The provision in the second section that the commissions should
cease and expire at the end of four years shows clearly that the
intention of Congress was to restrict what had been a possible life
term of office to a period of not more than
Page 167 U. S. 339
four years under any one appointment. The provision for a
removal from office at pleasure was not necessary for the exercise
of that power by the President because of the fact that he was then
regarded as being clothed with such power in any event. Considering
the construction of the Constitution in this regard as given by the
Congress of 1789, and having in mind the constant and uniform
practice of the government in harmony with such construction, we
must construe this act as providing absolutely for the expiration
of the term of office at the end of four years, and not as giving a
term that shall last at all events for that time, and we think the
provision that the officials were removable from office at pleasure
was but a recognition of the construction thus almost universally
adhered to and acquiesced in as to the power of the President to
remove.
The legislation in regard to these various officers remained as
provided for in this act of 1820 until the passage of the first
Tenure of Office Act, March 2, 1867, c. 154, 14 Stat. 430. By that
act it was provided that every person holding any civil office to
which he had been appointed by and with the advice and consent of
the Senate, and all who should be thereafter appointed to any such
office
"and shall become duly qualified to act therein, is and shall be
entitled to hold such office until a successor shall have been in
like manner appointed and duly qualified, except,"
etc. The reason for the passage of this well known act is a
matter of history. It was the result of a contest which sprang up
between President Johnson and the two houses of Congress within a
very short time after he became President, and which grew in force
and bitterness as the views of Congress, on the one side, and the
President, on the other, became more opposed to each other in the
matters regarding the states lately in rebellion and the proper
measures to be pursued for their government. The act was a portion
of the legislation passed by Congress at that time for the purpose
of keeping those men in office who were then supposed to be
friendly to the views of Congress upon that great subject. On the
same day, March 2, 1867, Congress passed the army appropriation
act, 14 Stat. 486,
Page 167 U. S. 340
c. 170, by which the headquarters of the General of the Army
were established at Washington, and all orders and instructions
relating to military operations issued by the President to the
Secretary of War were directed to be issued through the General of
the Army. Other provisions were also therein contained for the
purpose of restraining the action of the President in the exercise
of his power to remove or suspend the General of the Army.
Reference to the subject is made in
Blake v. United
States, 103 U. S. 227,
103 U. S.
236.
The President, as is well known, vetoed the Tenure of Office
Act, because he said it was unconstitutional in that it assumed to
take away the power of removal constitutionally vested in the
President of the United States -- a power which had been uniformly
exercised by the executive department of the government from its
foundation. Upon the return of the bill to Congress, it was passed
over the President's veto by both houses, and became a law. The
continued and uninterrupted practice of the government from 1789
was thus broken in upon and changed by the passage of this act, so
that, if constitutional, thereafter all executive officers whose
appointments had been made with the advice and consent of the
Senate could not be removed by the President without the
concurrence of the Senate in such order of removal.
Mr. Blaine, who was in Congress at the time, in afterwards
speaking of this bill, said:
"It was an extreme proposition -- a new departure from the long
established usage of the federal government -- and for that reason,
if for no other, personally degrading to the incumbent of the
Presidential chair. It could only have grown out of abnormal
excitement created by dissensions between the two great departments
of the government. . . . The measure was resorted to as one of
self-defense against the alleged aggressions and unrestrained power
of the executive department."
Twenty Years in Congress, vol. 2, 273, 274.
The conduct of President Johnson in regard to the provisions of
this act, and his contest with Secretary Stanton in relation to the
office of Secretary of War, led to his impeachment by the house and
his trial before the Senate, resulting in his acquittal.
Page 167 U. S. 341
In November, 1868, a new President was elected, who came into
office on the 4th of March, 1869. His relations with Congress were
friendly, and the motive for the passage of the act of 1867 had
ceased to operate. Within five days after the meeting of Congress,
a bill was introduced in the House to repeal the act of 1867, and
was passed by that body. In the Senate, however, the repeal failed,
but the act was modified by the act passed on the 5th of April,
1869, 16 Stat. 6, and the first section of the original act was
modified so as to provide as follows:
"That every person holding any civil office to which he has been
or hereafter may be appointed by and with the advice and consent of
the Senate, and who shall have become duly qualified to act
therein, shall be entitled to hold such office during the term for
which he shall have been appointed, unless sooner removed by and
with the advice and consent of the Senate, or by the appointment,
with the like advice and consent, of a successor in his place,
except as herein otherwise provided."
Assuming the constitutionality of these acts, it is seen that,
under the act of 1869, a person who had been appointed to an office
by and with the advice and consent of the Senate could yet be
removed by and with such advice and consent, or by the appointment,
with the like advice and consent, of a successor in his place,
except as provided in the second section of the act, which provided
for appointments during the recess of the Senate, and for the
designation of persons to fill vacancies which might happen during
that time. No further legislation upon the subject of removals or
appointments was enacted for some years, although repeated but
unsuccessful attempts were made to repeal the act of 1869 and to
leave the President untrammeled by any statute upon the subject.
With the legislation of 1869 in force, this appellant would, under
the facts of this case, have been legally removed by the
appointment of his successor in the way it occurred.
A revision of the statutes having been undertaken since 1869,
section 769 was placed therein as the substance of the statute of
1820. The section is quoted above. It does not
Page 167 U. S. 342
contain the affirmative recognition of the power of removal
which is contained in the act of 1820. The reason for the omission
plainly was because the insertion of language in the section which
in so many words recognized a right of removal would have
conflicted with the succeeding sections, embodying the terms of the
Tenure of Office Act, which prohibited removals. Section 769 was so
drawn that in effect it permitted removals within the term, and it
was left to the succeeding sections to make provisions that should
limit the right of removal otherwise existing by virtue of the
language of that section. The same construction of the language of
that section should be adopted which we would apply to the act of
1820, and which was applied by Attorney General Crittenden and
acted upon by the President in the case of the chief justiceship of
the Territory of Minnesota, 5 Opinions of Attorneys General 288, a
construction of limitation, and not of grant -- a construction by
which no more than a period of four years is permissible, subject,
in the meantime, to the power of the President to remove. In thus
construing section 769, we think full effect is given to its
language, and the practical construction of former periods is
adhered to, while at the same time the purpose of Congress to
retain officials in office is also given full effect to by the
succeeding provisions upon the subject of the tenure of office. The
right to remain in office is made to depend upon those subsequent
sections, and when in 1887 they were repealed by Congress, 24 Stat.
500, the full legal force and effect of the language used in
section 769 is permitted to come in play, freed from the restraints
of the sections thus repealed. Such being the case, the persons
appointed under section 769 are not entitled to hold for four years
as against any power of the President to remove, and in no event
can they remain in office longer than that period without being
reappointed. This construction of the act as one of limitation, we
think, in the light of the history of the subject, is a most
natural and proper one.
The argument of the appellant, however, shows, if adopted, that
the result of the passage of the repealing statute of 1887 has been
to limit the power of the President more than it was limited before
that statute was passed. While the tenure of
Page 167 U. S. 343
office provisions existed, it is conceded that the President
might remove an officer like a district attorney within the four
years for which he was commissioned, provided his removal was
concurred in by the Senate or was effected by the appointment of
his successor by and with the advice and consent of the Senate; yet
now, since the repeal of those sections which it was supposed
limited and restrained the power of the President, he is still
further restrained and limited in his power because, under the
construction as claimed by the appellant, he cannot now remove an
officer within the four years, even with the advice and consent of
the Senate or by the appointment of his successor by the like
advice and consent. This extraordinary result is reached by
construing, according to appellant's views, section 769 as meaning
to give a term of office of four years in any event, and while this
term of office was, before the repeal of the sections above named,
subject to be shortened in accordance with their provisions, yet,
as they have been repealed, it leaves section 769 in force, as
granting an unconditional and absolute term of four years, which
cannot be shortened by the President, or the President and Senate
combined, and which leaves the incumbent subject only to removal by
the slow and weary process of impeachment by the house and a
conviction thereon and a removal by the Senate as a punishment.
This could never have been the intention of Congress. On the
contrary, we are satisfied that its intention, in the repeal of the
tenure of office sections of the Revised Statutes, was again to
concede to the President the power of removal, if taken from him by
the original Tenure of Office Act, and by reason of the repeal to
thereby enable him to remove an officer when, in his discretion, he
regards it for the public good, although the term of office may
have been limited by the words of the statute creating the office.
This purpose is accomplished by the construction we give to section
769, while the other construction turns a statute meant to enlarge
the power of the President into one circumscribing and limiting it
more than it was under the law which was repealed for the very
purpose of enlarging it.
Page 167 U. S. 344
After a careful review of the case before us, we are of the
opinion that the Court of Claims committed no error, and its
judgment is
Affirmed.