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(Acting Comptroller Mitchell to A. C. Caine, disbursing clerk, Department of Justice, January 12, 1905.)
In your communication of January 4, 1905, you request my decision of the question which you therein present as follows:
"While serving as associate justice of the supreme court of New Mexico, under a commission running to January 13, 1906, Benjamin S. Baker was, on December 9, 1904, removed by the President, and a notice of the removal was sent to Mr. Baker by telegraph and by mail. On December 12, 1904, Ira A. Abbott's nomination to succeed 'Benjamin S. Baker, removed,' was sent to the Senate. On December 19, 1904, the President revoked his order removing Mr. Baker, and Mr. Baker tendered his resignation to take effect upon the qualification of his successor. Mr. Abbott's nomination has not been confirmed by the Senate, and no other person has been nominated or appointed to succeed Mr. Baker.
"I have the honor to ask whether, in view of these facts and paragraph 2 of section 2 of article 2 of the Constitution and of section 1877 of the Revised Statutes, I am authorized to pay the salary of Benjamin S. Baker as associate justice of the supreme court of New Mexico for the period between December 9, 1904, and January 1, 1905.”
Sections 1864 and 1877 of the Revised Statutes contain the following provisions:
"SEC. 1864. The supreme court of every Territory shall consist of a chief justice and two associate justices, and they shall hold their offices for four years, and until their successors are appointed and qualified."
"SEC. 1877. The
of every Territory shall be nominated and, by and with the advice and consent of the Senate, appointed by the President."
Section 2 of the act of July 10, 1890 (26 Stat., 226), provides for the appointment of an additional associate justice of the supreme court of the Territory of New Mexico, and it also provides that he shall hold his office "for the term of four years, and until his successor is appointed and qualified."
From your statement that Mr. Baker was removed by the President on December 9, 1904, it is understood that the order of removal was unqualified, and therefore that it was intended to take effect upon its receipt. You also state that the notice of removal was sent by telegraph and by mail, but you do not state when it was received by Mr. Baker. I also infer from your communication that Mr. Baker has continued
to perform the duties of the office without intermission until January 1, 1905, or later.
In the absence of statutory restrictions, the removal of the incumbent of an office takes effect upon the receipt by him of notice of his removal, and his right to the compensation of the office is incident to the legal title to the office, and not to the performance of his duties. (4 Comp. Dec., 602.)
But under the state of facts presented by you and the above provisions of law that the associate justices of the supreme court of the Territory of New Mexico shall hold their offices for four years, and until their successors are appointed and qualified," it is necessary to consider the question whether the President was authorized to remove Mr. Baker from the office held by him, his removal to take effect upon receipt of notice thereof.
In general, the power of removal is incident to the power of appointment. (Ex parte Hennen, 13 Pet., 230.)
In the case of the American Insurance Company et al. v. Canter (1 Pet., 541) it was held that Territorial courts are not constitutional courts in which the judicial powers conferred by the Constitution on the General Government can be deposited; that they are legislative courts created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make laws regulating the Territories belonging to the United States; and that. the jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in its exercise of its powers over the Territories of the United States.
In Good v. Martin (95 U. S., 98), it was said:
"Territorial courts are not courts of the United States within the meaning of the Constitution, as appears by all the authorities. (Clinton et al. v. Englebrecht, 13 Wall., 434; Hornbuckle v. Toombs, 18 Wall., 648.)"
In 3 Op. Att. Gen., 409, it was held that-
"Territorial judges, not being constitutional but legislative officers only, and not civil officers within the meaning of the Constitution, they are not subject to impeachment and trial before the Senate of the United States."
In 5 Op. Att. Gen., 288, the question of whether the President had the rightful power to remove from office the chief
justice of the Territory of Minnesota, for incapacity, unfitness, and want of moral character, was referred by the President to the Attorney-General. In that opinion the Attorney-General said:
"That these Territorial judges were appointed under a law which limited their commissions to the term of four years, does by no means imply that they shall continue in office during that term, however they may misbehave. An express declaration in the statute that they should not, during the term, be removed from office, would have been in conflict with the Constitution, and would have precluded either the House of Representatives or the President from the exercise of their respective powers of impeachment or removal. The law intended no more than that these officers should certainly at the end of that term, be either out of office or subjected again to the scrutiny of the Senate upon a renomination. When it is proposed that this power of removal shall be exerted upon a judge appointed for the administration of justice to the people of a Territorial government, it must be admitted that caution and circumspection should be used. But the power of removal is vested by the Constitution in the President of the United States to promote the public welfare, to enable him to take care that the laws be faithfully executed, to make him responsible if he suffers those to remain in office who are manifestly unfit and unworthy of public confidence. * * * I have only * * % to add that in my opinion you, as President of the United States, have the power to remove from office the chief justice of the Territory of Minnesota, for any cause that may, in your judgment, require it."
In Howard v. United States (22 Ct. Cl., 305) it was held that judges of the supreme courts of Territories are subject to removal from office at the pleasure of the President. In the above case the court said:
"The law, in our opinion, is settled that a Territorial court is not a court of the United States in the sense of the Constitution, but, with its judges, is a creation of Congress, subject to the will of that body exercised under the power given it to 'make all needful rules and regulations respecting the Territories or other property of the United States.' (Constitution, Art. IV, sec. 3.)
"These judges, being then officers not covered by the clause fixing the tenure of the United States judges 'during good behavior,' are subject to the same incidents as to removal or suspension as are other civil officers appointed by the President after confirmation by the Senate.
"The power to appoint includes the power to remove or
suspend unless some other provision of law binding upon the Executive interferes with its free exercise, and it has been the unvarying practice of all Presidents to remove from office a civil officer when in their opinion it seemed wise so to do. Nor has the fact that the officer held a commission for a term of years ever been held to give him greater legal right than though it ran during the pleasure of the President.' (100 U. S., 680.)"
Whether Congress is empowered to restrict the power of removal by the President of officers appointed by and with. the advice and consent of the Senate is a question that has been extensively discussed, but it has not yet been definitely decided by the Supreme Court. But in the case of Parsons v. United States (167 U. S., 324), in which this discussion is reviewed, it was held, quoting from the syllabus, that—
"Section 769 of the Revised Statutes, which enacts that 'district attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years from their respective dates,' provides that the term shall not last longer than four years, subject to the right of the President to sooner remove.'
In the opinion in this case the Supreme Court also referred to the provision in the act of March 5, 1849 (9 Stat., 406), organizing the Territory of Minnesota, that the judges of the supreme court of that Territory should "hold their offices for the period of four years," and to the opinion of the AttorneyGeneral thereon (5 Op. Att. Gen., 288), in which he held that this provision "limited their commissions to the term of four years," but that it did not "imply that they shall continue in office during that term." And he held that they were subject to removal by the President.
And referring to the construction of such provisions as granting an unconditional and absolute term of four years which can not be shortened by the President, or the President and Senate combined, and which leaves the incumbent subject only to removal by the slow and weary process of impeachment, the court said:
"This could never have been the intention of Congress. On the contrary, we are satisfied that its intention in the repeal of the tenure of office sections of the Revised Statutes was again to concede to the President the power of removal if taken from him by the original tenure of office act, and by reason of the repeal to thereby enable him to remove an offi
cer, when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office."
Following the views of the Supreme Court in that case, I think the provision in section 1864, supra, that associate justices "shall hold their offices for four years and until their successors are appointed and qualified," must be construed as a limitation of their term of office and not as a restriction upon the President's power of removal.
Justices of the supreme courts of the Territories are nominated by the President and confirmed by the Senate. If Baker was removed on December 9, 1904, and he was notified of that fact prior to the revocation of the removal, he thereby ceased to be an officer and nothing could reinstate him in the office short of a new nomination and confirmation, and he would not be entitled to the salary and emoluments of said office subsequent to receipt by him of notice of his removal. (Mimmack v. United States, 97 U. S., 432; Blake v. United States, 103 U. S., 230; United States v. Corson, 114 U. S., 619.)
It is well established that where an officer has been removed, a subsequent revocation of his removal is inoperative. A removal creates a vacancy in the office which can only be filled by a new appointment made in conformity with law. In the present case such an appointment can only be made by the President by and with the advice and consent of the Senate.
In the Mimmack case (supra), an officer of the Army had tendered his resignation and had been notified that it had been accepted; subsequently the President revoked his acceptance of the resignation; and the officer claimed that he continued to hold the office and was entitled to the pay attached thereto. In the opinion in the case the court said:
"Officers of the kind are nominated by the President and confirmed by the Senate; and if the petitioner ceased to be such an officer when notified that his resignation had been accepted, it requires no argument to show that nothing could reinstate him in the office short of a new nomination and confirmation."
In the case of United States v. Corson (supra) the effect of the revocation of an order removing an officer of the Army was considered. The facts were that Corson was, prior to