In 1896, commissioners appointed by judges of the United States
Court in the Indian Territory were inferior officers, not holding
their offices for life, or by any fixed tenure, but subject to
removal by the appointing power.
Commissioners appointed by that court prior to the Act of March
1, 1895, were entitled to reappointment under that act, but were
removable at pleasure unless at that date, or at the date of
removal, causes for removal were prescribed by law.
As no causes for removal had been prescribed by law at the date
of the removal of claimant in 1896, he was subject to removal by
the judge of his district, and the action of that judge in removing
him was not open to review in an action for salary.
Appellant filed his petition in the Court of Claims October 13,
1897, and an amended petition October 27, 1899, seeking to recover
salary as United States commissioner in the Indian Territory at the
rate of $1,500 per annum, from February 1, 1896, to September 30,
1899, aggregating $5,375.
The findings of fact and conclusion of law were as follows:
"I. The claimant was, on the 25th day of April, 1893, appointed
by the United States Court for the Indian Territory United States
commissioner within said territory, under the provisions of section
39 of an Act of Congress approved May 2, 1890, chapter 182 (1st
Supp.Rev.Stat. 737), and upon the 1st day of March, 1895, the
claimant was one of the present commissioners, then holding office
under an existing appointment. On April 17, 1895, the following
order was entered of record in the United States Court in the
Indian Territory, Southern District:"
" It appearing from the records of this Court that the said
William R. Reagan was a duly appointed, qualified, and acting
Commissioner for the United States Court for the Third Judicial
Division of the Indian Territory, located at Chickasha, on
Page 182 U. S. 420
the 1st day of March, 1895, it is hereby ordered that, in
accordance with the Act of Congress approved March 1, 1895, the
said William R. Reagan be, and he is hereby, continued in office,
and the bond hereinbefore recited be, and the same is, in all
things approved and confirmed."
"C. B. Kilgore,
Judge"
"II. He continuously performed the duties and received the
salary of said office until the 31st day of January in the year
1896, when the following letter was entered upon the records of the
United States Court in the Indian Territory, in the Southern
District, by the Hon. Constantine B. Kilgore, judge of said
court:"
"In Chambers"
"Ardmore, Indian Territory,
January 31st, 1896"
" Hon. William R. Reagan, United States Commissioner for the
Fourth Commissioner's District in and for the Southern District of
the Indian Territory."
"
Sir: I feel it my duty to declare the office of
commissioner in that district vacant, and to notify you that you
are no longer United States commissioner for that district, and
your successor will be named at once."
" There are many reasons which I could assign for my action in
this behalf, but I will only suggest one now -- that is, your age
and the infirmities incident thereto render you, in my judgment, in
many respects unfit for the office."
"Very respectfully, your obedient servant,"
"C. B. Kilgore"
"
Judge U.S. Dist. Court, S. Dist."
"The letter was not sent to the claimant or served upon him. No
other statement of cause was made. The claimant was given no notice
of any charge against him. No hearing was allowed the claimant and
no opportunity to submit proof in his defense."
"III. The claimant protested that said letter was insufficient
to effect his removal, and duly served such protest upon the Hon.
Constantine B. Kilgore, judge of said court."
"IV. On February 10, 1896, one John R. Williams, who had
Page 182 U. S. 421
been designated by said judge as United States commissioner in
the claimant's place, came to claimant's office with two armed
deputy marshals, and, presenting his order of appointment, demanded
possession of the dockets, books, and papers belonging to
claimant's office as United States commissioner."
"V. The order of appointment of said Williams is as
follows:"
"In Chambers"
"Ardmore, Indian Territory,
January 31st, 1896."
" John R. Williams, a resident of Ryan, Southern District of
Indian Territory, is hereby appointed United States commissioner in
and for the Fourth District of the Southern District of the Indian
Territory."
" Said appointment to take effect at once."
" It is further ordered that said commissioner shall reside at
Ryan, and that he shall hold court at Ryan and at the Town of
Duncan in said district until further ordered, the time to be
divided so as to dispose of the business at both points, which time
shall be determined upon hereafter."
"C. B. Kilgore,"
"
Judge U.S. Ct., So. Dist."
"VI. The claimant protested and refused to recognize said
Williams as his successor in said office, excepting so far as he
was compelled thereto by the exercise of superior force on the part
of the deputy marshals aforesaid and said Williams. Thereupon the
claimant and said Williams joined in the following instrument of
writing:"
" Duncan, Indian Territory"
"
Southern District"
" This instrument of writing witnesseth:"
" That whereas C. B. Kilgore, judge of the United States Court
for the Southern District of the Indian Territory, on the 31st day
of January, A.D. 1896, made, and caused to be entered upon the
docket of his court at Ardmore, Indian Territory, an order
declaring my office of United States commissioner for the Ryan
division of said district vacant, and at the same time appointing
John R. Williams to be my successor in said office,
Page 182 U. S. 422
and the said Reagan having appealed to the courts of the United
States from said order, on the ground that said order is contrary
to the law:"
" Now therefore it is agreed by and between the parties hereto
that said Reagan will turn over and surrender the dockets, books,
and papers belonging to said office under protest, and that said
Williams receives the same with the understanding that said Reagan
yields no rights by so doing that he would otherwise have."
" Witness our hands this 10th day of February, A.D. 1896."
"Jno. R. Williams"
"Wm. R. Reagan"
"VII. The claimant received a salary of $1,500 per annum up to
the 3d day of February, 1896, but since that date has not been paid
said salary or any part thereof."
"VIII. Claimant took no other or further action to assert his
claim to said office, or to obtain a reversal of the action of
Judge Kilgore until the institution of this proceeding."
"IX. From the 3d day of February, 1896, until the 7th day of
October, 1897, John R. Williams, who was appointed by Judge Kilgore
to said office in claimant's stead, exercised said office and was
paid the salary thereof. On said date, one Horace M. Wolverton was
appointed as the successor of said John R. Williams by Hon. Hosea
Townsend, United States Judge for said district, and since that
time has exercised said office and has been paid the salary
thereof."
"X. From the 3d day of February, 1896, until the commencement of
this action, the disbursing clerk of the Department of Justice paid
to the persons who succeeded claimant to said office the salary of
said office, in the absence of any notice on the part of claimant
that he claimed to be lawfully entitled to said office and the
salary thereof, or any claim or demand on the part of claimant for
the payment to him of such salary for said period of time or any
part thereof."
"
Conclusion of Law"
"Upon the foregoing findings of fact, the court decide, as a
conclusion of law, that the petition be dismissed. "
Page 182 U. S. 423
Judgment was thereupon rendered dismissing the petition, and the
case was brought to this Court by appeal. The opinion below is
reported 35 Ct.Cl. 90.
MR. CHIEF JUSTICE FILLER delivered the opinion of the Court.
Section 39 of the Act of May 2, 1890, 26 Stat. 98, c. 182,
provided:
"That the United States Court in the Indian Territory shall have
all the powers of the United States circuit courts or circuit court
judges to appoint commissioners within said Indian Territory, who
shall be learned in the law, and shall be known as United States
commissioners, but not exceeding three commissioners shall be
appointed for any one division, and such commissioners, when
appointed, shall have, within the district to be designated in the
order appointing them, all the powers of commissioners of circuit
courts of the United States."
"They shall be
ex officio notaries public, and shall
have power to solemnize marriages."
"The provisions of chapter ninety-one of the said laws of
Arkansas regulating the jurisdiction and procedure before justices
of the peace are hereby extended over the Indian Territory, and
said commissioners shall exercise all the powers conferred by the
laws of Arkansas upon justices of the peace within their districts,
but they shall have no jurisdiction to try any cause where the
value of the thing or the amount in controversy exceeds one hundred
dollars."
The Act of March 1, 1895, 28 Stat. 695, c. 145, provided for
additional judges of the court, and by section 4:
"That each judge of said court shall have the powers conferred
by law upon the United States circuit courts to appoint
commissioners within the district in which he presides, who at the
time of their appointments, shall be duly enrolled attorneys of
some court of record of the United States or of some state,
Page 182 U. S. 424
and shall be competent and of good standing, and shall be known
as United States commissioners; but not exceeding six commissioners
shall be appointed for any district hereinbefore constituted:"
"
Provided, That the present commissioners shall be
included in that number and shall hold office under their existing
appointments, subject to removal by the judge of the district where
said commissioners reside, for causes prescribed by law. The judge
for each district may fix the place where or the time when each
commissioner shall hold his regular terms of court."
"The order appointing such commissioners shall be in writing and
shall be spread upon the records of one of the courts of the
district for which they are appointed, and such order shall
designate, by metes and bounds, the portion of the district for
which they are appointed. They shall have all the powers of
commissioners of the circuit courts of the United States."
"They shall be
ex officio notaries public and
ex
officio justices of the peace within and for the portion of
the district for which they are appointed, and shall have the power
as such to solemnize marriages."
Appellant was appointed a commissioner April 25, 1893, and was
such on March 1, 1895. In view of the proviso, he was continued in
office until January 31, 1896, when he was removed by the judge of
the district where he resided, and another person appointed.
He now contends that the removal was void because the cause
assigned for the action of the judge was not a "cause prescribed by
law" and because he was given no notice of any charge against him
and no hearing, contrary to the statute.
The commissioners appointed by the judges of the United States
Court in the Indian Territory are inferior officers, not holding
their offices for life or by any fixed tenure, and they fall within
the settled rule that the power of removal is incident to the power
of appointment.
Ex Parte
Hennen, 13 Pet. 230,
38 U. S. 258;
Parsons v. United States, 167 U.
S. 324. But it is assumed that, because of the language
of the proviso, commissioners appointed by the court prior to March
1, 1895, formed an
Page 182 U. S. 425
exceptional class from commissioners appointed by the judges of
that court after that date, and hold office until they are removed
for causes prescribed by existing law, or until Congress passes a
law defining such causes. The latter view may be rejected at once,
for the words "causes prescribed by law" manifestly relate to
causes prescribed when the act was approved, or at least when the
removal was made. Not only is there nothing here to give them any
other meaning, but it cannot be presumed that Congress intended to
forbid the exercise by the judges of their power in the matter of
these appointments in the instance of these particular
commissioners, or to provide that they should hold office during
life, or until Congress should specify causes subjecting them to
removal, while all other commissioners were removable at the will
of the power appointing them.
The proviso was enacted apparently out of abundant caution lest
the legislation in respect of the United States Court in the Indian
Territory might operate, in itself, to turn the then commissioners
out of office, and if Congress had intended in addition that they
should hold office free from the rule applicable to others, we
think that the intention would have been plainly expressed.
The inquiry is therefore whether there were any causes of
removal prescribed by law March 1, 1895, or at the time of the
removal. If there were, then the rule would apply that, where
causes of removal are specified by Constitution or statute, as also
where the term of office is for a fixed period, notice and hearing
are essential. If there were not, the appointing power could remove
at pleasure or for such cause as it deemed sufficient.
The suggestion that the proviso refers to such causes as courts
might recognize as just will not do, for "prescribed by law" is
prescribed by legislative act, and removal for cause, when causes
are not defined nor removal for cause provided for, is a matter of
discretion, and not reviewable.
It does not appear that any causes for removal of these court
officers were ever affirmatively specified by Congress, but it is
said that Congress had prescribed such causes by the adoption
Page 182 U. S. 426
in the Indian Territory of certain laws of Arkansas. By section
31 of the Act of May 2, 1890, some of those laws were put in force
in the Indian Territory, and by section 39, the commissioners were
authorized to exercise all the powers conferred by the laws of
Arkansas on justices of the peace within their districts, and the
provisions of chapter 91 of those laws regulating the jurisdiction
of and procedure before justices of the peace were extended to that
territory. By the Act of March 1, 1895, these were reenacted, and
chapters 45 and 46 of Mansfield's Digest, treating of criminal law
and criminal procedure, were also put in force there.
The argument is that the effect of these provisions was to put
the commissioners in the place of justices of the peace in
Arkansas, and that consequently the causes prescribed by law for
the removal of justices of the peace must be taken as prescribed by
law as causes for the removal of commissioners.
In our opinion, this conclusion does not follow. In order to
clothe the commissioners with the powers pertaining to justices of
the peace, this was conveniently accomplished by reference, but
that did not convert these officers of the United States Court in
the Indian Territory into justices of the peace or change the
relations between them and the judges of that court. Justices of
the peace in Arkansas, by state constitution and laws, hold office
for two years, and cannot be removed except for cause and on notice
and hearing. The commissioners hold office neither for life nor for
any specified time, and are within the rule which treats the power
of removal as incident to the power of appointment, unless
otherwise provided. By chapters 45 and 46, justices of the peace on
conviction of the offenses enumerated are removable from office,
but these necessarily do not include all causes which might render
the removal of commissioners necessary or advisable. Congress did
not provide for the removal of commissioners for the causes for
which justices of the peace might be removed, and if this were to
be ruled otherwise by construction, the effect would be to hold the
commissioners in office for life unless some of those specially
enumerated causes became applicable to them.
Page 182 U. S. 427
We agree with the Court of Claims that this would be a most
unreasonable construction, and would restrict the power of removal
in a manner which there is nothing in the case to indicate could
have been contemplated by Congress.
If causes of removal had been prescribed by law before the
removal of appellant, that would have presented a different
question, but as there were then none such, the proviso did not
operate to take him out of the rule expounded in
Ex Parte
Hennen, and the mere fact that in that particular this part of
the proviso was inoperative as to him did not change the
result.
Judgment affirmed.
