The act of Congress of January 16, 1883, and its supplements, establishing what is known as the Civil Service Commission, are not unconstitutional. (In re Morris S. Miller, supreme court District of Columbia, Decisions of Courts on Civil Service Laws, Lyon, 1889, p. 111.)

An action to have a statute of the United States declared unconstitutional can not be maintained in the name of the United States except by the authorization and under the direction of the Attorney-General. Action for the purpose of having the United States civil-service act adjudged to be unconstitutional. (United States ex rel. Hinckley v. Eaton, Decisions of Courts on Civil Service Laws, Lyon, 1889, p. 104.)

The subjects of the extent and manner of the exercise of the appointing power and of the duties, relations, numbers, compensation, protection, and encouragement of those in the public service to which civil-service rules naturally relate would seem to be within the scope of legislative authority. (4 Opins. A. G., 165; Debates in Senate, Globe, 1869, p. 17, etc.)

(c) SEPARATION OF EXECUTIVE AND LEGISLATIVE DEPARTMENTS. By the Constitution, the only direct participation allowed to the legislative department in the matter of appointments is on the part of the Senate alone. It having been held that the power to appoint includes the power to remove, no participation in appointments can be given to the other House of Congress or to any other officer. (Maurice v. The United States, 2 Brockenborough R., 101; 4 Opins. A. G., 164-166; 11 Opins. A. G., 212; 13 Opins. A. G., 516.)

(d) CERTIFICATION FOR APPOINTMENT.

When a postmaster notifies a secretary of a board of examiners of a selection for appointment from a certification, all rights under the certification are exhausted, and the Postmaster-General, or the postmaster, has no right to make any further appointment without a new requisition and certification. Pulaski v. Lyman, supreme court District of Columbia, vol. 21 Washington Law Reporter, p. 403. opinion of Attorney-General, April 8, 1891, ante, where the same view is taken.

(e) TENURE OF OFFICE-REMOVAL.

See

is absolutely

The right of the relator to the office which he filled dependent upon the tenure of the office. If the tenure of his office was at the will and pleasure or at the will and discretion of the executive officer under whom he held office, then at any time that executive officer had the right to remove with or without reasons, provided he does not violate the civil-service law, which is the only provision of Congress that curtails or abridges the right of removal.

Although, apparently, it has become a difficult thing to get into the civil service, yet it is just as easy to get out as it was before the enactment of the law. To the extent that the spoils system has been abolished by the civil-service law, it is a great benefit to the civil service. To the extent, however, that Congress failed to provide for the tenure of office of appointees under the civil-service law, it appears to me that the purposes of the act are clearly abortive. Whatever may be my opinion as to the competency of the relator to fill the position that he occupied, or my opinion as to the insufficiency and inadequacy and impropriety and lack of public policy of the reasons that were given for his removal, it is perfectly clear to me that this court is without authority to interfere in this case. (Opinion of Bradley, J., dismissing the petition for a writ of mandamus of Eugene E. Gaddis; Congressional Record, vol. 26, p. 6224.) [The revised rules of May 6, 1896, forbid removals or reductions for political or religious reasons. See Rule II, clauses 3, 6, and 8.]

Congress has left in the heads of Departments all the discretionary power that was vested in them prior to the passage of the civil-service law and the promulgation of the rules relative to removals. (Pulaski r. Lyman, supreme court District of Columbia; vol. 21, Washington Law Reporter, p. 403.)

We see nothing in the provisions of this act (act of May 28, 1896, providing that office deputy marshals shall thereafter be paid salaries instead of receiving fees, and that their employment by the marshal shall be approved by the Attorney-General) which is inconsistent with the previous recognized position of a deputy marshal in regard to his tenure or service, and conclude that the former statutes read with this act can not be construed other than that the term of both office and field deputy marshals must cease with that of the marshal who appointed them. We conclude, therefore, that the complainant was, at the time of the filing of his bill, not in the executive civil service of the United States, within the meaning of the civil service rules promulgated November 2, 1896, and therefore he is not entitled to maintain this action. (Dudley r. James, decided in the United States circuit court for the district of Kentucky, 1897.)

If the acts of Congress are not sufficient to include such regulation of the public service as is desirable, the remedy must be applied by the legislative and not by the judicial department of the Government.

*

There is, however, no provision in this act which denies to the appointing power the right of removal, discharge, promotion, or change in rank and compensation as might have been done prior to the act, with the single exception noted-prohibiting such removal or change for giving or failing to contribute to a political purpose, or for rendering or failure to render a political service. It has been supposed in some quarters that Congress undertook by this civil-service act to restrain the exercise of the power to remove by the appointing power, and it is said that if this was not the intention of Congress then the act is mere brutum fulmen, and the attempt of Congress to improve the civil service is futile and abortive. I do not so understand the act, nor do I consider the object of Congress to be abortive from failure to so provide. If it was the design of the Congress to absolutely prohibit the exercise of the power of removal, it was a simple matter to have so declared; and the fact that removal was forbidden for a particular cause is strong to show that it was not designed to be forbidden with respect to other causes.

It still remains true that the act procures a body of men for the public service whose appointment is made to depend upon fitness and not upon political favor. This was the object sought to be accomplished. It is in no way disturbed because Congress has failed to otherwise limit the power of removal, because notwithstanding the power to remove may exist, the filling of the vacancy so created must not be controlled by political considerations, but the appointment must be made from those who have passed examination.

This (section 8 of Civil Service Rule II) is an authoritative expression by the Executive of the United States of his desire and command to his subordinates with respect to removal from office of those coming within the scope of the civil-service regulations. Possessed by the Constitution of the power of appointment and removal, except, possibly, as he may be therein restricted by act of Congress, the Executive has the right to regulate for himself the manner of appointment and removal. He may direct his subordinates who exercise under him in certain cases the power of appointment and removal with respect thereto, and may regulate the manner in which they may act for him; but this is an administrative order of the Executive, not done in compliance with any law or in regulation of the execution of any law enacted by Congress restricting his right of removal, but is simply an instruction to those who hold positions by virtue of his appointment of the manner in which they shall discharge their duties in respect to the removal of their sub

ordinates. The order is not the law of the land; it is not the emanation of the lawmaking power, but is merely a regulation adopted by the Executive, as he rightfully might, in regulation of the conduct of those who are subject to his authority. He made it, and may at his pleasure rescind it.

Courts of equity are not constituted to regulate the departments of the Government; their jurisdiction is limited to the protection of the rights of property; they have no concern, as I understand the boundaries of their jurisdiction, over the appointment and removal of public officers. Possibly in exceptional cases where one having a vested right in and possession of a public office is sought to be ejected therefrom unlawfully and by force, equity may intervene by writ of injunction to protect such possession against the interference by a claimant to the office, remanding the latter to the legal remedies by which he may establish his title. (Judge Jenkins, of the United States circuit court for the northern district of Illinois, in Carr . Gordon, postmaster, et al., unreported.)

The act of January 16, 1883, commonly called the civil-service act, deals in no direct way with the tenure of office of those persons then or who might thereafter be included within the classified service. Nor does it make any declaration expressly bearing upon the subject of removals from office, except in the single provision found in the thirteenth section, which prohibits any promotion, degradation, removal, or discharge of any officer or employee for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. It is now well settled that in the absence of constitutional or statutory regulation the power of appointment carries with it as an incident the power to remove.

It is said that the civil-service rules, so far as they deny the unrestrained power of removal, are not the law of the land, but are mere executive orders, dependent for their force upon the vigilance and earnestness of the Chief Executive in compelling his appointees to regard and obey regulations voluntarily imposed by ́ him as a voluntary regulation by the appointing power of its otherwise unrestrained liberty of removal. To this contention I am constrained to yield my assent. These rules regulating the power of removal were made by the President and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed, and if after that date they came into force, it was alone by virtue of an executive order. Law is not thus enacted, altered, or amended. Law must be an expression of a rule of action by the legislative authority. These civil-service rules, so far as they deal with the executive right of removal, a right which is but an incident of the power of appointment, are but expressions of the will of the President and are regulations imposed by him upon his own action or that of heads of departments appointed by him. He can enforce them by requiring obedience to them, on penalty of removal. But they do not give to the employees within the classified civil service any such tenure of office as to confer upon them a property right in the office or place.

Another and equally serious objection to the power of this court to grant relief is found in the fact that a court of equity will not by injunction restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another. This is a general limitation upon the power of courts of equity, regardless of whether the removal is from a Federal, State, or municipal office. (Judge Lurton, of the circuit court of the United States for the middle district of Tennessee, in Morgan . Nunn, decided in January, 1898.)

t.

Fleming v. Stahl, brought in the circuit court of the United States for the western district of Arkansas (December, 1897.) This was an injunction proceeding against a United States marshal to restrain the removal of a deputy. Judge Rogers decided that the President might make rules or regulations, administrative in their nature, which would govern the policy of his administration, and he could enforce

the same by the removal of any persons from office who refused to abide thereby, but they could not have the force and effect of law, nor would the courts enforce them.

Thompson v. Hicks, brought in the circuit court of the United States for the eastern district of Pennsylvania, October session, 1897. This was a bill in equity to restrain the removal of Thompson as a superintendent of a station of the Philadelphia post-office. The matter has not come up for argument.

Couper v. Smythe, postmaster, brought in the circuit court of the United States for the northern district of Georgia, November, 1897. This was a bill to restrain the removal of Couper as assistant postmaster. The public journals stated that the decision of the court followed that of Judge Cox in the Woods case, which appears below.

OPINION OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, BY COX, J., IN WOODS v. GARY, POSTMASTER-GENERAL.

[Opinion rendered September 14, 1897, and printed in the Washington Star of that date.] The bill and amended bill in substance set forth that in June, 1893, the complainant was appointed superintendent of mails at the post-office in Louisville, Ky., and has ever since held the office and discharged the duties of the same, and is still in possession of it, and it is worth to him more than $2,500; that without there having been any complaint or charges made against him, and without giving him any notice of any such charges or an opportunity to be heard in relation thereto, the defendants have issued an order removing him from his said position of superintendent of mails and appointing one O'Donnell in his place; that such proceeding is contrary to the civil-service rules promulgated by authority of the act of January 16, 1883, known as the civilservice act, one of which, of the date of November 2, 1896, being clause 3 of rule 2, .provides that "No person in the executive civil service shall dismiss or cause to be dismissed, or make any attempt to procure the dismissal of, or in any manner change the official rank or compensation of, any other person therein because of his political or religious opinions or affiliations."

Another of which, dated July 27, 1897, added the following to the foregoing, viz: "No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.”

The complainant's office is within the classified executive civil service of the postoffice service of the United States, and subject to competitive examination, and complainant believes, and therefore charges, that the sole ground of the attempt to remove him is that he is a Democrat, and it is intended to appoint a Republican to succeed him. He therefore asks an injunction against the proposed action of the Department. A demurrer was filed on the part of the defendant.

QUESTION OF JURISDICTION.

On the authority of ex parte Sawyer (124 U. S., 200), and the cases therein cited, I shall be compelled to hold that I have no jurisdiction as a court of equity to enjoin the Postmaster-General and the Assistant Postmaster-General from removing the complainant from his position.

There is not entire unanimity among the Federal judges on this subject. Two if not three of the justices of the Supreme Court dissented from the opinion as announced by Justice Gray, and ten years after that opinion was delivered we find district judge Jackson asserting the right of a complainant to injunctive relief in a case of attempted removal from the office of deputy marshal on the very grounds of the present application.

The decision of the Supreme Court had no reference to the civil-service act, for the office involved in that case was held under State authority and only related to

the form of the relief sought. It has seemed to me that it would be more satisfactory that, instead of denying relief on the ground of jurisdiction only, I should give some attention to the civil-service act itself, and consider whether, if jurisdiction existed, the complainant would be entitled to relief.

CONSTITUTIONAL PROVISION.

The Constitution of the United States, in Article II, section 2, clause 2, provides: "He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments."

There does not appear to have been any act of Congress specially creating the office of superintendent of mails, but such officers evidently were appointed by the Postmaster-Generai under his general authority to conduct the business of his Department, and his authority was recognized in several appropriation acts. Thus, in the appropriation act of 1889, chapter 374 (25 Statutes, page 842), there is an appropriation for superintendents of mails, salary not exceeding 45 per cent of the salary of the postmaster, and also for assistant superintendents. And in a previous year, 1878, there was an appropriation for nine assistant superintendents of Railway Mail Service, who shall receive each a salary of $2,500. (20 Stats., 140.)

AUTHORITY FOR APPOINTMENTS.

It may be assumed that under this legislation the Postmaster-General was authorized to make the appointments, and that those officers were of the class of inferior officers whose appointment could be vested by Congress in the head of the Department. If the complainant is not in this category, then, as he was not appointed by the President by and with the advice and consent of the Senate, he is holding his place without any authority of law, and has no standing in court.

The subject of appointments and removal from office was lately discussed at length by the Supreme Court of the United States (169 U. S. R., 32). That was the case of a district attorney of the United States for the northern district of Alabama, who had been appointed, as usual, for four years, but who was removed from office by the President within that term. He denied the President's right to remove him before the expiration of his term, and brought suit against the United States in the Court of Claims to recover the fees which had accrued to the office since his removal, and from an adverse judgment he appealed to the Supreme Court. The Supreme Court, upon a review of the decisions, the debates in Congress, and the opinions of the Attorneys-General, reiterated the doctrine repeatedly asserted in all departments of the Government, that the right of removal from office was an incident of the right of appointment, and held that although the appointment was made by and with the advice and consent of the Senate, the appointing power was really with the President, and he had in consequence the right to remove; and further, that the designation of four years as the term of the appointment was not intended to give a term that should, at all events, last for that time, but to restrict the term of service to that period, subject all the time to the pleasure of the appointing power.

ANOTHER CITATION.

That was the case of an appointment by the President. But the court also cites and adopts anew its former opinion in the case In re Hennen (13 Pet., 230), which was the case of a clerk of the district court of Louisiana, who, after being appointed in