Appellant filed his petition in the court of claims October 13, 1897, and an amended petition October 27, 1899, seeking to recover salary as United States commissioner in the Indian territory, at the rate of $1,500 per annum, from February 1, 1896, to September 30, 1899, aggregating $5, 375.
The findings of fact and conclusion of law were as follows:
1. The claimant was, on the 25th day of April, 1893, appointed by the United States court for the Indian territory United States commissioner within said territory, under the provisions of 39 of an act of Congress approved May 2, 1890, chapter 182 (1st Supp. Rev. Stat. 737), and upon the 1st day of March, 1895, the claimant was one of the present commissioners, then holding office under an existing appointment. On April 17, 1895, the following order was entered of record in the United States court in the Indian territory, southern district:
C. B. Kilgore, Judge.'
2. He continuously performed the duties and received the salary of said office until the 31st day of January in the year 1896, when the following letter was entered upon the records of the United States court in the Indian territory, in the southern district, by the Hon. Constantine B. Kilgore, judge of said court:
January 31st, 1896
The letter was not sent to the claimant or served upon him. No other statement of cause was made. The claimant was given no notice of any charge against him. No hearing was allowed the claimant and no opportunity to submit proof in his defense.
4. On February 10, 1896, one John R. Williams, who had [182 U.S. 419, 421] been designated by said judge as United States commissioner in the claimant's place, came to claimant's office with two armed deputy marshals, and, presenting his order of appointment, demanded possession of the dockets, books, and papers belonging to claimant's office as United States commissioner.
5. The order of appointment of said Williams is as follows:
January 31st, 1896.
6. The claimant protested and refused to recognize said Williams as his successor in said office, excepting so far as he was compelled thereto by the exercise of superior force on the part of the deputy marshals aforesaid and said Williams. Thereupon the claimant and said Williams joined in the following instrument of writing:
7. The claimant received a salary of $1,500 per annum up to the 3d day of February, 1896, but since that date has not been paid said salary or any part thereof.
8. Claimant took no other or further action to assert his claim to said office, or to obtain a reversal of the action of Judge Kilgore until the institution of this proceeding.
9. From the 3d day of February, 1896, until the 7th day of October, 1897, John R. Williams, who was appointed by Judge Kilgore to said office in claimant's stead, exercised said office and was paid the salary thereof. On said date one Horace M. Wolverton was appointed as the successor of said John R. Williams by Hon. Hosea Townsend, United States judge for said district, and since that time has exercised said office and has been paid the salary thereof.
10. From the 3d day of February, 1896, until the commencement of this action, the disbursing clerk of the Department of Justice paid to the persons who succeeded claimant to said office the salary of said office, in the absence of any notice on the part of claimant that he claimed to be lawfully entitled to said office and the salary thereof, or any claim or demand on the part of claimant for the payment to him of such salary for said period of time or any part thereof.
Conclusion of Law.
Upon the foregoing findings of fact, the court decide, as a conclusion of law, that the petition be dismissed. [182 U.S. 419, 423] Judgment was thereupon rendered dismissing the petition, and the case was brought to this court by appeal. The opinion below is reported 35 Ct. Cl. 90.
Mr. Wm. B. King for appellant.
Mr. Assistant Attorney General Pradt for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
Section 39 of the act of May 2, 1890 (26 Stat. at L. 98, chap. 182), provided:
The act of March 1, 1895 (28 Stat. at L. 695, chap. 145), provided for additional judges of the court, and by 4:
Appellant was appointed a commissioner April 25, 1893, and was such on March 1, 1895. In view of the proviso he was continued in office until January 31, 1896, when he was removed by the judge of the district where he resided, and another person appointed.
He now contends that the removal was void, because the cause assigned for the action of the judge was not a 'cause prescribed by law,' and because he was given no notice of any charge against him, and no hearing, contrary to the statute.
The commissioners appointed by the judges of the United States court in the Indian territory are inferior officers, not holding their offices for life or by any fixed tenure, and they fall within the settled rule that the power of removal is incident to the power of appointment. Ex parte Hennen, 13 Pet. 230, 258, 10 L. ed. 138, 152; Parsons v. United States, 167 U.S. 324 , 42 L. ed. 185, 17 Sup. Ct. Rep. 880. But it is assumed that because of the language of the proviso commissioners appointed by the court prior to March 1, 1895, formed an [182 U.S. 419, 425] exceptional class from commissioners appointed by the judges of that court after that date, and hold office until they are removed for causes prescribed by existing law, or until Congress passes a law defining such causes. The latter view may be rejected at once, for the words, 'causes prescribed by law,' manifestly relate to causes prescribed when the act was approved, or at least when the removal was made. Not only is there nothing here to give them any other meaning, but it cannot be presumed that Congress intended to forbid the exercise by the judges of their power in the matter of these appointments in the instance of these particular commissioners, or to provide that they should hold office during life, or until Congress should specify causes subjecting them to removal, while all other commissioners were removable at the will of the power appointing them.
The proviso was enacted apparently out of abundant caution lest the legislation in respect of the United States court in the Indian territory might operate in itself to turn the then commissioners out of office; and if Congress had intended in addition that they should hold office free from the rule applicable to others, we think that the intention would have been plainly expressed.
The inquiry is, therefore, whether there were any causes of removal prescribed by law March 1, 1895, or at the time of the removal. If there were, then the rule would apply that where causes of removal are specified by Constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient.
The suggestion that the proviso refers to such causes as courts might recognize as just will not do, for 'prescribed by law' is prescribed by legislative act, and removal for cause, when causes are not defined nor removal for cause provided for, is a matter of discretion, and not reviewable.
It does not appear that any causes for removal of these court officers were ever affirmatively specified by Congress; but it is said that Congress had prescribed such causes by the adoption [182 U.S. 419, 426] in the Indian territory of certain laws of Arkansas. By 31 of the act of May 2, 1890, some of those laws were put in force in the Indian territory, and by 39 the commissioners were authorized to exercise all the powers conferred by the laws of Arkansas on justices of the peace within their districts, and the provisions of chapter 91 of those laws regulating the jurisdiction of and procedure before justices of the peace were extended to that territory. By the act of March 1, 1895, these were re-enacted, and chapters 45 and 46 of Mansfield's Digest, treating of criminal law and criminal procedure, were also put in force there.
The argument is that the effect of these provisions was to put the commissioners in the place of justices of the peace in Arkansas, and that consequently the causes prescribed by law for the removal of justices of the peace must be taken as prescribed by law as causes for the removal of commissioners.
In our opinion this conclusion does not follow. In order to clothe the commissioners with the powers pertaining to justices of the peace, this was conveniently accomplished by reference, but that did not convert these officers of the United States court in the Indian territory into justices of the peace, or change the relations between them and the judges of that court. Justices of the peace in Arkansas by state Constitution and laws hold office for two years, and cannot be removed except for cause and on notice and hearing. The commissioners hold office neither for life nor for any specified time, and are within the rule which treats the power of removal as incident to the power of appointment, unless otherwise provided. By chapters 45 and 46 justices of the peace on conviction of the offenses enumerated are removable from office, but these necessarily do not include all causes which might render the removal of commissioners necessary or advisable. Congress did not provide for the removal of commissioners for the causes for which justices of the peace might be removed, and if this were to be ruled otherwise by construction the effect would be to hold the commissioners in office for life unless some of those specially enumerated causes became applicable to them. [182 U.S. 419, 427] We agree with the court of claims that this would be a most unreasonable construction, and would restrict the power of removal in a manner which there is nothing in the case to indicate could have been contemplated by Congress.
If causes of removal had been prescribed by law before the removal of appellant, that would have presented a different question, but as there were then none such the proviso did not operate to take him out of the rule expounded in Ex parte Hennen, and the mere fact that in that particular this part of the proviso was inoperative as to him did not change the result.