The power to remove from public office or employment is, in the
absence of any statutory provision to the contrary, an incident of
the power to appoint, and the power to suspend is an incident of
the power of removal. P.
252 U. S.
515.
In § 19, Rev.Stats., which authorizes each "head of a
Department"
Page 252 U. S. 513
to employ clerks, messengers, laborers, etc., and other
employees, "head of a Department" means the Secretary in charge of
a great division of the executive branch who is a member of the
Cabinet, and does not include heads of bureaus or lesser divisions.
P.
252 U. S.
515.
The term "employ" as thus used is the equivalent of appoint.
Id.
The terms "clerks" and "other employees," as used in Rev.Stats.
§ 169, include persons filling positions which require technical
skill, learning, and professional training.
Id.
Whether the incumbent is an officer or an employee is determined
by the manner in which Congress has specifically provided for the
creation of the several positions, their duties, and appointment
thereto. P.
252 U. S.
516.
Although the Office of Public Buildings and Grounds is part of
the bureau of the Chief of Engineers, in the War Department,
appointment of a landscape architect (whose employment is
authorized by general appropriation acts) is not to be made by the
Secretary of War under the general authority of Rev.Stats. § 169,
but by the Chief of Engineers under the specific authority given
him by § 1799 to employ in such office and in and about the public
buildings and grounds under his control such persons as may be
appropriated for from year to year.
Id.
The power to remove such landscape architect is with the Chief
of Engineers as an incident of the power of appointment, and is not
affected by the fact that the appointment, acquiesced in by the
Chief of Engineers, was made without authority by the Secretary. P.
252 U. S.
518.
In the absence of regulations prescribed by the President
through the War Department under Rev.Stats. § 1797, and assuming
the regulations governing the classified Civil Service as applied
to the Engineer Department at large do not affect the Office of
Public Buildings and Grounds, the power of the Chief of Engineers
to remove the landscape architect is to be exercised in the manner
prescribed by the Act of August 24, 1912, c. 389, § 6, 37 Stat.
555, and Civil Service Rule XII. P.
252 U. S.
519.
The landscape architect in the Office of Public Buildings and
Grounds is not an officer, but an employee.
Id.
53 Ct.Clms. 605 affirmed.
The case is stated in the opinion.
Page 252 U. S. 514
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 $2,400 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 efficiency of the service." His
successor was 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. 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 Ops.Atty.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.
First. The Constitution (Art, II, § 2, subd. 2) confers
upon the
Page 252 U. S. 515
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 Congress to vest the
appointment of inferior officers either in the President alone, in
the courts of law, or in the heads of departments (6 Ops.Atty.Gen.
1). The power to remove is, in the absence of statutory provision
to the contrary, an incident of the power to appoint.
Ex parte
Hennen, 13 Pet. 230,
38 U. S.
259-260;
Blake v. United States, 103 U.
S. 227,
103 U. S. 231;
United States v. Allred, 155 U. S. 591,
155 U. S. 594;
Keim v. United States, 177 U. S. 290,
177 U. S.
293-294;
Reagan v. United States, 182 U.
S. 419,
182 U. S. 426;
Shurtleff v. United States, 189 U.
S. 311,
189 U. S. 316.
And the power of suspension is an incident of the power of
removal.
Section 169 of the Revised Statutes 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 employees, and at such rates of
compensation, respectively, as may be appropriated for by Congress
from year to year."
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 bureaus or lesser
divisions.
United States v. Germaine, 99 U. S.
508,
99 U. S. 510.
Persons employed in a bureau or division of a department are as
much employees in the department within the meaning of Section 169
of the Revised Statutes as clerks or messengers rendering service
under the immediate supervision of the Secretary.
Manning's
Case, 13 Wall. 578,
80 U. S. 580;
United States v. Ashfield, 91 U. S.
317,
91 U. S. 319.
The term "employ" is used as the equivalent of appoint. 21
Ops.Atty.Gen. 355, 356. The term "clerks and other employees," as
there
Page 252 U. S. 516
used, is sufficiently broad to include persons filling positions
which require technical skill, learning, and professional training.
29 Ops.Atty.Gen. 116, 123; 21 Ops.Atty.Gen. 363, 364; 20
Ops.Atty.Gen. 728. The distinction between officer and employee 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 employee is determined by the manner in which Congress has
specifically provided for the creation of the several positions,
their duties, and appointment thereto. 15 Ops.Atty.Gen. 3; 17
Ops.Atty.Gen. 532; 26 Ops.Atty.Gen. 627; 29 Ops.Atty.Gen. 116;
United States v.
Hartwell, 6 Wall. 385;
United States v.
Moore, 95 U. S. 760,
95 U. S. 762;
United States v. Perkins, 116 U.
S. 483;
United States v. Mouat, 124 U.
S. 303;
United States v. Hendee, 124 U.
S. 309;
United States v. Smith, 124 U.
S. 525;
Auffmordt v. Hedden, 137 U.
S. 310;
United States v. Schlierholz, 137 F.
616;
Martin v. United States, 168 F. 198.
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. 41, 2 Stat. 175, the
offices of Commissioners 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 § 1797 of the Revised
Statutes, as amended by Act of April 28, 1902, c. 594, 32 Stat.
152, it is declared that the Chief of Engineers has
"charge of the public buildings and grounds in the District of
Columbia, under such regulations
Page 252 U. S. 517
as may be prescribed by the President through the War
Department."
And § 1812 requires the Chief of Engineers, as Superintendent of
Public Buildings and Grounds, to submit annual reports to the
Secretary of War to accompany the annual message of the President
to Congress.
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.
Prior to July 1, 1910, similar appropriation 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 § 169, have the power to appoint
the landscape architect as an employee in his department in the
absence of other provision dealing with
Page 252 U. S. 518
the subject. 21 Ops.Atty.Gen. 355. But § 1799 of the Revised
Statutes provides 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."
This more specific provision excludes positions in the office of
public buildings and grounds from the operation of the general
provision of § 169 conferring the power of appointment upon the
heads of departments.
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.
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 employees in his office conferred, by implication,
in § 1799 of the Revised Statutes. The defect in Burnap's original
appointment was cured by the acquiescence of the Chief of Engineers
throughout 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.
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
Page 252 U. S. 519
discharge was by direct command of the Chief of Engineers. Both
the suspension and the discharge purported to be ordered pursuant
to Paragraph 13 of § 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. [
Footnote 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 employees,
and that the landscape architect was an officer, not an employee.
As has been shown, Burnap was an employee. But the main contention
is wholly immaterial. If Paragraph 13 does 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 be
the provisions of the Act of August 24, 1912, c. 389, § 6, 37 Stat.
555, [
Footnote 2] and Civil
Service Rule XII. For no regulations
Page 252 U. S. 520
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 contended that
the procedure adopted in suspending 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 employees in his bureau. Nor need we consider
the contention of the government that the action taken was
tantamount to a removal by the Secretary, because the discharge was
ordered by the Chief of Engineers after consideration 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 General's suggestions.
The judgment of the Court of Claims is
Affirmed.
[
Footnote 1]
Paragraph 13:
"Discharge for Cause. -- Discharge for cause of any regularly
appointed classified employee will be subject to the provisions of
Civil Service Rule XII, and cannot be made without the approval of
the Chief of Engineers. An employee may be suspended without pay by
the officer in charge, who should at once furnish the employee 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."
[
Footnote 2]
Chapter 389, § 6:
"No person in the classified civil service of the United States
shall be removed therefrom except for such cause as will promote
the efficiency of said service and for reasons given in writing,
and the person whose removal is sought shall have notice of the
same and of any charges preferred against him, and be furnished
with a copy thereof, and also be allowed a reasonable time for
personally answering the same in writing, and affidavits in support
thereof, etc."