KEIM v. U S(1900)
This case comes on appeal from a decree of the court of claims dismissing appellant's petition. 33 Ct. Cl. 174. The findings of that court show that petitioner was on April 17, 1865, honorably discharged from the military service of the United States by reason of disability resulting from injuries received in such service. He passed the civil service examination, and on May 7, 1888, was appointed to a clerkship in the Post Office Department. On March 16, 1893, at his own request and on the certificate of the civil service commission, he was trans- [177 U.S. 290, 291] ferred to the Department of the Interior, and assigned to a clerkship in class 1 in the Pension Bureau, with a salary of $1,200 per year. On March 1, 1894, his salary was reduced to $1,000 per annum, at which salary he continued to serve to July 31, 1894, when he was discharged, and has not since been permitted to perform the duties of his clerkship, although ready and willing to do so. The discharge by the Secretary of the Interior was made upon this recommendation from the Commissioner of Pensions: 'The discharge of Mr. Morris Keim was recommended because of his rating as inefficient. No other charges are made against him. William Lochren, Commissioner.' The fourth and sixth findings are as follows:
The petitioner requested additional findings, of which the only portions material to this inquiry are in the latter part of finding 3, that 'he was formally discharged from said service, without any fault of his own, and without just cause, and has not since said last-named date been permitted to discharge the duties of said clerkship, although he has at all times, since said last-named date, stood ready and willing to discharge the duties thereof.' And finding 5: 'That petitioner was at the time of his so-called discharge an efficient clerk, and discharged his duties faithfully and efficiently, and at the time of his said discharge he possessed and now possesses the necessary business capacity for the proper discharge of the duties of said clerkship.'
These findings the court declined to make, 'deeming said requested findings, if true, to be irrelevant to the issue presented.'
Mr. John C. Chaney for appellant.
Assistant Attorney General Boyd for appellee.
Mr. John C. Chaney for appellant.
Assistant Attorney General Boyd for appellee.
Mr. Justice Brewer delivered the opinion of the court:
Upon these facts we are asked to decide whether the courts may supervise the action of the head of a department in discharging one of the clerks therein.
It has been repeatedly adjudged that the courts have no general supervising power over the proceedings and action of the various administrative departments of government. Thus, in Decatur v. Paulding, 14 Pet. 497, 515, 10 L. ed. 559, 568, in which was presented the question of the right of the circuit court of the District of Columbia to issue a writ of mandamus to the Secretary of the Navy to perform an executive act not merely ministerial, but [177 U.S. 290, 293] involving the exercise of judgment, it was said by Chief Justice Taney:
The same proposition was reaffirmed in United States ex rel. Dunlap v. Black, 128 U.S. 40 , 32 L. ed. 354, 9 Sup. Ct. Rep. 12, in an elaborate opinion by Mr. Justice Bradley. See also United States ex rel. Redfield v. Windom, 137 U.S. 636 , 34 L. ed. 811, 11 Sup. Ct. Rep. 197; United States ex rel. Boynton v. Blaine, 139 U.S. 306 , 35 L. ed. 183, 11 Sup. Ct. Rep. 607. In United States ex rel. McBride v. Schurz, 102 U.S. 378, 396 , 26 S. L. ed. 167, 171, it was said by Mr. Justice Miller:
The appointment to an official position in the government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power.
In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. 'It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated [177 U.S. 290, 294] inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.' Re Hennen, 13 Pet. 230, 259, 10 L. ed. 138, 152; Parsons v. United States, 167 U.S. 324 , 42 L. ed. 185, 17 Sup. Ct. Rep. 880. Unless, therefore, there be some specific provision to the contrary, the action of the Secretary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed.
The Revised Statutes, 1754, provides:
But this does not avail the petitioner. He was preferred for appointment and held under that appointment for years. There was no disregard of that section either in letter or spirit; no evasion of its obligations. He was not appointed on one day and discharged on the next, but after his first appointment continued in service until it was found that he was inefficient.
Section 3 of the act of August 15, 1876 (19 Stat. at L. 169, chap. 287) is:
But these sections do not contemplate the retention in office of a clerk who is inefficient, nor attempt to transfer the power of determining the question of efficiency from the heads of departments to the courts. The proviso in section 3 of the act of August 15, 1876, expressly limits the preference to those 'equally qualified.'
No thoughtful person questions the obligations which the nation is under to those who have done faithful service in its army or navy. Congress has generously provided for the discharge of those obligations in a system of pensions more munificent than has ever before been known in the history of the world. But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or continuance in office of incompetent or inefficient clerks simply because they had been honorably discharged from the military or naval service. The preference, and it is only a preference, is to be exercised as between those 'equally qualified,' and this petitioner was discharged because of inefficiency. That, it may be said, does not imply misconduct but simply neglect, but a neglected duty often works as much against the interests of the government as a duty wrongfully performed, and the government has a right to demand and expect of its employees, not merely competency, but fidelity and attention to the duties of their positions.
Nowhere in these statutory provisions is there anything to indicate that the duty of passing, in the first instance, upon the qualifications of the applicants, or, later, upon the competency or efficiency of those who have been tested in the service, was taken away from the administrative officers and transferred to the courts. Indeed, it may well be doubted whether that is a [177 U.S. 290, 296] duty which is strictly judicial in its nature. It would seem strange that one having passed a civil service examination could challenge the rating made by the commission, and ask the courts to review such rating, thus transferring from the commission, charged with the duty of examination, to the courts a function which is, at least, more administrative than judicial; and if courts should not be called upon to supervise the results of a civil service examination equally inappropriate would be an investigation into the actual work done by the various clerks, a comparison of one with another as to competency, attention to duty, etc. These are matters peculiarly within the province of those who are in charge of and superintending the departments, and, until Congress by some special and direct legislation makes provision to the contrary, we are clear that they must be settled by those administrative officers.
We see no error in the conclusions of the Court of Claims, and its decree is affirmed.