Arata Bros., F. C. Arata, pres.; William Gadsby & Sons, Walter Gadsby, mgr.; Wentworth & Irwin, Inc., by Chas. G. Irwin; Dayton Hardware Co., F. H. Koltner, mgr.; Blaesing Granite Co., H. J. Blaesing; Rasmusson & Co., by S. C. Rasmusson; C. J. Mathis & Co., J. Mathis; Franklin T. Griffith, president Portland Railway, Light & Power Co.; Marshall-Wells Company, by Chas. Deyette, asst. mgr.; Portland Iron Works, by C. S. Bensall, gen. mgr.; West Coast Specialty Co., by Jas. Ferguson, mgr.; The Oregon News Company, by W. B. Cater, cashier; W. & S. Weinstein, by S. Weinstein; La Grande Creamery Co., by Wm. S. Daniels; The Shaw-Fear Company, W. H. Fear, secy.; J. Simon Bros., by Jos. Simon; Laue-Davis Drug Co., by Jno. M. A. Laue, pres.; Brownsville Woolen Mill Store, J. L. Bowman, prop.; W. B. Haines, pres. Broadway Bank; Glass & Prudhomme Co., per Allen C. Piel, treas.; Wildman & Co., by A. Wildman; Hochfield Bros., by Nubis Hochfield; King-Fisher Mattress Co., Willis Fisher; H. Barde & Sons, Inc., by H. Barde, manager; The Chas. H. Lilly Co., by H. A. Cushing, mgr.; Behnke-Walker Business College, by L. N. Walker, pres.; L. Mayer & Co.; Central Door & Lumber Co., by A. F. Biles, pres.; Portland Belt Mfg. Co., by J. H. Llewellyn, pres.; W. J. Bateman, mgr. for Montgomery Ward & Co.; C. C. Chick Co., by R. Chalouka, mgr.; M. Turuya Co., K. Hibino, mgr.; Knight Shoe Co., by W A. Knight; Henry Jennings & Sons, by Chas. Jennings; Simon's Dept. Store, Meyer Simon; Portland Outfitting Co., J. Bromberg, prop.; Labowitch Bros., by L. Labowitch; Jaeger Bros.. by E. J. Jaeger; Ballou & Wright, C. F. Wright; Noon Bag Company, T. J. Armstrong, pres.; Lang & Co., by I. Lang, pres.; Matthieu Drug Co., S. A. Matthieu; Blumauer-Frank Drug Co., J. B. Bronaugh, sec.; The Oldsmobile Company of Oregon, Arnold Cohen, asst. mgr.; Pierce-Tomlinson Electric Co., by J. C. Tomlinson, sec.; The M. L. Kline Co.; E. House Co.; Edlefson Fuel Company, Inc., by A. H. Edlefson, vice pres. and mgr.; The J. J. Ross Furnishing Co., N. V. Blason; Portland Seed Company, by R. C. Johnson, pres.; Bowman Bros., by Lorenz A. Bowman, prop.; Seaquest Bros., by C. L. Seaquest; The Bank of California, Portland, N. A., by Wm. A. MacRae; L. B. Menefee Lbr., Co., L. B. Menefee, pres.; Pacific Coast Sales Co., C. N. Parker, mgr.; Thanhauser Hat. Co., N. Wasserman, pres. I, M. K. Wigton, hereby certify that I have compared this petition addressed to Hon. Woodrow Wilson, President of the United States, with the original petition, and that this a true and accurate copy of the same without any omissions or additions thereto.

Postmaster, Portland, Oregon. MY DEAR MR. MYERS: This is to acknowledge the receipt of your letter of the 29th ultimo, in which you advise that the local chamber of commerce has not appointed a committee to cooperate with the department for the reason that there are apparently no complaints to investigate, and in reply I wish to state that I am very glad to know that the service in your office is so satisfactory.

Yours very truly,

III. SUPPLEMENTAL PETITION

(Filed February 7, 1922, by leave of court)

(Title omitted.)

Comes now the petitioner and claimant in the above-entitled cause, and for a supplemental petition in this action alleges the following facts, to wit:

That the commission as postmaster of the city of Porland, Oreg., referred to in the original petition, expired on July 21, 1921. That after the pretended removal of the claimant by the President of the United States, on January 31, 1920, as alleged in the original petition, the President of the United States, Woodrow Wilson, about August 24, 1920, pretended to appoint John M. Jones as postmaster of the city of Portland, Oreg. That the said pretended appointment was made during a recess of the Senate of the United States, and thereafter, when the Senate convened in regular session,. on the 4th day of December, 1920, the said President, Woodrow Wilson, sent to the said Senate in session the nomination for appointment of the said Jones, theretofore made as aforesaid.

That the Senate of the United States, then in session, adjourned March 3, 1921, by expiration of its term, without having confirmed the said nomination so made as aforesaid.

That the said nomination of the said Jones by the President, Woodrow Wilson, made as aforesaid, and sent to the Senate, as aforesaid, has never, at any time, been confirmed by the Senate of the United States.

That at all times since the commencement of this action, and up to the expiration of his term of office, as aforesaid, the claimant has been at all times willing and ready and able to perform the duties of postmaster of Portland, Oreg., and has continually offered such services, and demanded and requested of the Postmaster General, acting for and on behalf of the President of the United States, to be restored to his said office of postmaster of Portland, Oreg.

By reason of the premises the claimant has been during all the times from the commencement of this action until the expiration of his term, as aforesaid, entitled to receive the salary and emoluments of said office, which amount to $1,422.05.

Wherefore, the claimant prays that the judgment in this case shall include, in addition to the sums prayed for in the original petition, the said sum of $1,422.05.

WILL R. KING, Attorney for Claimant.

Business address: Munsey Building, Washington, D. C.

MARTIN L. PIPES, of Counsel.

Chamber of Commerce Building, Portland, Oreg.

UNITED STATES OF AMERICA,

State of Oregon, County of Multnomah, s8:

Frank S. Myers, being duly sworn, says: I am the claimant named in the foregoing supplemental petition; that I have read the same, know the contents thereof, and the statements therein are true, as I verily believe.

FRANK S. MYERS.

Subscribed and sworn to before me this 28th day of December, 1921. [SEAL.]

My commission expires March 17, 1924.

EVA WEATHERRED, Notary Public for Oregon.

IV. GENERAL TRAVERSE

No demurrer, plea, answer, counterclaim, set-off, claim of damages, demand, or defense in the premises, having been entered on the part of the defendants, a general traverse is entered as provided by Rule 34.

V. ARGUMENT AND SUBMISSION OF CASE

On March 19, 1923, this case was argued and submitted on merits. by Mr. Will R. King, for the plaintiff, and by Mr. John G. Ewing, for the defendant.

VI. FINDINGS OF FACT, CONCLUSION OF LAW, AND OPINION OF THE
COURT BY HAY, J.

(Filed April 2, 1923)

This case having been heard by the Court of Claims, the court, upon the evidence, makes the following

FINDINGS OF FACT

I. The plaintiff, Frank S. Myers, on April 24, 1913, was duly and regularly commissioned by the President of the United States as postmaster at Portland, Oreg., the same being a post office of the first class. He qualified and entered upon the duties of the office and served throughout the four-year term for which he was appointed. After the expiration of his term, September 4, 1917, he was only recommissioned by the President as postmaster at Portland, Oreg., for a four-year term "from July 21, 1917." He was appointed to said office by the President, by and with the advice and consent of the Senate. The salary of the plaintiff as such postmaster was $6,000 per annum.

II. The plaintiff's appointment as postmaster at Portland, Oreg., was confirmed by the Senate, and after such confirmation he entered upon his second term as such postmaster, and continued to discharge. the duties of his office until February 3, 1920.

On January 22, 1920, John C. Koons, First Assistant Postmaster General, requested the plaintiff to resign his office, which the plaintiff declined to do; and on February 2, 1920, the Postmaster General of the United States sent the following telegram to the plaintiff :

FRANK S. MYERS,

Portland, Oregon:

P. O., WASHINGTON, D. C., 1050 A.,
February 2, 1920.

Replying to your telegram, order has been issued by direction of the President removing you from office of postmaster at Portland effective January thirtyfirst. I have exercised authority given in section 262, Postal Laws and Regulations, and placed inspector in charge of post office. The rights of the department in such cases have been fully determined by the courts. You must have nothing further to do with the office.

On the same date the plaintiff wired a reply to the Postmaster General stating that he had not resigned, would not do so, that the authority granted in said section 262 only applied when a vacancy

existed, that a vacancy did not exist, and that the attempted removal was illegal and therefore ineffectual.

III. The plaintiff as such postmaster continued his protest against his removal from his first receipt of notice thereof until the expiration of the four-year term specified for in his second commission, offering at all times to function as postmaster if permitted to do so. During the entire four-year period of his second commission the plaintiff had no other occupation and at all times stood ready and willing to perform the duties of his office, and drew no salary or compensation from any other service. No part of his salary from January 31, 1920, to July 21, 1921, aggregated the sum of $8.838.72. has been paid to him.

IV. At the time of notifying the plaintiff of his removal from office the Postmaster General placed an inspector in charge of the office. On August 26, 1920, the President appointed John M. Jones as postmaster at Portland, Oreg., and on September 19, 1920, the said Jones took office under that appointment, which was made while the Senate was not in session. The post-office inspector was in charge of the office from February 3, 1920, to September 19, 1920.

At the time the plaintiff was removed from office on February 3, 1920, the Senate was in session and continued in session until it adjourned on June 5, 1920. During that time the President did not communicate to the Senate the removal of the plaintiff from the office of postmaster at Portland, Oreg., nor did he request the Senate to consent to his removal from his office, nor did he nominate a successor to the plaintiff, nor did the Senate consider or take any action upon the removal of the plaintiff from his office.

Congress convened in regular session on December 6, 1920, and expired by operation of law March 4, 1921. No communication of the removal of the plaintiff from his office was made to the Senate during this time, nor did the President during this time nominate to the Senate a successor of the plaintiff in his office.

A special session of the Senate was convened on March 4, 1921, and adjourned on March 15, 1921.

Congress was convened in extra session on April 11, 1921, and recessed on August 24, 1921, to September 21, 1921, and adjourned on November 23, 1921. Congress convened in regular session on the first Monday in December, 1921, and on December 16, 1921, the President appointed John M. Jones postmaster at Portland Oreg., and sent his name to the Senate, and said Jones was confirmed by the Senate on December 19, 1921.

From the time the plaintiff was removed from office on February 3, 1920, to the time of the expiration of his term of office under his second commission-July 21, 1921-the President did not nominate his successor to the Senate nor did he request the advice and consent of the Senate in the removal of the plaintiff from office.

CONCLUSION OF LAW

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the plaintiff is not entitled to recover and that his petition must be dismissed.

Judgment is rendered against the plaintiff in favor of the United States for the cost of printing the record in this case, the amount thereof to be entered by the clerk and collected by him according to law.

OPINION

HAY, Judge, delivered the opinion of the court:

The plaintiff was duly appointed as postmaster at Portland, Oreg., on April 24, 1913, and after the expiration of his first term he was again appointed as such postmaster on September 4, 1917, for a four-year term from July 21, 1917. This appointment was confirmed by the Senate of the United States, and after qualifying as such postmaster he entered upon the duties of his office.

On January 22, 1920, the First Assistant Postmaster General requested the plaintiff to resign his office, which the plaintiff declined to do. On February 2, 1920, the Postmaster General telegraphed plaintiff that an order had been issued by the President of the United States removing him from the office of postmaster at Portland, Oreg., and that in accordance with the Postal Laws and Regulations a post-office inspector would take charge of his office. The plaintiff on the same day telegraphed the Postmaster General that no vacancy existed in his office, that he had not resigned, and would not do so, and that his removal was contrary to law, and was therefore ineffectual. The inspector took charge of the office on February 3, 1920, and drew his salary as inspector, and not as postmaster, and the salary of the postmaster was not paid to anyone while the inspector was in charge of the office.

The plaintiff was removed from his office by the President on February 3, 1920; the Senate was then in actual session. The Senate continued in session until it adjourned on June 5, 1920. During that time the President did not communicate to the Senate the removal of the plaintiff nor request the Senate to consent to his removal, nor did he nominate a successor to the plaintiff.

On August 26, 1920, the Senate not being in session, the President appointed John M. Jones as postmaster at Portland, Oreg., and on September 19, 1920, Jones took office under that appointment as postmaster.

Congress convened in regular session December 6, 1920. That session expired by operation of law March 4, 1921, without any appointment of plaintiff's successor by or with the advice and consent of the Senate.

The Sixty-seventh Congress was in session from April 11, 1921, until August 24, 1921, when it recessed until September 21, 1921, convening on that day and continuing in session to November 23, 1921. On July 21, 1921, the term of the plaintiff under his second commission expired. At neither of these sessions did the Senate act upon the plaintiff's removal from office or upon the appointment of his

successor.

The plaintiff insists that his removal from his office was without authority of law and void; and he sues for the salary of the office from January 31, 1920, to July 21, 1921, the date of the expiration of his term of office, and claims that there is due him the sum of $8,838.72, the amount of salary for the period mentioned.