APPEAL FROM THE UNITED STATES COURT OF CLAIMS WASHINGTON, D. C., The above-entitled cause came on for oral argument before the full court at 3 o'clock p. m. Appearances: Hon. Will R. King, for appellant; Hon. James M. Beck, Solicitor General of the United States, for appellee; Hon. George Wharton Pepper, United States Senator, amicus curiæ. Mr BECK. If the court please, in this case, I need hardly stress the importance of the case; and therefore, without more, I would say that counsel for both sides unite in suggesting to the court an extension of time; and our suggestion would be that two hours be allowed to the appellant and one hour and 45 minutes to the appellee. The CHIEF JUSTICE. Well, as I understand it, at the invitation of the court, Senator Pepper has come in as amicus curiæ. Mr. BECK. Yes, sir. The CHIEF JUSTICE. Therefore, I think the division of time should be between the three. Mr. BECK. Yes, sir. The CHIEF JUSTICE. And after talking with Senator Pepper, I infer that the counsel for the appellant is willing to have 45 minutes assigned to him and an hour and a quarter to Senator Pepper, allowing you an hour and 45 minutes. Mr. BECK. Yes, sir. The CHIEF JUSTICE. So that that will be understood; and the marshal will keep the time accordingly. Have you agreed as to how the time shall be used? Mr. BECK. Judge King will open and then the amicus curia will follow; and then I will make one argument for the Government, and Mr. King will close. And then there will be a closing argument by the appellants, if they have the time left. The CHIEF JUSTICE. Then you will open, Judge King? Mr. KING. Yes. The CHIEF JUSTICE. But there is one question before we go on. Mr. Justice Stone has asked me to inquire whether counsel know of any reason why he should not sit in this case. We should much prefer to have him sit; but he was Attorney General while the case was in the department, although he took no part in the case and it did not come before him in any official capacity. Mr. KING. I fully appreciate that; and speaking for the appellant, we will be very glad to have him sit in this case. Mr. BECK. That is quite agreeable to the Government. The CHIEF JUSTICE. All right. ORAL ARGUMENT OF HON. WILL R. KING, ON BEHALF OF APPELLANT Mr. KING. If the court please, in this case I trust it is not out of order to say that in the 136 years that have passed since the Constitution was adopted but 52 Federal statutes have been held unconstitutional, and for the first time there comes before this court, so far as I am able to determine, a question of the constitutionality of a statute in which the Government, through the Department of Justice, questions the constitutionality of its own act-an act of Congress. As to this unusual feature, I have no criticism to offer; I think it is but proper, if such is the view of the Department of Justice.. We find the Solicitor General in this case (and consistent with his views), representing the executive department of the Government.. And we have (and I think properly; and I want to thank the court for inviting him into this case), Senator Pepper, appearing amicus curiæ; who, as I take it from his brief, represents another branch, the legislative branch, of the Government-not technically so, yet effectively so. I appear as counsel for the appellant, who brought this suit in the first instance. It is gratifying, therefore, to feel that all interests are properly represented. In my opening I shall endeavor to be as brief as I can and statethe facts upon which this suit is brought; that is to say, such of the issues as may enable the Solicitor General fully to meet our contention, if he will. I feel that my colleague, Senator Pepper,. will more fully go into the main features of the law; but it devolves upon me in the opening to state the facts and issues. Frank S. Myers, now deceased, and for whom the administratrix is substituted as a party, was postmaster at Portland, Oreg., for a number of years-four years. The full term expired and he was reappointed in 1917. About two years and a half after he entered upon the duties of his second term, he was summarily, and without cause, removed by the Postmaster General. Afterwards, as stated by the Court of Claims, by some telegram from the Postmaster General, this was concurred in by the President of the United States. Yet his removal, which was treated as a removal in the first instance, was by the Postmaster General. It is doubtful if the President ever heard of it. He After receiving word of his removal, without any charges having been preferred against him, he protested against this removal. continued that protest throughout the entire period. He took every step, as the record will disclose, showing that there was no lack of diligence on his part in the way of objecting to his removal. This suit was finally brought in the Court of Claims for the recovery of his salary. The Court of Claims rendered its findings, to which we take no exception. It is a very fair statement. And this court will find in our brief a statement of facts, given substantially as stated by the Court of Claims. Fortunately, there is no disagreement upon questions of fact; nor was there before the Court of Claims. The Court of Claims, after fully considering the matter, decided with us on the facts. It held against us on one question only, and that was a question of law-the question of "laches." That is to say, the Court of Claims attempted to bring this case within two or three decisions of this court, which we think erroneously applied. I will not take up the time of the court now to discuss those in detail, further than to call attention to the fact that there is a distinction between this case and all the cases cited by the Court of Claims. In fact, the Court of Claims' own statement of its findings of fact would necessitate, if they were the only questions involved, a judgment in favor of the appellant. The statement of facts is set out in the complaint. This statement is to the effect that this plaintiff was removed from office; he protested against the removal; he accepted no other employment; he continued to contest it up until the last moment expired for his successor to be appointed, and the name of his successor was not sent to the Senate. The Senate adjourned without a successor having been appointed; and then six or seven weeks afterwards appellant brought this suit. The effect of the decision by the Court of Claims in this case is to hold that this appellant is guilty of laches, guilty of neglect, for not bringing the suit within the reasonable time required; the court citing cases which we deem inapplicable, as I will show. If the conclusion of the Court of Claims is well founded, it would have been necessary for the appellant to bring a suit immediately after each pay day; he would have had to bring a suit every month. He brought his suit before the time expired in which the President could have sent to the Senate the name of his successor several months before. Then, after the Senate had adjourned and the time. had expired in which the name of his successor could have been sent to the Senate-six or seven weeks-he, at the proper time, filed a supplemental complaint claiming his salary up to the time his term ended. In fact, he brought the suit within seven weeks, and when all is considered, after the expiration of the term. Mr. Justice SANFORD. How long a time did he bring it after his removal; how much time had elapsed since his removal before he brought suit? Mr. KING. It was 15 or 16 months after his removal, but within seven weeks after the time when it could, with reasonable respect to the court, have been brought. During that time every effort was made on his part to convince the Postmaster General that he was unlawfully removed. He was protesting constantly; in fact, was making life miserable" for the Postmaster General because he had been removed without cause and without an opportunity to disclose the injustice of his removal. Then, within six or seven weeks after the final cause of action accrued, he brought this action, 66 66 The Court of Claims, after discussing the question to some extent, indicated it was not their duty-and I did not, nor do I yet fully understand their position to pass on the constitutional question, in view of the fact that by this honorable court, in some case, indicated it was left an open question." Even the minor courts, as a rule, do not hesitate to pass upon the constitutional rights of the humblest citizen. Yet, here is a high court indicating it was not within its jurisdiction to pass upon the constitutional question involved. But it is noticeable, in their opinion, that they nevertheless seemed willing, in a way, to brief the case in favor of an autocratic power of the executive, as has been done before where even courts did not decide the question, holding the question not necessarily there involved. The CHIEF JUSTICE. As a matter of fact, during the time for which he brings this suit, there was no appointment and confirmation by the Senate? Mr. KING. There was no appointment and no confirmation. There was an inspector in charge of the office at Portland, who drew his salary in that official capacity. There was no action by the Senate in any way whatever. The CHIEF JUSTICE. And does he sue for the entire remainder? Mr. KING. He sues for the entire remainder of the term. The CHIEF JUSTICE. And during that remainder there was no appointment or confirmation by the Senate? Mr. KING. That is right. Mr. JUSTICE BRANDEIS. How long was the remainder of the fouryear term? Mr. KING. About 18 months, and he brought suit within seven weeks after the term expired. Mr. JUSTICE BRANDEIS. He brought the suit within six or seven weeks after the term expired; and how long after the removal? Mr. KING. About 16 or 18 months. He put in the whole time protesting against his removal, presumably, and in fact, hoping (if I may be pardoned for going outside of the record) that his successor might be appointed and that he might have an opportunity to go before a committee of the Senate and present the reasons why his successor should not be appointed. In other words, he had no opportunity to protest further than as appears in the record. His successor was not appointed during Myers's unexpired term. Briefly, it amounts simply to this, as stated in the brief of my colleague: The Government gives an improperly removed official the right of action for wrongful dismissal; but if the application of the law as made by the Court of Claims is sound, he is precluded from bringing the action, even after he is given by law the right to bring it. In other words, if the decision of the Court of Claims will stand the test of logic, he has a lawful right without a remedy. I must hasten on. I merely wished to call the attention of the court to this question of laches. Yet, as I take it, the Solicitor General is not insisting upon this feature; in fact, from a practical point of view he impliedly seems willing to waive it, without saying so. We come, then, to the question of the constitutionality of this statute. The only question before the court, as I take it, under the admitted facts, relates to the constitutionality of the act which inhibits the President from removing an official within this particular class designated by the statute without the consent of the Senate. At the outset the Solicitor General very courteously supplied us with a page proof of his brief. I hesitate as to whether I should apoligize or explain a feature resulting from the courtesy on his part. In my brief (page 32), it will be found that I quote this language from the Solicitor General's brief (page proof): There can be in this matter no middle ground, for either Congress has the power or it has not the power of restriction. If it has the power, the method of its exercise and the conditions which it may impose are questions of legislative policy, and as such beyond judicial inquiry. I quoted that innocently, but find that between the time of the page proof and the final proof, as appears here, that part was omitted. I make this explanation, that the court may know I did not intentionally misquote counsel. Counsel evidently progressed along those lines during the interim between the printing of the page proof and the printing of the final proof-probably due to the fact that my worthy colleague had furnished him with a page proof of his |