give his opinion in writing to the Committee explaining to us our powers and making what suggestions he thought desirable in relation to this legislation. It is a difficult, a complex, almost impenetrable subject with which we have been called upon to deal, and I do not propose to be disparaged nor to allow anybody else to be disparaged by a sneering suggestion that we have consulted the Attorney-General or even the President of the United States. I count it just as respectable and just as perfectly in line with my public duty to take counsel with the President of the United States on these questions as for my colleagues and for others to hold sweet counsel with the presidents of railroad corporations. should not of the MR. BAILEY. Mr. President, I belong to that very small Congress class of Senators and Representatives who do not believe that it is proper for them to be influenced in the performance of their leg- by views islative duties by the views of the executive department and it has never been my practice since I had the honor to occupy a seat in Congress to confer with any President, either of my own or of the opposition party, in respect to any legislation. President. tion. The only exception I ever made and that more apparent An excepthan real-was in the case of the lamented and martyred McKinley, whose invitation I accepted to confer with him in the hope that we might find a way to avert the war with Spain. Upon a question like that, which was not legislative, I felt that any Member of Congress might properly confer with the Executive of the Republic. But, sir, I have so often seen and this applies not only to the present President of the United States, but to his predecessors in that great office- I have so often seen the judgment of Congress overruled or controlled by the executive influence that early in my service in the other House I resolved that it should never prevail with me. of powers. I remember when a mere school boy reading of a great Vir- The ginia Democrat being invited to the White House by a President, separation of his own party and chosen from his own State, to confer upon an important question pending in the Congress, and I remember Transmis sion of a bill to Congress. how my youthful blood was made to run faster when I read how that great Virginia Democrat said: "Mr. President, the Constitution of the United States has separated the executive and legislative departments of this Government, and, by the help of God, I intend to keep them separate." I adopted that as my creed and I have lived up to it from that day to this. 78. How Executive Departments May Draft Bills While the initiation of legislation is theoretically left to Congress, the President may recommend such measures as he sees fit. These measures need not be limited to mere general statements; they often take the form of completed bills all ready for passage, which are sometimes adopted by Congress without alteration. This message of President Cleveland illustrates the practice. To the Senate and House of Representatives: I transmit herewith a communication of the 15th instant from the Secretary of the Interior, submitting, with accompanying papers on the subject, a draught of a bill to amend section 5388 of the Revised Statutes of the United States relating to timber depredations upon lands reserved or purchased for military, Indian, or other purposes, &c. This is an important subject, and is commended to the early attention of Congress. Executive Mansion, December 21, 1885. GROVER CLEVELAND. CHAPTER XI THE NATIONAL ADMINISTRATION 79. The President's Power of Removal * WHILE giving the President power to appoint officers by and with the advice and consent of the Senate, the Constitution makes no express provision as to how undesirable officers should be removed. By practical experience, however, it has been found that no executive can assume responsibility for an administration unless he can keep the subordinate officials up to a high standard of efficiency through the disciplinary power of removal. That this power is possessed by the President under the Constitution is the theme of the following decision by the Supreme Court. the case. The facts as they appear in the findings of the Court of Claims The facts in are that the appellant was nominated on July 17, 1890, to be one of the general appraisers of merchandise under the act of June 10, 1890, chapter 407, 26 Stat. 131, and that nomination was consented to on the following day by the Senate, and the appellant was thereupon commissioned to be such general appraiser of merchandise. He accepted that office and took the oath required on July 24, 1890, and remained in such office and was paid the salary attaching thereto up to May 15, 1899. On May 3 of that year he received the following communication from the President: EXECUTIVE MANSION, SIR: You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor. WILLIAM MCKINLEY. The statute creating the office. Has the President. a general unrestricted power to remove? The enumeration of certain causes does not restrict the general power. The appellant never resigned his office nor acquiesced in any at tempted removal therefrom, and he was never notified or informed of any charges made against him, either of inefficiency, neglect of duty or malfeasance in office, and he knows of no cause for his removal from the office having been ascertained or assigned by the President. Mr. Justice Peckham, after making the foregoing statement delivered the opinion of the court. The office of general appraiser of merchandise was created by the twelfth section of the act of Congress approved June 10, 1890. The material portion of that section reads as follows: SEC. 12. That there shall be appointed by the President by and with the advice and consent of the Senate, nine general appraisers of merchandise. ... They shall not be engaged in any other business, avocation or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office. There is of course no doubt of the power of Congress to create such an office as is provided for in the above section. Under the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing, Reagan v. United States, 182 U. S. 419, 425. It must be presumed that the President did not make the removal for any cause assigned in the statute, because there was given to the officer no notice or opportunity to defend. The question then arises, can the President exercise the power of removal for any other causes than those mentioned in the statute; in other words, is he restricted to a removal for those causes alone, or can he exercise his general power of removal without such restriction? The appellant contends that because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any other cause, and that the President was therefore by the statute pro hibited from any removal except for the causes, or some of them, therein defined. The maxim, expressio unius est exclusio alterius, is used as an illustration of the principle upon which the contention is founded. We are of opinion that as thus used the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon that subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by the Constitution or statute. It requires plain language to take it away. Did Congress by the use of language providing for removal for certain causes thereby provide that the right could only be exercised in the specific causes? If so, see what a difference in the tenure of office is effected as to this office, from that existing generally in this country. The tenure of the judicial officers of the United States is provided for by the Constitution but with that exception no civil officer has ever held office by a life tenure since the foundation of the government. The uniform practice in cases of To construe the statute as contended for by the appellant is to give an appraiser of merchandise the right to hold that office during his life or until he shall be found guilty of some act specified in the removal. statute. If this be true, a complete revolution in the general tenure of office is effected, by implication, with regard to this particular office. We think it quite inadmissible to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. We can see no reason for such action by Congress with reference to this office or the duties connected with it. In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that mere specification in the statute of some causes of removal thereby excluded the right of the President The President presumed to act constitutionally. |