MEMORANDUM DECISIONS DISPOSED OF AT OCTOBER TERM, 1926 (273 U. S. 769) 6 No. 10, original. The UNITED STATES of No. 158. Seward K. LOWE et al., petitionAmerica, complainant, v. The STATE OF WIS-ers, v. Alexander J. DICKSON. Oct. 4, 1926. CONSIN. Oct. 4, 1926. Mr. W. D. Mitchell, See, also, 269 U. S. 547, 46 S. Ct. 105, 70 L. Sol. Gen., of Washington, D. C., for the United States. Bill of complaint dismissed on motion of Mr. Solicitor General Mitchell for the complainant. No. 10. The UNITED STATES, appellant, v. Lucia E. BLOUNT, in her own right and as administratrix, c. t. a., of the ESTATE OF Henry F. BLOUNT, deceased. Oct. 4, 1926. Appeal from the Court of Claims. For opinion below, see 59 Ct. Cl. 328. Mr. W. D. Mitchell, Sol. Gen., of Washington, D. C., for the United States. Mr. Jesse B. Adams, of Washington, D. C., for appellee. Dismissed on motion of Mr. Solicitor General Mitchell for the appellant. No. 99. J. MCGUIRE, appellant, v. RAILROAD LABOR BOARD. Oct. 4, 1926. Appeal from the District Court of the United States for the Northern District of Illinois. For opinion below, see 3 F. (2d) 488. Mr. Donald R. Richberg, of Chicago, Ill., for appellant. Appeal dismissed and case remanded to the United States District Court for the Northern District of Illinois with directions to dismiss the petition without costs to either party, per stipulation of counsel, on motion of Mr. Solicitor General Mitchell in that behalf. Ed. 405; 108 Okl. 241, 236 P. 399. Messrs. Claude Nowlin, of Oklahoma City, Okl., and Samuel Herrick, of Washington, D. C., for petitioners. Mr. Patrick H. Loughran, of Washington, D. C., for respondent. Suggestion of the death of Seward K. Lowe and motion to substitute Susan Lowe as the party petitioner granted on motion of Mr. Raymond M. Hudson in behalf of counsel for the petitioners. No. 156. Wade JOHNSON, plaintiff in error, v. The STATE OF GEORGIA; and No. 157. Jarrett BENFORD, plaintiff in error, v. The STATE OF GEORGIA. Oct. 4, 1926. In error to the Supreme Court of the State of Georgia. Mr. G. Y. Harrell, of Lumpkin, Ga., for plaintiffs in error. Mr. George M. Napier, of Atlanta, Ga., for the State of Georgia. Dismissed for want of jurisdiction. For opinion below, see 160 Ga. 199, 127 S. E. 608. (272 U. S. 52) (47 S.Ct.) 1789, construing Const. art. 2, as authorizing removal by President. MYERS v. UNITED STATES. (Reargued April 13, 14, 1925. Decided Oct. 25, 11. Constitutional law 1926.) No. 2. 1. Post office ~7(1). First-class postmaster, removed from office in February, 1920, by President without consent of Senate, held, under circumstances, not guilty of laches for failure to bring suit for salary until April, 1921. 2. Constitutional law 58-Post Office 7(1). Act Cong. July 12, 1876, § 6 (Comp. St. 7190), requiring consent of Senate to removal by President of postmasters of the first, second, and third classes, held invalid; the President, under Const. art. 2, having sole power of removal. 3. Constitutional law 50. Reasonable construction of the Constitution demands that the branches of government should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. 7. Officers 60. 20. Congress having, after full consideration and with acquiescence and long practice of all branches of government, established construction of Constitution, it cannot subsequently by mere legislation reverse such construction. 12. Constitutional law 58. Congress, under Const. art. 2, has no authority to legislate as to method of removal of inferior officers without changing their method of appointment by the President with consent of the Senate. 13. Constitutional law ~58. Const. art. 2, grants to the President the executive power of government, and excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices. 14. Constitutional law 20-Weight of congressional legislation in determining construction of Constitution depends on nature of question, attitude of executive and judicial branches, as well as on number of Instances In execution of law affording opportunity for objection. In the use of congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend, not only on nature of question, but also on attitude of executive and judicial branches of the government, as well as on number of instances in execution of law in which opportunity for objection is afforded. 15. Constitutional law 19. Contemporaneous legislative exposition of Constitution, when founders of government and framers of Constitution were actively participating in public affairs, acquiesced in for long term of years, fixes construction to be given its provisions. Tenure of Office Act of 1867, in so far as it Power of removal of executive officers is attempted to prevent President from removing incident to the power of appointment. executive officers, and subsequent legislation of the same effect, held invalid, under Const. art. 2. Mr. Justice McReynolds, Mr. Justice Brandeis, and Mr. Justice Holmes, dissenting. Appeal from Court of Claims. 8. United States 35. Restrictions on President's power of removal from office is not to be implied from Const. art. 2, requiring consent of Senate to appointment. 9. United States 35. Const. art. 1, § 8, does not vest in Congress power to make provision for removal of executive officers appointed by the President with consent of Senate, under article 2. 10. United States 35. Express provisions in Act Cong. May 15, 1820 (3 Stat. 582), for removal of officers appointed under the act, held not to indicate that President possessed no power of removal independently thereof, but, on the contrary, to show adoption in conformity to legislative decision of Suit by Lois P. Myers, administratrix of the estate of Frank S. Myers, against the United States. Judgment for defendant (58 Ct. Cl. 199), and plaintiff appeals. Affirmed. Messrs. Will R. King, of Portland, Or., and L. H. Cake, of Washington, D. C. (Martin L. Pipes, of Portland, Or., of counsel), for appellant. Mr. George Wharton Pepper, of Philadelphia, Pa., amicus curiæ. Mr. James M. Beck, Sol. Gen., of New York City, and Robert P. Reeder, Sp. Asst. Atty. Gen., for the United States. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #106 *Mr. Chief Justice TAFT delivered the opinion of the Court. This case presents the question whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate. with the advice and consent of the Senate as a first-class postmaster, it is provided that: "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law." [2] The Senate did not consent to the President's removal of Myers during his term. If this statute in its requirement that his term should be four years unless sooner removed by the President by and with the consent of *108 Myers, appellant's intestate, was on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Or., for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he the *Senate is valid, the appellant, Myers' adwas removed from office by order of the Post-ministratrix, is entitled to recover his unpaid master General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate committee on post offices, asking to be heard, if any charges were filed. He protested to the department against his removal, and continued to do so until the end of his term. He pursued no other occupation and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920. *107 salary for his full term and the judgment of the Court of Claims must be reversed. The government maintains that the requirement is invalid, for the reason that under article 2 of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from that given by that court. We are therefore confronted by the constitutional question and cannot avoid it. The relevant parts of article 2 of the Constitution are as follows: "Section 1. The executive Power shall be vested in a President of the United States of America. * * "Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. [1] *The Court of Claims gave judgment against Myers and this is an appeal from that judgment. The court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U. S. 367, 39 S. Ct. 293, 63 L. Ed. 650; Nicholas v. United States, 257 U. S. 71, 42 S. Ct. 7, 66 L. Ed. 133, and Norris v. United States, 257 U. S. 77, 42 S. Ct. 9, 66 L. Ed. 136. These cases show that when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in "He shall have Power, by and with the Advice this regard. He was constant in his efforts at and Consent of the Senate, to make Treaties, reinstatement. A hearing before the Senate provided two thirds of the Senators present concur; and he shall nominate, and by and with committee could not be had till the notice of the Advice and Consent of the Senate, shall aphis removal was sent to the Senate or his suc-point Ambassadors, other public Ministers and cessor was nominated. From the time of his Consuls, Judges of the Supreme Court, and all removal until the end of his term, there were other Officers of the United States, whose Apthree sessions of the Senate without such no-pointments are not herein otherwise provided tice or nomination. He put off bringing his for, and which shall be established by Law; but suit until the expiration of the Sixty-Sixth the Congress may by Law vest the Appointment Congress, March 4, 1921. After that, and of such inferior Officers, as they think proper, three months before his term expired, he filed in the President alone, in the Courts of Law, or his petition. Under these circumstances, we in the Heads of Departments. think his suit was not too late. Indeed the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown. By the sixth section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179 (Comp. St. § 7190), under which Myers was appointed *109 "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. "Section 3. He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and (47 S.Ct.) expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. "Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Section 1 of article 3 provides: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold | their offices during good behavior. The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested, was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from *110 office by impeachment. The subject *was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and during the Revolution and while the articles were given effect, Congress exercised the pow. er of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596: January 7, 1779, 13 Journals, 32-33; June, 1779, 14 Journals, 542, 712, 714; November 23. 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115. Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan introduced by Edmund Randolph. 1 Farrand. Records of the Federal Convention, 21. It gave to the executive "all the executive powers of the Congress under the Confederation," which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the committee of the whole this resolution declared for a national executive of one person to be elected by the Legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the committee on detail (1 Farrand, 230), which recommended that the executive power should be vested in a single person to be styled the President of the United States, that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the Unit ed States and appoint officers in all cases not otherwise provided by the Constitution (2 | Farrand, 185). The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court. After the great compromises of the convention-the one giving the states equality of *111 representation in the *Senate, and the other placing the election of the President, not in Congress, as once voted, but in an electoral college, in which the influence of larger states in the selection would be more nearly in proportion to their population-the smaller states led by Roger Sherman, fearing that under the second compromise the President would constantly be chosen from one of the larger states, secured a change by which the appointment of all officers, which theretofore had been left to the President without restriction, was made subject to the Senate's advice and consent, and the making of treaties and the appointments of ambassadors, public ministers, consuls, and judges of the Supreme Court were transferred to the President, but made subject to the advice and consent of the Senate. This third compromise was effected in a special committee in which Gouverneur Morris of Pennsylvania represented the larger states, and Roger Sherman the smaller states. Although adopted finally without objection by any state in the last days of the convention, members from the larger states, like Wilson and others, criticized this limitation of the President's power of appointment of executive officers and the resulting increase of the power of the Senate. 2 Farrand, 537, 538, 539. In the House of Representatives of the First Congress, on Tuesday, May 18, 1789, Mr. Madison moved in the committee of the whole that there should be established three executive departments, one of Foreign Affairs, another of the Treasury, and a third of War, at the head of each of which there should be a Secretary, to be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President. The committee agreed to the establishment of a Department of Foreign Affairs, but a discussion ensued as to making the Secretary removable by the President. 1 Annals of Congress, 370, 371. "The question was now taken and carried, by a considerable majority, in fa 112 vor *of declaring the power of removal to be in the President." 1 Annals of Congress, 383. On June 16, 1789, the House resolved itself into a committee of the whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words "to be removable from office by the President of the United States." 1 Annals of Congress, 455. After a very full discussion the question was put: Shall the words "to be removable by the President" be struck out? It was deter 114 mined in the negative-yeas 20, nays 34. 1 United States, or in any other case of vacan- sion: "Mr. Benson moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,' should during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department." 1 Annals of Congress, 578. "Mr. Benson stated that his objection to the clause 'to be removable by the President' arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution." 1 Annals of Congress, 579. Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said: "They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee." 1 Annals of Congress, 578, 579. Mr. Benson's first amendment to alter the second clause by the insertion of the italicized words, made that clause read as follows: "That there shall be in the State Department an inferior officer to be appointed by the said principal officer, and to be employed therein as he shall deem proper, to be called the chief clerk in the Department of Foreign Affairs. and who, whenever the principal officers shall be removed from office by the President of the The first amendment was then approved by a vote of 30 to 18. 1 Annals of Congress, 580. Mr. Benson then moved to strike out in the first clause the words "to be removable by the President," in pursuance of the purpose he had already declared, and this second motion of his was carried by a vote of 31 to 19. 1 Annals of Congress, 585. The bill as amended was ordered to be engrossed, and read the third time the next day, June 24, 1789, and was then passed by a vote of 29 to 22, and the clerk was directed to carry the bill to the Senate and desire their concurrence. 1 Annals of Congress, 591. It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt. after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness. The discussion was a very full one. Fourteen out of the 29 who voted for the passage of the bill and 11 of the 22 who voted against the bill took part in the discussion. Of the members of the House, 8 had been in the Constitutional Convention, and of these 6 voted with the majority, and 2, Roger Sherman and Elbridge Gerry, the latter of whom had refused to sign the Constitution, voted in 115 the minority. After *the bill as amended had passed the House, it was sent to the Senate, where it was discussed in secret session, without report. The critical vote there was upon the striking out of the clause recognizing and affirming the unrestricted power of the President to remove. The Senate divided by 10 to 10, requiring the deciding vote of the Vice President, John Adams, who voted against striking out, and in favor of the passage of the bill as it had left the House.1 Ten of the Senators had been in the Constitutional Convention, and of them 6 voted that the power of removal was in the President alone. The bill, having passed as it 1 Maclay shows the vote 10 to 10. Journal of William Maclay, 116. John Adams' Diary shows 9 to 9. 3 C. F. Adams, Works of John Adams, 412. Ellsworth's name appears in Maclay's list as voting against striking out, but not in that of Adams-evidently an inadvertence. |