US SUPREME COURT DECISIONS

The President has power to remove a district attorney of the United States when such removal occurs within four years from the date of the attorney's appointment and, with the advice and consent of the Senate, to appoint a successor to him.

Section 769 of the Revised Statutes, which enacts that

"district attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years from their respective dates,"

provides that the term shall not last longer than four years, subject to the right of the President to sooner remove.

It was the purpose of Congress in the repeal of the tenure of office sections of the Revised Statutes to again concede to the President the power of removal, if taken from him by the original Tenure of Office Act, and, by reason of the repeal, to thereby enable him to remove an officer when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office.

The legislative, executive and judicial history of the question reviewed.

The appellant, on the 4th day of December, 1894, filed in the Court of Claims an amended petition in which he alleged that, on the 4th of February, 1890, after his nomination and confirmation, he was duly appointed, qualified, and commissioned for the term of four years as attorney for the United States for the Northern District of Alabama, and also to act as such for the Middle district of Alabama; that thereupon he entered upon the discharge of the duties of his office; that he never resigned the same, and that he then resided, and has continued to reside, since the date of his commission, in the City of Birmingham, Alabama, and within the Northern District of Alabama, and that he had given his personal attention to the duties of his office, and that no cause of removal bad existed since his appointment.

Although the appellant was, as he alleged, duly commissioned as such district attorney, the contents of the commission do not appear in the petition nor in the record, but it has chanrobles.com-red

Page 167 U. S. 325

been assumed that it contained the usual language, which, after authorizing and empowering the officer to execute and fulfill the duties of the office, proceeds as follows:

"To have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining unto him, the said Lewis E. Parsons, Jr., for the term of four years from the date hereof, subject to the conditions prescribed by law."

It was further alleged in the petition that, on the 29th day of May, 1893, the appellant received a written communication from the President of the United States, as follows:

"Executive Mansion"

"Washington, D.C., May 26, 1893"

"Sir: You are hereby removed from the office of Attorney of the United States for the Northern and Middle districts of Alabama, to take effect upon the appointment and qualification of your successor."

"Grover Cleveland"

"To Lewis E. Parsons, Jr."

"Birmingham, Ala."

No charges had been preferred against the appellant.

Under date of Birmingham, Alabama, June 5, 1893, he sent a written communication to the President of the United States at Washington, D.C., in which he said:

"My commission bears date February 4, 1890, and authorizes me to hold said office for the definite term of four years from the date thereof, fixed by law, and I am advised by counsel, and it is my own opinion, that you have no power to remove me, and I respectfully decline to surrender the office."

"Very respectfully,"

"Lewis E. Parsons, Jr."

"United States Attorney for the Northern District of Alabama"

This answer was duly mailed to the President of the United States, and on the same day, viz., the 5th day of June, 1893, chanrobles.com-red

Page 167 U. S. 326

the appellant notified both the Attorney General of the United States and Emmet O'Neal that he declined to surrender the office of Attorney of the United States for the Northern District of Alabama to said O'Neal, who was named by the President as appellant's successor, his (O'Neal's) appointment bearing date May 26, 1893.

Upon the 20th day of June, 1893, O'Neal moved the Circuit Court for the Southern Division of the Northern District of Alabama to require appellant to turn over to him all the books and papers and other property appertaining to the office, which motion was resisted by appellant, but was granted by the court, although it did not adjudicate or determine the question of the title to the office or the power of the President to remove the appellant. In re O'Neal, 57 F.2d 3.

The appellant applied to this Court for leave to file a petition for a writ of mandamus to compel the judge to vacate his order granting the motion of Mr. O'Neal, which application was denied, but the merits of the case were not passed upon. In re Parsons, 150 U. S. 150.

The appellant further alleged in his petition that from the first of January, 1893, to May 26th of that year, he had earned certain fees, which had been duly accounted for and approved by the district judge, and that, since the 26th of May and prior to the 31st day of December, 1893, certain other fees had been earned for services rendered by Mr. O'Neal, who had been performing the duties of United States attorney since the 26th of May, 1893, and that, on the whole, there was a balance due appellant for salary and fees during the year 1893, appertaining to his office as district attorney, which amount had been demanded by appellant, and payment had been refused. Judgment for the amount was demanded.

The usual answer was put in by the United States. It further appears that on the 26th of May, 1893, the Senate of the United States was not in session, but that in August, 1893, that body was in session, and that the nomination of Mr. O'Neal was sent to it, and his appointment was by it consented to and confirmed, and that he was commissioned as United States district attorney for four years from that time. These facts have chanrobles.com-red

Page 167 U. S. 327

not been stated in the formal finding of facts by the court below, but they have been referred to by both the counsel in their briefs in the case as part of the admitted facts, and the fact of the confirmation of Mr. O'Neal on the 26th day of August, 1893, by the Senate, is stated by Judge Weldon in the course of his opinion in this case. 30 Ct.Cl. 222. The court below determined as a conclusion of law that the appellant was not entitled to recover, and his petition was therefore dismissed. From that judgment he has appealed to this Court.