BRIEF FOR THE APPELLANT, FILED BY GEORGE WHARTON PEPPER, AMICUS CURIE

In the Supreme Court of the United States. October term, 1924. No. 77. Frank S. Myers, appellant, v. The United States. Appeal from the Court of Claims.

I

On the second day of February, 1925, the court entered the following order:

It is ordered that this case be reassigned for argument on Monday, March sixteenth, next, in order that George Wharton Pepper, Esquire, at the invitation of the court, may address an argument to it as amicus curiæ on behalf of the appellant.

By subsequent order the reargument was set for April 13, 1925. This brief is filed in partial discharge of the duty arising from acceptance of the court's invitation.

II. STATEMENT OF THE CASE

This is an appeal from the Court of Claims. The immediate question is whether the appellant is entitled to a balance of salary alleged to be due by the United States to him as a postmaster of the first class. The Court of Claims decided against him, basing its decision on the ground of laches. Reasons will presently be given to support the contention that the decision on this point was erroneous. Pending this appeal the appellant died. Letters of administration upon his estate were duly granted to his administratrix, and the death has been suggested of record.

If the only question involved were this matter of laches extended argument would not be necessary. The real question, however, is a far more important one. It is such as to require an exploration of that debatable ground which under the Constitution of the United States lies between the lines of executive and legislative power. The President nominates, and, by and with the advice and consent of the Senate, appoints a certain Federal officer. The act of Congress creating the office provides that the Senate shall have something to say in case removal from office is attempted. May the President, with the consent of the Senate, appoint to the office which the statute creates and may he later ignore that part of the creating statute which declares that the responsibility of removal shall be the joint responsibility of President and Senate? May he ignore the statutory provision and assume the sole responsibility? That is the question presented by this record. Reflection determines it to be a fundamental question; history proves it to be a debatable question; a survey of existing legislation indicates that it is an extremely practical question.

In the instant case the postmaster was appointed under the act of July 12, 1876 (19 Stat. 78, 80). Section 6 provides that: Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.

* * *

The Solicitor General all but concedes that this language evidences the intent of Congress that the Senate's consent shall be essential to removal as well as to appointment.

During the running of the term for which he had been appointed, to wit, on January 22, 1920, the First Assistant Postmaster General requested the officer's resignation. He declined to resign. On February 2 the Postmaster General notified him by telegram that by the direction of President Wilson an order had been issued removing him from the office. On the same day he wired a reply to the Postmaster General that he had not resigned, and would not do so, and that the attempted removal was illegal. He was forcibly ejected on February 3, 1920, but continued his protest against the removal until the expiration of the four-year term specified in his commission, offering at all times to function as postmaster if permitted to do so. During this period he had no other occupation and drew no salary or compensation from any other source. At the time of the attempted removal the Senate was in session, and continued in session until June 5, 1920. The President did not communicate the fact of removal to the Senate, or request that body to consent thereto. Congress was again in session from December 6, 1920 to March 4, 1921, but the President made no communication of the fact of removal, nor did he nominate a successor during this period. The same is true with respect to the special session from March 4, to March 15, 1921, and the extra session from April 11 to August 24, 1921. On July 21, 1921, the term for which the postmaster had been appointed expired.

III. THE CONSTITUTIONAL QUESTION

Was the action of the Executive in ejecting the postmaster from office a high-handed and unauthorized executive act? Or was it a constitutional removal? If the former, then, unless I am wrong on the question of laches, the appellant is entitled to the salary claimed. If the ejection was a constitutional removal the appeal from the Court of Claims will have to be dismissed.

Before discussing the constitutional question thus raised the point must be made that the act of 1876 is not an isolated or eccentric bit of legislation. There are many acts of Congress on the statute books which involve a similar assumption by Congress of the power to prescribe the terms of removal from office of officials appointed by the President.

In the following cases statutes now in force impose definite restrictions upon the exercise by the President of the power of removal: Under 36 Stat. 1135 and 40 Stat. 1157 the judges of the Court of Claims are entitled to hold during "good behavior."

Under section 388 R. S. (the same statute that is involved in the instant case), the Postmaster General is given a term one month longer than the term of the President who makes the appointment, and is removable by the President and the Senate.

Under 42 Stat. 972, sec. 518; 36 Stat. 98, sec. 12; 35 Stat. 406, sec. 3; 26 Stat. 136, sec. 12, the members of the Board of General Appraisers are removable only after hearing, and only for neglect of duty, malfeasance in office, or inefficiency. They hold office during good behavior.

Under 43 Stat. 336, sec. 900, members of the Board of Tax Appeals are removable only for inefficiency, neglect of duty, or malfeasance in office, but for no other reason.

Under 41 Stat. 470, sec. 304, 305, 306 (b), the members of the Railroad Labor Board are removable for neglect of duty, or malfeasance in office, "but for no other cause.'

Under 39 Stat. 182-183, Am., 41 Stat. 771-774; 1229 R. S., 1230 R. S.; 41 Stat. 811, commissioned officers in the Regular Army are removable by the President in time of peace only after sentence of court-martial.

Under sections 1229, 1428, 1496, 1521, and articles 36 and 53 of section 1624 R. S.; 32 Stat. 1197; 33 Stat. 346; 38 Stat. 103, 289; 39 Stat. 576; 40 Stat. 501; 40 Stat. 716; 41 Stat. 137, 140, 834-835, the commissioned officers of the regular Navy are removable in time of peace only after court-martial.

Under the provisions of the civil service laws restrictions on removals are made applicable to all officers and employees of the Government except those enumerated in five classes of exceptions, and these restrictions on removal are applicable in the case of many officers appointed by the President.

In the following case of an officer appointed by the President, a statute now in force vests the power of removal elsewhere than in the President:

Under 42 Stat. 23, 24, the Comptroller General of the United States is given a term of 15 years, and is removable only for specified causes, and by joint resolution of Congress, and " for no other cause and in no other manner except impeachment."

It will thus be seen that much existing legislation is based upon the assumption that the power to remove from an office which Congress has created may by Congress be declared to be exercisable in any of the following ways:

(a) By the President alone, but only for specified cause.

(b) By the President, but only pursuant to the action of a specified body other than Congress.

(c) By the President, but only with the advice and consent of the Senate.

(d) By the joint action of the two Houses, and entirely without reference to the President.

In this summary no account has been taken of the large number of statutes in which it is provided in affirmative words that the officers shall be removable for specified causes. Among such cases are the following:

Federal Trade Commissioners, Interstate Commerce Commissioners, United States Shipping Board Commissioners, and United States Tariff Commissioners are under applicable statutes severally removable by the President for inefficiency, neglect of duty, or malfeasance in office.

These statutes and some others like them are laid aside from consideration in deference to the decision of this court in Shurtleff v. United States (189 U. S. 311 (1903)). In that case the court was called upon to construe the customs administrative act of June 10. 1890 (26 Stat. 131-136), section 12 relating to general appraisers of merchandise provided that after appointment by the President by and with the advice and consent of the Senate, "they may be removed from office at any time by the President, for inefficiency, neglect of duty, or malfeasance in office." A duly appointed appraiser was removed by the President with no specification of charges, and without notice or opportunity for hearing. He contended that the affirmative language of the statute implied the nega tion of the power to remove except for the causes specified. This court was of opinion that this principle of interpretation was inapplicable. "The right of removal," said the court, "would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away" (p. 316). It is to be observed, however, that in all statutes of the class construed in Shurtleff v. United States if to the statutory affirmatives were added the words "and for no other cause or "not otherwise we should have to include them in the list of statutes in which Congress has undertaken to prevent removal by the President alone.

There are certain other statutes which do not affect the power of removal but are significant because they do impose limitations even upon the President's constitutional right of appointment. If the President under the Constitution has a power of removal, it is an implied power. If congressional limitations upon the exercise of this implied power are unconstitutional, it might be argued with at least equal force that similar limitations upon the express constitutional grant of the right to appoint are likewise unconstitutional. In the following cases acts of Congress now in force place restrictions upon the presidential right of appointment:

Under 31 Stat. 158, Am.; 42 Stat. 119-120, the President may appoint as judge for the District Court for Hawaii only a citizen of the Territory of Hawaii who has resided therein three years next preceding the appointment. Under similar statutes similar limitations are imposed upon the area of selection in the case of marshals, district attorneys, supreme court and circuit judges of the Territory. Under similar statutes there is a limitation of choice in the case of judge of the municipal court of the District of Columbia and in the case of judge of the United States Court for China. In the case of members of the Board of General Appraisers the President may not appoint more than five of the nine from the same political party.

Under 43 Stat. 336, sec. 900, members of the Board of Tax Appeals may be appointed by the President "solely on the grounds of fitness to perform the duties of the office."

Under 42 Stat. 1473, 39 Stat. 360, not more than three members of the Federal Farm Loan Board may be appointed by the President from one political party.

Under statutes applicable to the commissioning of officers in the Army and Navy there are many limitations upon the right of selection.