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county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases: Provided, however, that all proceedings to enjoin the Comptroller under this act shall be had in a circuit, district, or territorial court of the United States, held in the district in which the association is located."

Angeles, 202 U. S. 313, 26 Sup. Ct. 652, 50 L
Ed. 1046; Taylor v. Anderson, 234 U. S. 74,
34 Sup. Ct. 724, 58 L. Ed. 1218; Hopkins v.
Walker, 244 U. S. 486, 489, 37 Sup. Ct. 711,
61 L. Ed. 1270. Clearly the plaintiff's bill
discloses a case wherein his right to recover
turns on the construction and application of
the National Banking Law; and we think
the proceeding is one to enjoin the Comp-
troller under provisions of that law within
the true intendment of the Judicial Code.
The decree below must be
Reversed.

In Kennedy v. Gibson (1869), 8 Wall. 498, 506 (19 L. Ed. 476) this court ruled that section 57 should be construed as if it read: "And be it further enacted, that suits, actions and proceedings by and against," etc., the words "by and" having been accidentally omitted. "It is not to be supposed that Congress intended to exclude the associations from suing in the courts where they can be sued." "Such suits may still be brought by the associations in the courts of the United (Argued March 12, 1920. States." And it further held "that receivers also may sue in the courts of the United States by virtue of the act, without reference to the locality of their personal citizenship." 1. UNITED STATES 35-CONGRESS MAY VEST

The Revised Statutes:

"Sec. 629. The Circuit Courts shall have original jurisdiction as follows: *

"Tenth. Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations.

"Eleventh. Of all suits brought by (or against) any banking association established in the district for which the court is held, under the provisions of title "The National Banks,' to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title."

"Sec. 736. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located."

Parts of the foregoing subsections 10 and

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BURNAP v. UNITED STATES.

1920.)
(No. 228.)

(252 U. S. 512)

Decided April 19,

POWER OF APPOINTMENT IN DESIGNATED OF-
FICERS.

Notwithstanding Const. art. 2, § 2, subd. 2, providing for the appointment of officers by the President, with the advice and consent of the Senate, Congress may vest the appointment of inferior officers in the President alone, in courts of law, or in the heads of departments. 2. OFFICERS 7-POWER OF REMOVAL OR

SUSPENSION IS INCIDENT OF OTHER POWERS.

The power to remove an inferior officer is, in the absence of statutory provision to the contrary, an incident of the power to appoint, and the power of suspension is an incident of the power of removal.

3. UNITED STATES 36 "HEAD OF DEPARTMENT," RESPECTING POWER OF APPOINTMENT, DEFINED.

Within Rev. St. § 169 (Comp. St. § 248), authorizing heads of departments to employ clerks and other employés, "the head of a department" is the Secretary in charge of one of the great divisions of the executive branch of the government, who is a member of the Cab

inet, and does not include heads of bureaus or lesser divisions.

and Phrases, First and Second Series, Head of [Ed. Note.-For other definitions, see Words

Department.]

4. UNITED STATES 36—“EMPLOYÉS” IN BUREAU OR DIVISION ARE EMPLOYÉS IN THE DEPARTMENT.

[3] What constitutes a cause arising "under" the laws of the United States has been often pointed out by this court. One does so arise where an appropriate statement by the plaintiff, unaided by any anticipation or avoidance of defenses, discloses that it really and substantially involves a dispute or controversy respecting the validity, construction Within Rev. St. § 169 (Comp. St. § 248), or effect of an act of Congress. If the plain-as to the appointment of clerks and other emtiff thus asserts a right which will be sus-ployés by heads of departments, persons emtained by one construction of the law, or defeated by another, the case is one arising under that law. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Boston & Montana Mining Co. v. Montana Ore Purchasing Co., 188 U. S. 632, 23 Sup. Ct. 434, 47 L. Ed. 626; Devine v. Los

ployed in a bureau or division of a department

are as much "employés" in the department as clerks or messengers working under the immediate supervision of the Secretary in charge of the department.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Employé.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

5. UNITED STATES 36-"EMPLOY” IS EQUIV-3287), prohibiting removals of persons in the ALENT OF "APPOINT." classified service except for cause and for reasons given in writing, and civil service rule 12, and where no requirement of such act or rule was disregarded, there was no irregularity in the suspension or removal of such employé. Appeal from the Court of Claims.

Within Rev. St. § 169 (Comp. St. § 248), as to the employment of clerks and employés by heads of departments, the term "employ" is the equivalent of appoint.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Employ.]

6. UNITED STATES 36-"CLERKS AND OTHER EMPLOYÉS," WHO MAY BE APPOINTED BY HEAD OF DEPARTMENT, DEFINED; "OFFICER";

"EMPLOYÉ."

In Rev. St. § 169 (Comp. St. § 248), relative to appointments by heads of departments, the term "clerks and other employés" is sufficiently broad to include persons filling positions requiring technical skill, learning, and professional training, and the distinction between an officer and an employé does not rest on differences in the qualifications necessary, or in the services performed, but on the manner in which Congress has provided for the creation of the several positions, their duties, and appointment thereto.

Suit by George E. Burnap against the United States. The petition was dismissed (53 Ct. Cl. 605), and the petitioner appeals. Affirmed.

Mr. George A. King, of Washington, D. C., for appellant.

514 *Mr. Assistant Attorney General Davis, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

On July 1, 1910, Burnap entered upon duty in the office of public buildings and grounds as landscape architect at the salary of $2400 a year, having been appointed to that position by the Secretary of War. On September 14, 1915, he was suspended, upon charges, from duty and pay, and on August 3, 1916, he was discharged "in order to promote the SUBJECT TO APPOINTMENT BY SECRETARY OF efficiency of the service." His successor was WAR.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Officer.] 7. UNITED STATES 36-EMPLOYÉS OF OFFICE OF PUBLIC BUILDINGS AND GROUNDS NOT

Under Rev. St. § 1797, as amended by Act April 28, 1902 (Comp. St. § 3308), giving the Chief of Engineers charge of public buildings and grounds in the District of Columbia, and section 1799 (Comp. St. § 3310), authorizing him to employ such persons as may be appropriated for from year to year, the landscape architect, for whose employment an appropriation is made by Act June 17, 1910, and later appropriation acts should be appointed by the Chief of Engineers, and not by the Secretary of War, notwithstanding Rev. St. § 169 (Comp. St. § 248).

8. UNITED STATES 36

OFFICER HAVING

POWER OF APPOINTMENT HELD AUTHORIZED

TO REMOVE EMPLOYÉ.

That a landscape architect in the office of public buildings and grounds was improperly appointed by the Secretary of War, instead of the Chief of Engineers, did not deprive the Chief of Engineers of power to remove him. 9. UNITED STATES 36-APPOINTMENT BY WRONG OFFICER CURED BY ACQUIESCENCE.

The defect in the appointment of a landscape architect in the office of public buildings and grounds, in that he was appointed by the Secretary of War, and not by the Chief of Engineers, was cured by the acquiescence of the Chief of Engineers for five years.

10. UNITED STATES 36-REMOVAL OF EMPLOYÉ IN OFFICE OF PUBLIC BUILDINGS AND GROUNDS NOT IRREGULAR.

If regulations governing the removal of employés in the office of the Chief of Engineers does not apply to employés in the office of public buildings and grounds, the right of removal by the Chief of Engineers was governed only by Act Aug. 24, 1912, § 6 (Comp. St. 8

not appointed until July 28, 1917. Burnap contends that his suspension and discharge were illegal, and hence inoperative; that he retained his position until his successor was appointed; and that until such appointment he was entitled to his full salary. United States v. Wickersham, 201 U. S. 390, 26 Sup. Ct. 469, 50 L. Ed. 798.

His claim for

such salary was rejected by the Auditor of the War Department (of which the office of public buildings and grounds is a part), and, upon appeal, also by the Comptroller of the Treasury. Then this suit was brought in the Court of Claims. There his petition was dismissed, and the case comes here on appeal.

Burnap rests his claim mainly upon the fact that he was appointed by the Secretary of War, contending that therefore only the Secretary of War could remove him (21 Op. Attys. Gen. 355), and that no action tantamount to a removal by the Secretary was taken until his successor was appointed. Before discussing the nature and effect of the action taken, it is necessary to consider the general rules of law governing appointment and removal in the civil service of the United States, the statutes relating to the office of public buildings and grounds, and those providing for the appointment of a landscape architect therein.

*515

[1, 2] First. The Constitution (article 2, § 2, subd. 2) confers upon the *President the power to nominate, and with the advice and consent of the Senate to appoint, certain officers named and all other officers established by law whose appointments are not otherwise therein provided for; but it authorizes

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Congress to vest the appointment of inferior 588; United States v. Perkins, 116 U. S. officers either in the President alone, in the 483, 6 Sup. Ct. 449, 29 L. Ed. 700; United courts of law, or in the heads of departments States v. Mouat, 124 U. S. 303, 8 Sup. Ct. (6 Op. Attys. Gen. 1). The power to remove 505, 31 L. Ed. 463; United States v. Hendee, is, in the absence of statutory provision to 124 U. S. 309, 8 Sup. Ct. 507, 31 L. Ed. 465; the contrary, an incident of the power to United States v. Smith, 124 U. S. 525, 8 Sup. appoint. Ex parte Hennen, 13 Pet. 230, 259, Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 260, 10 L. Ed. 138; Blake v. United States, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674; 103 U. S. 227, 231, 26 L. Ed. 462; United United States v. Schlierholz (D. C.) 137 Fed. States v. Allred, 155 U. S. 591, 594, 15 Sup.|616; Martin v. United States, 168 Fed. 198, Ct. 231, 39 L. Ed. 273; Keim v. United 93 C. C. A. 484. States, 177 U. S. 290, 293, 294, 20 Sup. Ct. 574, 44 L. Ed. 774; Reagan v. United States, 182 U. S. 419, 426, 21 Sup. Ct. 842, 45 L. Ed. 1162; Shurtleff v. United States, 189 U. S. 311, 316, 23 Sup. Ct. 535, 47 L. Ed. 828. And the power of suspension is an incident of the power of removal.

Second. The powers and duties of the office of public buildings and grounds had their origin in the Act of July 16, 1790, c. 28, 1 Stat. 130, § 2, which authorized the President to appoint three Commissioners to lay out a district for the permanent seat of the government. By Act of May 1, 1802, c.

Section 169 of the Revised Statutes (Comp. 41, 2 Stat. 175, the offices of Commissioners St. 248) provides that:

"Each head of a department is authorized to employ in his department such number of clerks of the several classes recognized by law, and such messengers, assistant messengers, copyists, watchmen, laborers, and other employés, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year."

[3-6] The term "head of a department" means, in this connection, the Secretary in charge of a great division of the executive branch of the government, like the State, Treasury, and War, who is a member of the Cabinet. It does not include heads of bu

516

reaus or lesser divisions. United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482. Persons employed in a bureau or division of a department are as much employés in the department within the meaning of Section 169 of the Revised Statutes as clerks or messengers rendering service under the imme diate supervision of the Secretary. Manning's Case, 13 Wall. 578, 580, 20 L. Ed. 706; United States v. Ashfield, 91 U. S. 317, 319, 23 L. Ed. 396. The term "employ" is used as the equivalent of appoint. 21 Op. Attys. Gen. 355, 356. The term "clerks and other employés," as there used, is sufficiently broad to include persons filling positions which require technical skill, learning and professional training. 29 Op. Attys. Gen. 116, 123; 21 Op. Attys. Gen. 363, 364; 20 Op. Attys. Gen. 728. The distinction between officer and employé in this connection does not rest upon differences in the qualifications necessary to fill the positions or in the character of the service to be performed. Whether the incumbent is an officer or an employé is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto. 15 Op. Attys. Gen. 3; 17 Op. Attys. Gen. 532; 26 Op. Attys. Gen. 627; 29 Op. Attys. Gen. 116; United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; United States v. Moore, 95 U. S. 760, 762, 24 L. Ed.

were abolished and their duties devolved upon a Superintendent, to be appointed by the President. By Act of April 29, 1816, c. 150, 3 Stat. 324, the office of Superintendent was abolished and his duties devolved upon a Commissioner of Public Buildings. By Act of March 2, 1867, c. 167, § 2, 14 Stat. 466, the office of Commissioner was abolished and his duties devolved upon the Chief of Engineers. By section 1797 of the Revised Statutes, as amended by Act of April 28, 1902, c. 594, 32 Stat. 152 (Comp. St. § 3308), it is declared that the Chief of Engineers has "charge of the public buildings and grounds in the District of Columbia, under such regula*tions as may be prescribed by the President through the War Department." And section 1812 (Comp. St. § 3327) requires the Chief of Engiand Grounds, to submit annual reports to the neers, as Superintendent of Public Buildings Secretary of War to accompany the annual message of the President to Congress.

*517

Third. There is no statute which creates

an office of landscape architect in the office of public buildings and grounds nor any which defines the duties of the position. The only authority for the appointment or employment of a landscape architect in that office is the legislative, executive, and judicial appropriation Act of June 17, 1910, c. 297, 36 Stat. 504 (and later appropriation acts in the same form, 36 Stat. 1207; 37 Stat. 388, 766; 38 Stat. 482, 1024; 39 Stat. 93), which reads as follows:

"Public Buildings and Grounds.

"Office of Public Buildings and Grounds: Assistant engineer, two thousand four hundred dollars; assistant and chief clerk, two thousand four hundred dollars; clerk of class four; clerk of class three; clerk and stenographer, one thousand four hundred dollars; messenger; landscape architect, two thousand four hundred dollars; surveyor and draftsman, one thousand five hundred dollars; in all, fourteen thousand three hundred and forty dollars."

Then follow the foremen and night and day watchmen in the parks.

(40 Sup.Ct.)

[7] Prior to July 1, 1910, priation acts had provided for a "landscape gardener" at the same salary. There is no statute which provides specifically by whom the landscape architect in the office of public buildings and grounds shall be appointed. As the office of public buildings and grounds is a part of the bureau of the Chief of Engineers, and that bureau is in the War Department, the Secretary of War would, under section 169, have the power to appoint the landscape architect as an employé in his department, in the absence of other pro

*518

similar appro- pursuant to paragraph 13 of section 5 of General Orders No. 5 of the Office of Chief of Engineers, 1915, being regulations governing the classified civil service as applied to the Engineer Department at Large, approved by the Civil Service Commission and the Secretary of War.1 Burnap contends that the provisions of that paragraph were inapplicable to his position: (1) Because these regulations relate to the Engineer Department at Large and the office of public buildings and grounds is not included therein; and (2) because they relate to employés, and that the landscape architect was an officer, not an employé. As has been shown, Burnap was an employé. But the main contention

vision dealing with *the subject. 21 Op. Attys. Gen. 355. But section 1799 of the Revised Statutes (Comp. St. § 3310) provides is wholly immaterial. If paragraph 13 does

that:

"The Chief of Engineers in charge of public buildings and grounds is authorized to employ in his office and about the public buildings and grounds under his control such number of persons for such employments, and at such rates of compensation, as may be appropriated for by Congress from year to year."

not apply to the position of landscape architect, the exercise of the right of removal which rested in the Chief of Engineers was governed only by the provisions of the Act of August 24, 1912, c. 389, § 6, 37 Stat. 555 (Comp. St. § 3287),2 and civil service rule XII. For no regulations *relating to the matter appear to have been "prescribed by the President, through the War Department" under the authority reserved in Revised Statutes, § 1797, as amended. It is not contend

*520

This more specific provision excludes positions in the office of public buildings and grounds from the operation of the general provision of section 169 conferring the power of appointment upon the heads of departed that the procedure adopted in suspending ments. Compare 10 Dec. of Comptroller of Treas., 577, 583. The appointment of Burnap by the Secretary of War, instead of by the Chief of Engineers, was without authority in law.

[8, 9] Fourth. As the power to remove is an incident of the power to appoint, the Chief of Engineers would clearly have had power to remove Burnap, if the appointment had been made by him instead of by the Secretary of War. The fact that Burnap was, by inadvertence, appointed by the Secretary, does not preclude the Chief of Engineers from exercising in respect to him the general power to remove employés in his office conferred, by implication, in section 1799 of the Revised Statutes. The defect in Burnap's original appointment was cured by the ac

and removing Burnap disregarded any requirement of the act of 1912 or of the civil service rule. Nor are we asked to review the discharge as having been made without adequate cause. The power of removal was legally exercised by the Chief of Engineers; and no irregularity has been pointed out in the suspension which was incident to it.

Sixth. As the power of discharge was vested in the Chief of Engineers and was unaffected by the fact that the appointment had been inadvertently made by the Secretary of War, we have no occasion to consider the contention of Burnap, that it was beyond the Secretary's power to delegate to the Chief of Engineers authority to remove employés in his bureau. Nor need we consider the con

Paragraph 13: "Discharge for Cause.-Dis

quiescence of the Chief of Engineers through- charge for cause of any regularly appointed clas

out five years, so that Burnap's status was better than that of a mere de facto officer. But it was not superior to what it would have been if he had been regularly appointed by the Chief of Engineers. United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463.

[10] Fifth. The question remains, whether there was a legal exercise by the Chief of Engineers of his power of removal. The suspension of Burnap was by letter from his immediate superior, the officer in charge of the office of public buildings and grounds under the Chief of Engineers; and to the latter the papers were promptly transmitted. The discharge was by direct command of the Chief of Engineers. Both the suspension and the discharge purported to be ordered

519

sified employé will be subject to the provisions of civil service rule XII and cannot be made without the approval of the Chief of Engineers. An employé may be suspended without pay by the officer in charge, who should at once furnish the employé with a statement in writing of the charges against him and give him a reasonable time within which to make answer thereto in writing. As soon as

reply is received, or in case no reply is received within the time given him, all papers should be submitted to the Chief of Engineers, with full statement of the facts in the case and the officer's recommendations."

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tention of the government, that the action
taken was tantamount to a removal by the
Secretary, because the discharge was or-
dered by the Chief of Engineers after con-
sideration of the matter at Burnap's request
by the Secretary of War, a reference of it
by him to the Judge Advocate General, and
a return of the papers by the Secretary of
War to the Chief of Engineers for action in
accordance with the Judge Advocate Gener-
..l's suggestions.

The judgment of the Court of Claims is
Affirmed.

(252 U. S. 399)
SOUTH COVINGTON & CINCINNATI ST.
RY. CO. v. COMMONWEALTH

OF KENTUCKY.

The statute (Ky. St. § 795), as far as we are concerned with it, is as follows:

All corporations, companies or persons "engaged in running or operating railroads, of this state, either in part or whole, either in their own name or that of others, are hereby required to furnish separate coaches or cars for the travel or transportation of the white and colored passengers on their respective lines of railroad. Each compartment of a coach divided by a good and substantial wooden partition, with a door therein, shall be deemed a separate coach within the meaning of this act, and each sepa. rate coach or compartment shall bear in some conspicuous place appropriate words in plain letters indicating the race for which it is set apart."

401

*It is also provided that there shall be no difference or discrimination in the quality of the coaches or cars. A violation of the act

(Argued March 18 and 19, 1920. Decided April is made a misdemeanor.

19, 1920.)

No. 252.

COMMERCE 62 SEPARATE COACH LAW HELD NOT INTERFERENCE WITH INTERSTATE COMMERCE AS APPLIED TO PARTICULAR ROAD. A Kentucky statute requiring railroads to furnish separate coaches for white and colored passengers is not an unconstitutional interference with interstate commerce, as applied to a railroad whose termini and stations are all in the state of Kentucky, and which was constructed by a Kentucky corporation, though operated by another Kentucky corporation, whose lines extend into Ohio, and which carries passengers for a single fare and without change from points on the first road into the state of Ohio.

Mr. Justice Day, Mr. Justice Van Devanter, and Mr. Justice Pitney dissenting.

Interurban electric railroads are subject to the above provisions. We may say in passing that the railway company denies that it is interurban, but admits that the fact has been decided against it and accepts the ruling. It will be considered, therefore, as interurban and being so it was within the law and the charge of the indictment. The charge is that it (the company) at the time designated

"then and there had authority and was authorized to operate a line of railroad ten miles in length between Covington and Erlanger, and beyond, through and by means of its control, ownership and lease of and from the Cincinnati, Covington & Erlanger Railway Company, a corporation organized under the laws of the commonwealth of Kentucky, an interurban railroad company authorized to construct and operate an electric railroad ten miles in length in this

In Error to the Court of Appeals of the county between Covington and Erlanger and State of Kentucky.

beyond, and incorporated under the general railroad laws of this commonwealth, said defendant then and there operating said line of railroad, the construction of which by the Cincinnati, Covington & Erlanger Railway Com

Criminal prosecution by the Commonwealth of Kentucky against the South Covington & Cincinnati Street Railway Company. A judgment against the defendant was affirm-pany had theretofore been authorized." ed by the Court of Appeals of Kentucky (181 Ky. 449, 205 S. W. 603), and it brings error. Affirmed.

$400

*Mr. Alfred C. Cassatt, of Cincinnati, Ohio, for plaintiff in error.

Messrs. Stephens L. Blakely, of Covington, Ky., and Charles Harwood Morris, of Frankfort, Ky., for the Commonwealth of Kentucky.

And having such authority and control of the line of railroad, the company violated the law of the state by not observing its require. ment as to separate coaches.

The defense to the action was, and the contention here is, not that the facts charged are not true, but that the statute so far as it is attempted to be made applicable to the company is an interference with interstate commerce, and that the defense was made in the trial court in a motion to dismiss and Mr. Justice MCKENNA delivered the opin- for a new trial and also in the Court of Apion of the Court.

peals.

In support of the contention it is stated that the company's principal business was inter

402

The Railway Company was indicted for a violation of a statute of Kentucky which required companies or persons running or operating railroads in the state, to furnish sepa-state commerce, the *carriage of passengers rate coaches or cars for white and colored between Cincinnati and the Kentucky cities passengers. across the Ohio river; that the car in ques

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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