OpenJurist

141 US 201 Wingard v. United States

141 U.S. 201

11 S.Ct. 959

35 L.Ed. 719

WINGARD
v.
UNITED STATES.

May 25, 1891.

This appeal brings up for review a judgment by the court of claims sustaining a demurrer to a petition filed by the appellant, in which he claimed as due him from the United States for salary as associate justice of the supreme court of the territory of Wawshington the sum of $1,964.55 from December 11, 1885, to August 5, 1886, inclusive, and $1,543.03, from August 24, 1886, to February 27, 1887, inclusive; in all, $3,507.58.

The petition shows that on the 27th day of February, 1883, appellant was duly appointed, by and with the advice and consent of the senate, and commissioned to be, associate justice of the supreme court of the territory of Washington, for the term of four years from that date, and until his successor should be appointed and qualified, with all the powers, privileges, and emoluments appertaining to that office; that he took the oath of office May 11, 1883, and entered upon, executed, and fulfilled the duties of such office; that he was at all times, from and after May 11, 1883, until February 27, 1887, ready and willing to perform those duties; that on the 3d of December, 1885, President Cleveland transmitted to him a communication which declared that he was thereby 'suspended from the office of associate justice of the supreme court of the territory of Washington, in accordance with the terms of section 1768, Revised Statutes of the United States, and subject to all provisions of law applicable thereto;' that on the day last named, the president issued to William G. Langford a document reciting the suspension of the appellant from his office in 'virtue of the authority conferred upon the president by section 1768 of the Revised Statutes of the United States,' and the designation of said Langford 'to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all the provisions of law applicable thereto;' that, on the 11th day of August, 1886, the president sent to the appellant and to Langford, respectively, communications similar to those of December 3, 1885, the one to appellant being a second order of suspension by the president under section 1768 of the Revised Statutes, and the one to Langford showing his designation to perform the duties of the office in the mean time, that Langford was commissioned January 29, 1887, as associate justice of the supreme court of the territory of Washington, for the term of four years from that date, and until his successor was appointed and qualified, subject to the conditions prescribed by law, the commission showing that he had been nominated and appointed to that position by and with the consent of the senate; and that Langford performed the duties of the office from December 11, 1885, to August 5, 1886, and from August 24, 1886, to February 27, 1887, under and by virtue of said several written appointments issued to him.

Roger S. Green and Chas. H. Armes, for appellant.

Sol. Gen. Taft, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

1

Substantially the same questions are presented in this case that have been determined in McAllister v. U. S., 11 Sup. Ct. Rep. 949, (just decided.) Upon the authority of that case, and for the reasons stated in the opinion, the judgment is affirmed.

2

FIELD, J., (dissenting.) I dissent from the judgment of the court in this case on the grounds stated in my dissenting opinion in McAllister v. U. S., 11 Sup. Ct. Rep. 949. I may also add to those grounds the fact that, by the laws of the United States applicable to all the territories, it is provided that for each territory there shall be appointed a governor, a secretary, a chief justice, and two associate justices of its supreme court, an attorney, and a marhal , and that their terms shall be four years, and until their successors are appointed and qualified, with this difference: that it is declared with reference to all the officers, except the justices of the supreme court, that they shall hold their offices for that term, unless sooner removed by the president; but that qualification is not added to the term of the justices. Rev. St. §§ 1841, 1843, 1864, 1875-1877. It is also to be observed that the acts of congress organizing the different territories of the United States, and providing for judicial tribunals therein, from the foundation of the government down to the present time, with three exceptions, have fixed the term of the judicial officers of the territories at definite period absolutely, without any conditions, or simply with the condition 'upon good behavior.' In two of these exceptions, where the words 'unless sooner removed' are added, the power of removal is not vested in the president, but left to be exercised under the general law of the country applicable to such officers; that is, by impeachment, or by the joint action of the president and congress, after full opportunity is given to the accused of being heard upon the grounds of complaint. In the third exception the words added are, 'unless sooner removed by the president with the consent of the senate of the United States,' which implies a previous consideration by the senate of the grounds of removal, and this would usually be accompanied with notice to the accused, and an opportunity afforded to him of being heard thereon. See note below. From this statement it is apparent that the general legislation of congress has been against making the tenure of the

3

Mississippi: 'During good behavior.' Act 7th April, 1798, (1 St. 550, § 3;) Act 27th March, 1804, (2 St. 301, § 2;) Act 2d March, 1810, (2 St. 564, § 2.) South of Ohio: 'During good behavior.' Act 26th May, 1790, (1 St. 123, § 1.) Indiana: 'During good behavior.' Act 7th May, 1800, (2 St. 59, § 3.) Orleans: 'Four years,' absolute, Act 26th March, 1804, (2 St. 284, § 5.) Louisiana, (district:) 'During good behavior.' Act 26th March, 1804, (2 St. 287, § 12.) Michigan: 'During good behavior.' Act 11th Jan., 1805, (2 St. 309, § 3;) Act 30th Jan., 1823, (3 St. 722, § 1.) Illinois: 'During good behavior.' Act 3d Feb., 1809, (2 St. 515, § 3.) Missouri: Four years, 'unless sooner removed.' Act 4th June, 1812, (2 St. 746, § 10;) Act 27th Jan. 1814, (3 St. 95, § 1.) Alabama: 'During good behavior.' Act 3d March, 1817, (3 St. 372, §§ 2, 3.) Arkansas: 'Four years, unless sooner removed.' Act 2d March, 1819, (3 St. 495, § 7.) Florida, (judges not appointed by the president;) Act 30th March, 1822, (3 St. 656, § 6;) Act 26th May, 1824, (4 St. 45, § 1;) Act 21st Jan., 1829, (4 St. 333, § 4.) Wisconsin: 'During good behavior.' Act 20th April, 1836, (5 St. 13, § 9.) Iowa: 'Four years,' absolute. Act 12th, June, 1838, (5 St. 237, 238, § 9.) Oregon: 'Four years,' absolute. Act 14th Aug., 1848, (9 St. 326, § 9.) Minnesota: 'Four years,' absolute. Act 3d March, 1849, (9 St. 406, § 9.) Utah: 'Four years,' absolute. Act 9th Sept., 1850, (9 St. 455, § 9;) Act 25th June, 1888, (25 St. 204, § 2.) New Mexico: 'Four years,' absolute. Act 9th Sept., 1850, (9 St. 449, § 10.) Washington: 'Four years,' absolute. Act 2d March, 1853, (10 St. 175, § 9;) Act 4th July, 1884, (23 St. 102, § 10.) judicial office in courts of record of the territories subject to the will of the president. The last exception is the only one in which any authority in that respect could be exercised by him, and that is to be with the conjoint action of the senate.

4

I am authorized to say that Justices GRAY and BROWN agree with me in this dissent.

5

NOTE. The following list exhibits the terms of the judges and the organic acts for all the territories: North-West of Ohio: 'During good behavior.' Ordinance of 1789, (1 St. 51, note.)

6

Nebraska: 'Four years,' absolute. Act 30th May, 1854, (10 St. 280, § 9.) Kansas: 'Four years,' absolute. Act 30th May, 1854, (10 St. 286, § 27.) Colorado: 'Four years,' absolute. Act 28th Feb., 1861, (12 St. 174, § 9.) Nevada: 'Four years,' absolute. Act 2d March, 1861, (12 St. 212, § 9;) Act 2d March, 1863, (12 St. 700, § 3.) Dakota: 'Four years,' absolute. Act 2d March, 1861, (12 St. 241, § 9;) Act 4th July, 1884, (23 St. 101, § 2;) Act 9th Aug., 1888, (25 St. 398, § 2.) Arizona: 'Four years,' absolute. Act 24th Feb., 1863, (12 St. 665, § 2.) Idaho: 'Four years,' absolute. Act 3d March, 1863, (12 St. 811, § 9.) Montana: 'Four years,' absolute. Act 26th May, 1864, (13 St. 88, § 9;) Act 10th July, 1886, (24 St. 138, § 1.) Wyoming: 'Four years, unless sooner removed by the president with the consent of the senate of the United States.' Act 25th July, 1868, (15 St. 178, § 9.) Alaska: 'Four years,' absolute.