Keim was honorably discharged from the military service by
reason of disability resulting from injuries received in it. He
passed the civil service examination, and, after service in the
Post Office Department, was transferred to the Department of the
Interior at his own request. Soon after, he was discharged because
his rating was inefficient. No other charge was made against him.
Held that the courts of the United States could not
supervise the action of the head of the Department of the Interior
in discharging him.
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 transferred
Page 177 U. S. 291
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:
"IV. At the time of his said discharge, the requirements of the
public service in said Pension Bureau demanded the retention of a
clerk in plaintiff's place; the Secretary of the Interior, upon the
recommendation of the Commissioner of Pensions, retained at the
time of plaintiff's discharge, and now retains, other clerks of the
same division who have received since plaintiff's discharge, and
are now receiving, the same salary, to-wit, $1,000 per annum (one
receiving $1,200 per annum), who have not been honorably discharged
from the military or naval service of the United States and who are
not shown to this Court, except as in these findings set forth, to
have possessed at the time of plaintiff's discharge better or
inferior business capacity for the proper discharge of the duties
of their said offices than the qualifications for the said duties
possessed by plaintiff at that time. On or about the day plaintiff
received notice of his discharge, additional clerks were appointed
to duties in the same division in which he served in said bureau,
who never rendered any military or naval service. It does not
appear that any of these clerks was regarded or reported as
inefficient by any superior officer, nor does it appear that those
so retained or those thereafter appointed possessed better, or
equal, or inferior qualifications for the discharge of the duties
of their respective offices than those possessed therefor by the
plaintiff."
"VI. There is no evidence that the plaintiff made any effort to
secure other employment, or that he has or has not been employed at
any kind of work from and after his said discharge,
Page 177 U. S. 292
July, 1894. Nor is there evidence as to the difference in amount
between his salary while in the government service and any moneys
he might have earned or could have reasonably earned or has earned
in other ways since his said discharge."
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. 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,
39 U. S. 515,
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
Page 177 U. S. 293
involving the exercise of judgment, it was said by Chief Justice
Taney:
"The court could not entertain an appeal from the decision of
one of the secretaries, nor revise his judgment in any case where
the law authorized him to exercise discretion or judgment. Nor can
it by mandamus act directly upon the officer and guide and control
his judgment or discretion in the matters committed to his care in
the ordinary discharge of his official duties. . . . The
interference of the courts with the performance of the ordinary
duties of the executive departments of the government would be
productive of nothing but mischief, and we are quite satisfied that
such a power was never intended to be given to them."
The same proposition was reaffirmed in
United States ex Rel.
Dunlap v. Black, 128 U. S. 40, in an
elaborate opinion by Mr. Justice Bradley.
See also United
States ex Rel. Redfield v. Windom, 137 U.
S. 636;
Boynton v. Blaine, 139 U.
S. 306. In
United States v. Schurz,
102 U. S. 378,
102 U. S. 396,
it was said by Mr. Justice Miller:
"Congress has also enacted a system of laws by which rights to
these lands may be acquired and the title of the government
conveyed to the citizen. This Court has with a strong hand upheld
the doctrine that, so long as the legal title to these lands
remained in the United States and the proceedings for acquiring it
were as yet
in fieri, the courts would not interfere to
control the exercise of the power thus vested in that tribunal. To
that doctrine we still adhere."
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
Page 177 U. S. 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."
In re Hennen,
13 Pet. 230,
38 U. S. 259;
Parsons v. United States, 167 U.
S. 324. 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, sec. 1754, provides:
"Persons honorably discharged from the military or naval service
by reason of disability resulting from wounds or sickness incurred
in the line of duty shall be preferred for appointments to civil
offices, provided they are found to possess the business capacity
necessary for the proper discharge of the duties of such
offices."
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. 169, is:
"That whenever, in the judgment of the head of any department,
the duties assigned to a clerk of one class can be as well
performed by a clerk of a lower class, or by a female clerk, it
shall be lawful for him to diminish the number of clerks of the
higher grade and increase the number of the clerks of the lower
grade within the limit of the total appropriation for such clerical
service:
Provided, That in making any reduction of force
in any of the executive departments, the head of such department
shall retain those persons who may be equally qualified who have
been honorably discharged from the military or naval service of the
United States, and the widows and orphans of deceased soldiers and
sailors. "
Page 177 U. S. 295
In section 7 of the Civil Service Act of 1883 (22 Stat. 406) is
this proviso:
"But nothing herein contained shall be construed to take from
those honorably discharged from the military or naval service any
preference conferred by the seventeen hundred and fifty-fourth
section of the Revised Statutes, nor to take from the President any
authority not inconsistent with this act conferred by the seventeen
hundred and fifty-third section of said statutes."
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
Page 177 U. S. 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.
