The provisions of the Civil Service Act of January 16, 1883, are
broad and comprehensive; under it, the Executive order of May 16,
1896, Rule III, and the order and list of the Secretary of the
Interior of June 9 and September 26, 1896, based thereon,
stenographers receiving the specified salaries employed in offices
of surveyors-general were brought within the protection of the law,
and can only be removed -- at least by a subordinate officer of the
Department -- for just cause and upon written charges on notice
with opportunity to defend, and until removed in accordance with
the law and rules thereunder, and so long as he remains ready and
willing to discharge the duties of his place, he cannot be deprived
of the compensation legally belonging to one entitled to hold the
position notwithstanding the surveyor general in whose office he is
employed attempts to discharge him and excludes him from the
office.
The facts are stated in the opinion.
Page 201 U. S. 392
MR. JUSTICE DAY delivered the opinion of the Court.
The appellee brought suit in the Court of Claims to recover upon
an alleged claim for compensation at the rate of $1,100 per annum,
from November 1, 1897, to July 1, 1902, and averred that he was a
clerk in the office of the United States
Page 201 U. S. 393
surveyor general in Boise, Idaho, in the classified civil
service, from which employment, on said first-mentioned date, he
was suspended without fault of his own or just cause. He stated his
readiness to discharge the duties of the office, and set forth in
detail what he claimed amounted to a wrongful suspension therefrom
by the United States surveyor general of the State of Idaho. The
finding of facts is quite voluminous, and it is unnecessary to set
it all out in detail. The facts pertinent to the decision of this
case may be summarized as follows: several years prior to May 6,
1896, claimant was employed as a clerk, stenographer, and
typewriter in the office of the surveyor general of the United
States for the State of Idaho at a salary of $1,100 per annum. On
that date, the President of the United States made and promulgated
an order relating to the civil service, which provided, among other
things:
"
Rule III"
"1. All that part of the executive civil service of the United
States which has been, or may hereafter be, classified under the
civil service act, shall be arranged as follows: the Departmental
Service. . . ."
"2. The Departmental Service shall include officers and
employees as follows:"
"
* * * *"
"(b) All executive officers and employees outside of the
District of Columbia not covered in (a), of whatever designation,
whether compensated by fixed salary or otherwise --"
"Who are serving in a clerical capacity, or whose duties are in
whole or in part of a clerical nature."
On June 9, 1896, the Secretary of the Interior issued the
following order:
"
Civil Service Classification of Officers and
Employees"
"Department of the Interior"
"Washington, June 9, 1896"
"By direction of the President of the United States, and in
accordance with the third clause of section 6 of the act
entitled
Page 201 U. S. 394
'An Act to Regulate and Improve the Civil Service of the United
States,' approved January 16, 1883:"
"It is ordered, That the officers and employees in or under this
Department included within the provisions of the civil service law
and rules be, and they are hereby, arranged in the following
classes:"
"Class E, all persons receiving an annual salary of $1,000 or
more, or a compensation at the rate of $1,000 or more, but less
than $1,200 per annum. . . ."
On September 22, 1896, the Acting Secretary of the Interior
communicated to the Civil Service Commission the names of the
incumbents, with their legal residences and the dates of
appointment, added to the classified departmental service by the
extension of May 6, 1896, also enclosing a similar list of such
positions and employees in the offices of the surveyor general,
which contained the name of the appellee, with his title,
"stenographer and typewriter," date of appointment, salary,
residence, and class. The appellee was verbally informed by the
surveyor general of his selection, and, after executing the
prescribed oath, entered upon his duties. At the time of his
employment, the custom was to allow the surveyor general to select
the clerical force of his office. Appellee was continuously
employed as such stenographer and typewriter until November 1,
1897, on which date he was suspended from service by the surveyor
general. No charges in writing or orally were preferred against
him, the surveyor general basing the suspension on the ground that
appellee's services were not needed on account of lack of work to
be done. On November 15, 1897, the surveyor general reported to the
Commissioner of the General Land Office an accumulation of mineral
work, the employment of certain clerks by himself, with the request
for additional clerical force. On November 22, 1897, the
Commissioner of the General Land Office advised the surveyor
general that the ground taken that certain persons were dismissed
because there was no further occasion for their services, and the
appointment of other persons in their places, could not
Page 201 U. S. 395
be sustained. On February 24, 1898, the Commissioner of the
General Land Office, in reply to a letter from the surveyor general
under date of February 21, 1898, in which he had asked authority to
employ two additional draftsmen and four transcribing clerks, to be
paid from the funds reported as available, said:
"No authority can be given you to employ the additional force
desired, except as provided under the civil service rules. I am
constrained to say that, but for your summary action in dispensing
with so many of your employees, in violation of the law governing
such matters, the difficulties in dispatching the work of your
office would not have prevailed to such an extent."
On May 14, 1898, the Commissioner advised the Civil Service
Commission as follows:
"Referring to my request of the 20th ult., for a certificate of
a list of eligibles for appointment as stenographer and typewriter
at $900, in the office of the surveyor general of Idaho, I have
been informed that an examination was recently held by your
Commission in said state for persons possessing the required
qualifications, and it is urgently requested that as soon as
possible this office may be furnished with a certificate from those
citizens of Idaho who are eligible for the place desired to be
filled under my call of the 20th ult., as the surveyor general
reports that his work is much impeded and embarrassed for the lack
of a competent stenographer."
On June 15, 1898, the president of the Civil Service Commission
addressed a communication to the Secretary of the Interior, in
which he said:
"In this connection, the Commission invites your attention to
the fact that, although Surveyor General Perrault suspended the
above-named employees (Lellman and Wickersham) and three others (D.
J. Cohen, Joseph P. Chinn, and Alice S. Howey) over seven months
ago, on the alleged ground of lack of work (which has been
effectually disproved), these persons still remain, separated from
the service, while others occupy the positions to which they are
properly entitled."
Since November 1, 1897, claimant has not been permitted to
perform the duties of stenographer and typewriter in said office,
although after
Page 201 U. S. 396
said date he stood ready and willing to discharge the duties
thereof, and he has received no compensation from the United States
since October 31, 1897. On November 5, 1897, he protested against
his suspension, and on December 28, 1897, he demanded his salary.
On January 1, 1899, he assumed office as district clerk of Ada
County, Idaho, and served for one year. On April 9, 1898, the
Commissioner of the General Land Office directed the reinstatement
of the clerks whose places had not been permanently filled, among
others naming the appellee, and directed the surveyor general to
prefer formal charges against such persons as he had reported for
inefficiency, etc., and to hand a copy of the charges and a copy of
the order to each of the clerks and give them three days within
which to make a response. In pursuance of this instruction, the
surveyor general, on April 16, 1898, preferred charges against the
appellee, and one the same day reinstated him. On May 10, 1898, the
Commissioner of the General Land Office advised the surveyor
general that the appellee would be reinstated in the service of the
bureau, as his continuance in the surveyor general's office would
not be harmonious and in the best interests of the public service.
On the same day, he was offered a position in Washington at $1,000
per annum, without transportation, which he declined. He was
offered the alternative of accepting a position in the General Land
Office in Washington at a reduced salary, or to await the
occurrence of a vacancy elsewhere, but he has not since been
offered a position elsewhere in the service. On August 8, 1898, the
Commissioner of the General Land Office made appellee's suspension
permanent. The Court of Claims rendered a judgment in favor of the
appellee for the amount of his compensation from the first of
November, 1897, from which date, it was found, he was wrongfully
suspended, until May 10, 1898, when his services in the office of
the surveyor general were discontinued and he was offered a
position in the bureau at Washington, which he declined.
It is the contention of the government that Wickersham was not
an official appointee of the President or the head of
Page 201 U. S. 397
a department, but was merely an appointee of the surveyor
general, without definite employment, and subject to removal at the
will of that officer. The employment of the appellee is alleged to
be no different than the ordinary engagement of master and servant,
and it is urged that the attempted suspension by the surveyor
general was tantamount to dismissal by an employer of one who was
engaged without definite term and subject to dismissal at any
time.
The provisions of the Act of Congress of January 16, 1883 to
regulate and improve the civil service of the United States, 1
Rev.Stat. 392, are broad and comprehensive. By section 6 of the
act, the power is conferred upon the President of the United States
to require the heads of executive departments to classify for the
purposes of the act and the examination therein provided for, and
to include in one or more of said classes, so far as practicable,
subordinate places, clerks, and officers in the public service
pertaining to their respective departments, not before classified
for examination. The order of the President of May 6, 1896, Rule
III, provides that the departmental service classified under the
act should include officers and employees, among others,
"All executive officers and employees outside the District of
Columbia . . . of whatever designation, whether compensated by
fixed salary or otherwise, who are serving in a clerical capacity,
or whose duties are, in whole or in part, of a clerical
nature."
In accordance with the statute, and under the provisions of this
order, the Secretary of the Interior, on June 9, 1896, made an
order classifying the officers and employees of his department,
Class E including persons receiving $1,000 or more salary, or
compensation at the rate of $1,000 or more, but less than $1,200
per annum. On September 26, 1896, under the extension order
referred to and the action of the Secretary of the Interior, the
Acting Secretary of the Interior filed a list of positions and
employees with the Civil Service Commission, which, among others in
the list of employees in the offices of surveyors general,
contained the name of the appellee as a stenographer
Page 201 U. S. 398
and typewriter, the date of his appointment, salary, and
residence, as stated in the findings of fact. By the action recited
on the part of the President and the head of the Department of the
Interior, Wickersham was brought within the protection of the law
and the President's order afforded to persons duly entered in the
classified civil service. While he may not technically have been an
officer of the United States with a fixed term and compensation, he
certainly was within the subordinate places provided for in the
statute, and within the "employees outside the District of
Columbia," covered by the President's order of May 6, 1896. That
order expressly included officers and employees, whether
compensated by a fixed salary or otherwise, serving in a clerical
capacity or whose duties were in whole or in part of a clerical
nature. The Secretary of the Interior certified the name of the
claimant to the Civil Service Commission as an employee in the
office of the surveyor general within the terms of the statute and
the Executive order. He was therefore entitled to the protection of
the President's order of July 27, 1897 (14 Am.Rep.Civ.Serv. Comm.
133):
"No removal shall be made from any position subject to
competitive examination except for just cause and upon written
charges filed with the head of the department or other appointing
officer, and of which the accused shall have full notice and an
opportunity to make defense."
If the contention of the government be correct, and the
attempted suspension by the surveyor general was equivalent to a
dismissal from office, such action would run counter to the
requirements of the Presidential order just quoted. The action of
the surveyor general was not upon written charges, and no notice or
opportunity to make defense was given to the accused, as provided
in that order. The appellee being entitled to the protection of
this order, and to have notice of the charges preferred, and an
opportunity to make defense, the attempted removal, if such it was,
was without legal effect; nor can we find any authority, statutory
or otherwise, authorizing the suspension in the manner undertaken
in this case. The attempted
Page 201 U. S. 399
suspension was held to be without authority by the Commissioner
of the General Land Office, and the surveyor general was directed
to reinstate the claimant and to proceed by regular charges against
him. In the meantime, the record shows that the claimant was ready
and willing to discharge the duties of his position, and had
received no compensation therefor during the time of his wrongful
suspension. Whether he could have been summarily removed or
suspended by the President or other competent authority is not the
question now before the Court, but the question is whether the
employee, during his wrongful suspension by a subordinate officer,
is entitled to the compensation provided by law. We see no reason,
in such an attitude of the case, where the wrongful suspension is
clearly established, and the ability of the incumbent to discharge
the duties of his office affirmatively found, for withholding from
him the compensation given by law to an incumbent of the place. If
this be not so, then a regular and duly qualified employee in the
public service, protected by the statute and the orders of the
President made in pursuance thereof, can be deprived of the benefit
and emolument of his position by a wrongful and illegal suspension
from his duties. We do not think such a contention can be sustained
either by reason or authority. Where an officer is wrongfully
suspended by one having no authority to make such an order, he
ought to be and is entitled to the compensation provided by law
during such suspension. Throop on Public Officers ยง 407;
Emmitt
v. New York, 128 N.Y. 117. This was the view entertained by
the Court of Claims in deciding
Lellmann v. United States,
37 Ct.Cl. 128, on the authority of which the case at bar was
decided by that court. We think the ruling was correct.
The case comes to this: the appellee, by his appointment,
practically made by the Secretary of the Interior in entering his
name in the classified list and designating him for the service
required, was entitled to the privileges and emoluments of his
position until he was legally disqualified by his own action or
that of some duly authorized public authority. The attempted
suspension without authority of law, he remaining ready and willing
to discharge the duties of the place, could not, during the period
of such wrongful suspension, have the effect to deprive him of the
compensation legally belonging to one entitled to hold the
position.
Judgment affirmed.