IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1924 No. 77 LOIS P. MYERS, ADMINISTRATRIX OF THE ESTATE OF FRANK S. MYERS, DECEASED, APPELLANT บ. THE UNITED STATES APPEAL FROM THE COURT OF CLAIMS SUBSTITUTED AND REPLY BRIEF FOR THE APPELLANT ON REARGUMENT, APRIL, 1925 WILL R. KING, Attorney of Record for Appellant. MARTIN L. PIPES, Of Counsel. 27 INDEX Appellant's substitute brief Page. Statement of the case-. The issues Defense of laches untenable_. The conclusion reached by the Court of Claims is contrary to the 31 32 32 33 36 The creation and appointment of inferior officers contingent upon congressional action___ 43 Parsons v. United States, 167 U. S. 324_. Pollock v. Farmers Loan & Trust Co., 157 U. S. 429_ Porter v. Coble, 246 Fed. 244_ Rapier, In re, 143 U. S. 110_. Rhode Island v. Massachusetts, 12 Peters, 657 Shurtleff v. United States, 189 U. S. 314_. 39 48 42 49 48 40 OTHER AUTHORITIES Beck on the Constitution_ Hamilton's Work, Vol. VII__. Illinois Law Review, Vol. XIX, March, 1925. Opinions, Attorney General, Vol. I, p. 629. Opinions, Attorney General, Vol. I, pp. 471, 705, 706_. Opinions, Attorney General, Vol. II, p. 509. Paschall on the Constitution___ Postal Laws and Regulations, section 253_ Postmaster General's Annual Report of December 4, 1835_ President Taft's Message to Congress of June 27, 1912_ Taft on Our Chief Magistrate and His Powers_-_. STATUTES Revised Statutes, section 171_ The act of September 2, 1789, 1 Stat. 65. SUBSTITUTED AND REPLY BRIEF FOR THE APPELLANT ON REARGUMENT, APRIL, 1925 In the Supreme Court of the United States. October Term, 1924. No. 77. Lois P. Myers, administratrix of the estate of Frank S. Myers, deceased, appellant, v. The United States. Appeal from the Court of Claims STATEMENT On April 24, 1913, the late F. S. Myers was duly appointed postmaster at Portland, Oreg. After the expiration of his first term he was again appointed by the President for a four-year term from July 21, 1917. His appointment was duly confirmed by the United States Senate, 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 office of postmaster of Portland, Oreg., and that in accordance with the postal laws and regulations a postoffice 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 President attempted to remove plaintiff from his office 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 consent to the plaintiff's removal from office or upon the appointment of his successor. |