McAllister v. United States

delivered the opinion of the court.

Ward McAllister, Jr., was appointed by President Arthur, by and with the advice and consent of the Senate, to be District Judge for the District, of Alaska. His commission, of date July 5th, 1881, authorized and empowered him to execute and fulfil the duties of that office according to the Constitution and laws of the United States, and to have and to hold the said office, with all the powers, privileges and emoluments to the same of right appertaining “ for the term of four years from the day of the date hereof, and- until his successor shall be appointed and qualified, subject to the conditions prescribed by law.” He took the required oath of office on the 23d day of August, 1881..

On the 21st day of July, 1885, President Cleveland, in writing, “ by virtue of the authority conferred upon the President of the United States by section 1768 of the Devised Statutes of the United States,” suspended him from office until the end of the next session of the Senate, and designated “ Edward J. Dawne of Oregon, to perform the duties of such suspended officer in the meantime, he being a suitable person therefor, subject to all provisions of law applicable thereto.” Dawne took the prescribed oath'of office on the 20th of August, 1885. Subsequently, December 3d, 188t>, the President, by virtue of

Judge McAllister, without resistance, vacated the office on the 2Sth of August, 1885, and received, the salary .up to and including that date; after which he did not perform any of the duties or exercise any of the functions of the position. The salary appropriated for the period between August 29, 1885, and March 12, 1886, inclusive, has not been paid to any one and remains- in the Treasury'to the credit of the proper appropriation. Judge Dawson' has received the salary since the latter date, except for the.. period between August 6, .1886, and September- 2, 1886, the salary for which has not been paid to any one, .but remains in .the Treasury.

The appellant has not instituted proceedings of any kind other than this action to determine his right or title to the office in- question since August 28, 1885, on which day he vacated .his position.

He claims by his petition in this case, “as due him for said salaiy from the 29th of August, 1885, to the 6th day pf September, 1886, the sum of three thousand and seventy dollars.”

Counsel for the. appellant state his contention to be (1) that he was entitled to hold the office of District Judge for the District of Alaska for four years from July 5, 1884, the date of his commission, and until his successor was appointed and q" alified ;• or, (2), in the' alternative, that his' right to perform-the duties and receive the emoluments of the office continued until September 3, 1886, when Judge Dawson qualified, upon which basis the -amount due him would be $3041.09; or, (3), that he is, in any event, entitled to the salary from the first day after the end of the session of the Senate, August 7, 1886,

Although the determination of the second of these propositions may, to some extent, involve a decision of the first one, it is proper to remark that no question is distinctly raised by the petition as to the right of the appellant to hold the District Judgeship for Alaska for the full term designated in his commission, namely, four years aná until his successor was appointed and qualified. He sues only for the salary from the 29th of August, 1885, the day succeeding his suspension from office, to the 6th day of September, 1886, a few days after Dawson took the oath of office.

The government disputes the right of the appellant to receive any part of. the sum for which he brings suit. Its defence rests upon § 1768 of the Kevised Statutes. That section and the one preceding it are as follows:

“Sec. 1767. Every person holding any civil office to which he has been or may hereafter be appointed by and with the advice and consent of the Senate, and who shall have, become duly qualified to act therein, shall be entitled to hold such office during the term for which' he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and con-, sent, of a successor in his place, except as herein otherwise provided.

“ Sec. 1768. During any recess of the Senate the President is authorized, in his discretion,- to suspend any civil officer appointed by and with the advice and consent of the Senate, except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed, in his discretion, by the designation of another, to perform the duties of such suspended officer in the meantime; and' the person so designated shall take the oath and give the bond required by law to be taken and given by the suspended officer, and shall, during the time he performs the duties of such officer, be entitled to the salary and emoluments of the office, no part of which shall belong to the officer suspended. The President shall, within thirty days

after the commencement of each session of the Senate, except for any office which in his opinion ought not to be filled, nominate persons to fill all vacancies in office which existed at the meeting of the Senate, whether temporarily filled or not, and also in the place of all officers suspended; and if the Senate during such session shall refuse to advise and consent to an appointment in-the place of'any suspended officer, then, and not otherwise, the President shall nominate another person as soon as practicable to the same session of the Senate for the office.” '

These sections were brought forward from the act of March ,2, 1867, regulating the tenure of certain civil offices, and the act - of April 5, 1869, amendatory thereof. 14 Stat. 430 , c. 154; 16 Stat. 6 , c. 10. By an act of Congress approved March 3, 1887, those sections, as well as sections 1769, 1770, 1771 and 1772, relating to the same subject, were repealed, subject -to' the condition that the repeal should not affect any officer theretofore suspended, or any designation, nomination or appointment, previously made tinder or by virtue of the repealed sections. 24 Stat. 500 , c. 353. As the appointment and suspension of Judge McAllister occurred prior to the passage of the act of 1887, the present case is not controlled by its provisions, but depends upon the effect to be given to the séctions of ’the Revised Statutes above quoted, interpreted in the light of the act establishing the court of which the appellant -was made judge in the year 1884. What may be the powers of the President over territorial judges, now that section 1768 is repealed, is a question we need not now discuss.

By an act passed - May 17, 1884, 23 Stat. 24 , c. 53, the territory ceded to the United States by Russia, and known as Alaska, -was constituted a civil and judicial district, with a governor, attorney, judge, marshal,, clerk and commissioners, to be appointed by the President, by and with the advice- and consent of the Senate, and to hold their respective offices -for the term of four years, and until their successors were appointed and qualified. §§ 1, 9. The third section relates to the court established by the act, and is in these words: “That there shall be, and hereby is, established a District Court for

In view, of these and other provisions of that- act, it is clear that the District Court for Alaska was invested with the powers of a District Court and a Circuit Court of the United States, as well as with general jurisdiction to enforce in Alaska the laws of Oregon, so far as they were applicable and were not inconsistent with the act and the Constitution and laws of the United States.

But is the court,, thus established for Alaska, one of the “ Courts of the United States ” within the meaning of section 1768 of the Devised Statutes? If it be, then the President

An affirmative answer to the question just stated could not well be given upon the theory that a Territorial court is one of those mentioned in article three of. the Constitution, declaring that the judicial power of -the United States shall be vested- in one Supreme Court, and in such inferior courts as Congress may from time to time establish, the judges of which hold their offices -during good behavior, receiving, at stated times, for their services, a compensation that cannot be diminished during their continuance in office, and are removable only by impeachment. We say this because numerous decisions of this court are inconsistent with that theory. To these decisions we will now advert.

The leading case upon the subject is American Insurance Company v. Canter, 1 Pet. 511 , 546, decided in 1828. The question there was as to the validity of a decree passed by a court, consisting of a notary and five jurors, created by a statute of the Territorial legislature of Florida, whose powers, under certain acts of Congress, extended to all rightful subjects of legislation, subject to the restriction that their laws should not be inconsistent with the laws and Constitution of the United States. On one side it was contended, that, under those acts, jurisdiction was vested exclusively in the Superior Courts of the Territory created by the acts of Congress establishing a Territorial government in Florida. Chief Justice Marshall,' speaking for the court, said: “ It has been contended, that by the Constitution the judicial power of the United States extends to all cases of admiralty'and maritime jurisdiction, and that ’the whole of this judicial power must be vested in ‘ one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.’ - Hence it has been.

Equally emphatic is the decision in Benner v. Porter, 9 How. 235 , 242, 243. The court, speaking by Mr. Justice Nelson, said that the distinction between the Federal and state jurisdictions, under the Constitution of the United States, has no foundation in these Territorial governments; that “they are legislative governments, and their courts legislative courts, Congress, in the exercise of 'its powers in the organization and government of the Territories, combining the powers of both the Federal and state authorities.” Again, after citing the judicial clause of the Constitution, (Art. 3, sec. 1,) the court said: “Congress must not only ordain and establish inferior' courts within a State, and prescribe their jurisdiction, but the-judges appointed to administer them must possess the const!

• The subject next received consideration in Clinton v. Englebrecht 13 "Wall. 434, 447, where the question was whether a law of a Territorial legislature, prescribing the mode of obtaining panels of grand and petit jurors was obligatory upon the District Courts of the Territory. The Supreme and District C&rarts of the Territory supposed that they were courts of the United States, and tha’t they were governed in the selection of 'jurors by the -acts of Congress, and not by the statutes passed by the Territorial legislature. In its discussion of the general subject this court, speaking by Chief Justice Chase, said : “ The judges of the Supreme Court of the Territory are appointed by the President under the act of Congress,’ but' this does not ’make the courts they are authorized to hold courts of the United States. This was decided long since in The American Insurance Company v. Canter, 1 Pet. 516 , and in the later case of Benner v. Porter, 9 How. 235 . There is nothing in the constitution which would prevent ■ Congress from conferring the jurisdiction -which they exercise, if the judges were elected by the people of the Territory and conymissioned by the governor. They might be clothed with the same authority to decide all cases arising under the Constitution and laws, of the United -States, subject to the same revision. Indeed, it hardly can -be supposed that the earliest Territorial courts did not decide such questions, although there was no express provision to that effect^ as we have already seen, until’ a comparatively recent period. There is no Supreme Court of the United States, nor is there any Dis

In Hornbuckle v. Toombs, 18 Wall. 648 , 655, the inquiry was as to - whether or not the practice, pleadings, forms and modes of proceedings of the Territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the Territorial assemblies, and to such regulation as the courts- themselves .might adopt.- This court, speaking by Mr. Justice Bradley, s.aid : “The acts of Congress respecting proceedings in the United States courts are concerned with, and confined to, those courts,'considered as parts of the Federal system, and as invested, with the judicial power of the United States expressly conferred by the constitution, and to be exercised in correlation with the pres-, ence and jurisdiction of the several state courts and governments. They were not intended as exertions of that plenary municipal authority which Congress has over the District of Columbia and the Territories of' the United States. . . . As before said, these acts have specific application to the; courts of the United States, which are courts of a peculiar character and jurisdiction.”

•In Good v. Martin, 95 U. S. 90 , 98, the language of-the court, speaking by Mr. Justice Clifford, was: “.Territorial courts are not courts of the United States within the meaning of the Constitution, as -appears by all the authorities.” So in Reynolds v. United States, 98 U. S. 145 , 154, Chief Justice Waite, speaking for the whole court, said: “By section 1910 of the Revised Statutes the District Courts of the Territory have the same jurisdiction brail cases arising under the Constitution and laws of the United States as is vested - in the Circuit and District Courts of the United States ; but this does not make them Circuit and District Courts of the United

These cases close all discussion here as to whether territorial courts are of the class defined in the third article of the Constitution. It must be regarded as settled that courts in the Territories, created under the plenary municipal authority that Congress possesses over the Territories of the United States, are not Courts'of the United States created under the authority conferred by that article. And there is nothing in conflict with this view in Page v. Burnstine, 102 U. S. 664 , where it wa!s held that section 858 of the Revised Statutes of the United States, relating to the competency as witnesses of parties to actions -by or against executors, administrators, or guardians, applied to. the courts of the District of Columbia as fully as to the Circuit and District Courts of the United States. That conclusion was reached, not because the courts of the District of Columbia were adjudged to be of the class in which the judicial power of the United States was vested by the Constitution, but because'' all the acts relating to the competency of witnesses, when, construed together, indicated that that section of the Revised Statutes applied to the courts of the District of Columbia.

For the’.reasons we have stated it must be assumed that the

An. elaborate argument, displaying much thought and extended research upon the part of counsel, has been made in support of the proposition that, upon general principles, lying at the foundation of our institutions, the judicial power in the Territories, exercised as it must be for the protection of life, liberty and' property, ought to have the guaranties that are provided elsewhere within the political jurisdiction of the nation for the independence and security of judicial tribunals created by Congress under the third article of the Constitution.' "We have no occasion to controvert the soundness of this view, so far as it rests, on grounds of public policy. But we cannot ignore the fact that while the Constitution has, in respect \to judges of courts in'which may be vested the judicial power of the United States, secured their independence, by an express provision that they may hold their offices during good behavior;' and receive at stated times a compensation for their services that cannot be diminished during their continuance in office, no such guaranties are provided by that instrument in respect to judges of courts created by or under the authority of Congress for a-Territory of the United States. The absence from the Constitution of such guaranties for territorial judges was

It has been suggested that the conclusion reached in this case is not in harmony with some observations of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137 , 162. It was there said: “Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the actus at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive the appointment is not revocable, and cannot-be annulled. It has conferred legal rights which cannot be resumed.” Again: “ Mr. Marbury, then, since his commission

It was insisted, at the bar, that a territorial judge, appointed and commissioned for a given number of years, was entitled, of fight, to hold his office during that term, subject only to the condition of good behavior. This view was not rested upon any specific clause of the Constitution, but Avas

Judge McAllister claims the salary appertaining to the office of judge of the District Court for Alaska from the date he was suspended until Dawson was commissioned under an appointment made with the advice and consent of the Senate. The statute expressly forbids the allowance of this claim; for it provides that the officer who may be suspended, in’ virtue of its provisions, shall not, during the suspension, receive the

It is insisted that.the appellant is entitled to claim, at least, the salary from the end of the session of the Senate, August. 7th, 1886, until September 3d, 1886, on which day Dawson took the oath of office under his commission of date August 2d, 1886. This contention rests upon the ground that Dawson’s authority to act as judge under his appointment in place of Dawne, suspended, ceased when the Senate closed its session of 1885-6. • It is a sufficient answer to this suggestion to say that when the Senate confirmed the nomination of Dáwson — which must have been prior to August 2d, 1886 — and his commission was signed and sealed, the suspension of Judge McAllister became permanent. If the Senate had adjourned without acting upon that nomination a different questiÓn would have been presented.

The judgment of the Court of Claims dismissing the petition .(22 C. Cl. 318) is

Affirmed.

. Mr. Justice Field, with whom concurred Mr. Justice Gray and Mr. Justice Brown, dissenting.

I am unable to agree with the majority of the court 'in the judgment in this case, or in the reasoning upon which that judgment is reached-; and I will state briefly the grounds of my conclusion.

On the 5th of July, 1881, the appellant, Mr. McAllister, was appointed by the President, “ by arid with the advice and consent of the Senate, District Judge for the District of Alaska, to execute and fulfil the duties of that office accord

The office to which the appellant was thus appointed was one of great power and responsibility. The District Court over which he was to preside was invested not only with the civil and criminal jurisdiction usually exercised by the District Courts of the United States, but also with the jurisdiction in such cases exercised by the Circuit Courts of the United States. 23 Stat. c. 53, secs. 3 and 9. The duties which devolved upon him, therefore, required qualities of a high order. It is not even suggested that he did not possess them.

He took the oath of office on the 23d of August following the appointment, and entered upon its duties, which he discharged until the 28th of August, 1885. During' this period no complaint was made of his want of ability as a judge, or of official integrity, or of 'the manner in which he performed his duties. But on the 21st of July, 1885, and so far as appears by the record, without -notice to him, or any complaint being made against him, and without any indication of what was forthcoming, he was summarily suspended from his office by the President, in the following notice:

“ Executive Mansion,

“Washington, D. C., July 21, 1885.

“Sik: You are hereby suspended from the office of District Judge for the District, of Alaska, in accordance .with the terms of section 1768 of the Devised Statutes of the United States, aud subject to all provisions of law applicable thereto.

“ Gkovee Cleveland. .

“To the Hon. Ward McAllister, Jr., District Judge for the District of Alaska, Sitka, Alaska.”

It was the President’s will that this incumbent should cease to act, and so far as the record discloses, that was all there was

There have been several instances where .the' power to remove a judicial officer of a .court of the United States in-one of the Territories has been exercised by the President; but the legal right to do so has never been brought directly to the test of judicial decision in this court. The two cases which presented the question are United States v. Guthrie, 17 How. 284 , and United States v. Fisher, 109 U. S. 143 , but they went off oh other grounds. In the first case, the Chief Justice of Minnesota Territory had been removed before his term of office had expired. Two years afterwards he applied for -a mandamus against the Secretary of the Treasury to require him to pay his salary. This was* refused, as there had been no appropriation to pay the claim. In the second case, the claimant had been Chief Justice of Wyoming Territory. At the time of appointment his salary was $3000 per annum; which was subsequently reduced to $2600. He brought suit for the difference; but he had accepted the reduced salary in full compensation for his services, and on that ground his suit failed.

My objection to the power- exercised by the President in this case- arises from the nature, of the judicial office, when held by a judge of a court of record, and from its conflict with the tenure of the office conferred by the law under which the appellant was appointed. 1st. The idea essentially appertaining to and involved in the judicial office is that its exercise must be free ’from restraint, without apprehension of removal or suspension or other punishment for the honest and fearless discharge of its functions within the sphere of the jurisdiction assigned to it. No one in my judgment, under our system of law, can be appointed a judge of a court of record having jurisdiction of civil and criminal cases, to. hold the office at

After the statute of 13 William III, which Chancellor Kent speaks of as in the nature of a fundamental charter, imposing further limitations upon the Crown and adding fresh securities to the rights and liberties of the subject, commissions to judges of the courts of. record could no longer be held at the pleasure of the Crown, durante bene plácito, but they continued during the good behavior of the judges, quamdiu bene se gesserint. They were only removable afterwards by the’ King,-upon the address of both houses of Parliament, although their commissions expired with the death of the reigning monarch. This latter condition was changed by the act of 1 George III, so that thereafter their commissions should not then expire and that full salaries should be secured during their continuance. This change was produced upon the special recommendation of-the King, who on that^occasion made a declaration, which Story says is worthy of perpetual remembrance, that “ he looked upon the independence and upright

Since that period no judge of a court of record in England except the Lord Chancellor (and of this exception we will .presently speak) could be removed or suspended from his office by the Crown, except upon the. address of both houses of Parliament, a' limitation upon the exercise of the power which always secures to the accused a notice of the grounds of complaint, and a hearing upon their truth and sufficiency. This condition of permanency during good behavior in the office of judges of the courts of record is now a part of the settled public law of England. The great statutes referred to were passed long before our Revolution, and qualified the existing law of the English Kingdom and .its dependencies as to the conditions upon which the judicial office in courts of record could be-held. The law thus modified then constituted a part of the public or common law-of this country. Whoever is here clothed with a judicial office, which empowers him to judge in any case affecting the life, liberty or property of the citizen, cannot be restrained from the fearless exercise of its duties by any apprehension of removal or suspension, in case he should come athwart the will or pleasure of the appointing power. I cannot believe that under oür Constitution and system of government any. judicial officer invested with these-great responsibilities can hold his office subject to such arbitrary conditions. In my judgment good behavior during the term of his. appointment is the only lawful and constitutional condition to the. retention of his office.

The tenure of the Lord. Chancellor’s office is somewhat different, and though dependent' more or less on the pleasure of the Crown as to the duration of his term, he is secured absolute independence in his judicial duties. Originally the Lord Chancellor was an ecclesiastic, the- keeper of the king’s conscience, and .exercised power in his name, chiefly in ecclesiastical matters. When the necessity of his being an ecclesiastic was changed he was the King’s counsellor as before, and is

Whenever this principle has been disregarded it has aroused deep and general indignation. Among the repeated injuries and usurpations of the King of Great Britain, which our fathers declared just ground for separation from the mother country, was that he had “ made judges dependent upon his will alone for the tenure of their office and the amount and payment of their salaries.” This was one of the wrongs which our fathers submitted to “ a candid world ” as justifying the people of the United States in withdrawing from the English nation and establishing for themselves a new form of government.

’ When the Constitution of the United States was framed, the Convention took special care to prevent the possibility of the commission of such a wrong, under the new government to be created, by embodying in that instrument the declaration that “ the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be. diminished during their continuance in office.” Art. Ill, sec. 1.

This provision was only the expression of a principle that ■had become the established law of all English-speaking people.

And again, after stating that the judiciary is the weakest of the three departments of the government, and that though oppression may now and then proceed from the courts of justice, he says: •“ The general liberty of the people can never be . endangered-from that quarter'; I mean so long as the judiciary remains truly distinct from both the legislative and the executive. For I agree, that ‘ there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone,, but would have everything to fear from its union with either of the other departments; that as all the effects of such union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and. independence-as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the -citadel of the public justice and the public security.”

It is contended that because courts established in the Territories are not the courts to which the Constitution has refer

• Similar language is also found in other cases, some of which are cited in-the opinion of the court; but this does not show that they are not courts of the United States, though created for the Territories. The fact that they exercise a peculiar jurisdiction and are created for the Territories does not change their character as courts of the United States.

In Hunt v. Palao, 4 How. 589 , a judgment had been rendered in the Court of Appeals of the Territory of Florida, in the year 1844. After Florida became a State its legislature ordered the records of that court to be transferred to the custody of the clerk of the Supreme Court of the State. Speaking of this subject, Chief Justice Taney said: “The Territorial Court of Appeals was a court of the United States, and the control of its records therefore belongs to the general government, and not to the state authorities; and.it rests with-Congress to declare to what tribunal these records and proceedings shall be transferred; and how these judgments shall be carried into execution, or reviewed upon appeal or writ of error.”

When a Territory becomes a State, the records of the courts of the Territory are transferred to the new State courts and to the Federal. courts respectively; the judicial proceedings existing in the courts of the Territory being continued by federal law in the respective state and federal courts, according to the questions, involved and the citizenship of the parties.

2d. But assuming that judicial offices in the Territories may be held subject to the will of the creating power; that is,, assuming that Congress may provide that the incumbent may be removed or suspended from his office during the prescribed term at the pleasure of the President, the statute creating the office of District Judge of Alaska and prescribing his term has not attached to it any such conditions. .It declares that the District Judge shall hold his office for the term of four -years and until his successor is appointed and qualified. To assert that the President can remove the incumbent or suspend him from his office without the direction or permission of Con

• The President placed the authority, which he assuiped to exercise in suspending the appellant from his office, upon section 1768 of the Revised Statutes. The part of that section upon which reliance is had is as follows :

“ Sec. 1768. During any recess of the Seriate the President is authorized, in his discretion, to suspend any civil officer appointed by and with the advice and' consent of the Senate, ■except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed, in his discretion, by the designation of another, to perform the duties of such suspended officer in the meantime; and the person so designated shall take the oath and give the bond required by law to be taken and given by the suspended officer, and shall, during the time he performs the duties of such officer, be entitled to the salary and emoluments of the office, no part of which shall belong to the officer suspended.”

I do not understand how the language in this Section, “except judges of the courts of the United States,” can be construed ta apply only to judges óf courts created under the Constitution. "Why should the exception, if thus limited, have been inserted at all? It is- not pretended, and never has been, that such judges could be suspended or removed by the President. It is very plain to me that it was intended to' meet the- position, which had been advanced in some quarters, that judges of the courts of the United States in the Territories were subject to be removed or suspended by the President equally with other officers. Otherwise there is no assignable cause for its insertion.

For these reasons, therefore, first, that the judicial office in question was to be held by the incumbent during good behavior, for the term prescribed, and second, that section 1768, upon which the suspension was founded, expressly excepts the judges of the courts of the United States from suspension by

Iam authorized to state that Mr. Justice G-ray and Mr. Justice Brown concur in this dissent.