governing that service as laid down by the Civil Service Act and an executive order issued in pursuance thereof. In other words, it was held that from the general executive power of the President is implied a power of removal from office, and that under this general power he may issue rules for the government of the executive departments with reference to removals, but that these rules are not imposed upon the President by law or by the Constitution, and that, therefore, if they be violated by the executive chiefs, with the President's approval, the person so deprived of office has no legal right to reinstatement.

§ 701. Mandamus to Reinstate in Office.

In Keim v. United States18 it was held that the action of the Secretary of the Interior in discharging a clerk in his department for incompetency was not subject to review in the courts either by mandamus to reinstate him or by compelling the payment to him of his salary. The court say:

"The appointment to an official position in the government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power.

"In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. 'It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.' Re Hennen, 13 Pet. 225; 10 L. ed. 136; Parsons v. United States, 167 U. S. 324; 17 Sup. Ct. Rep. 880; 42 L. ed. 185. Unless, therefore, there be some

18 177 U. S. 290; 20 Sup. Ct. Rep. 574; 44 L. ed. 774.

specific provision to the contrary, the action of the Secretary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed."

§ 702. NOTE.- The Powers of Removal by State Governors. From the foregoing pages it is seen to be established that the right of removal from office exists in the President unless taken away in plain and unambiguous language, and that it is by no means certain that it may be taken away even when such language is used. In the States, however, this doctrine does not apply to the governor. Here it has been generally held that he has no inherent powers of removal, in this respect the powers of the state executive contrasting with those of the federal executive in a manner similar to that in which the governor's powers of administrative control are contrasted with those of the President. This general contrast between the state gubernatorial and the federal presidential offices is well set out in the case of Field v. Illinois, 3 Ill. 79. The court there say:

"The reasoning in favor of the Governor's authority to remove the Secretary, because of the latter's duty to register his official acts, can have no application to the Secretary of State; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed by the Constitution. In the performance of this, as of other duties, he does not act as the Governor's officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law.

"The injunction, that the Governor shall see that the laws are faithfully executed, it is also urged, gives him the control, and consequently the power of removal of the officers of the executive department. This inference is not justified by the premises. It has neither the sanction of authority nor the practice of other State executives, both of which are opposed to it."

"As the right of appointment to office has not been given to the Governor as a general rule, as it has to the President, the analogy between their powers relied upon does not hold good; and whatever may be the theoretical or political denomination of this power under other governments, it cannot be considered an executive function under our Constitution, because it does not belong to the executive.

"So diversified is the practice of the governments of the States, in reference to the appointment of officers, that no general rule can be deduced from it; certainly none to justify the assumption that it is an executive function. Under these governments, then, it is an executive, or legislative, or popular function or power, according as the respective constitutions have made it so. "The disparity between the powers of the President and Governor is not greater in reference to appointment to office than it is in reference to their

supervision and control of the officers of the executive department, when appointed.

"The Constitution of the United States and of this State contain the same declarations that the executive powers of the government shall be vested in the respective executives; and in the Constitution of the first, this declaration is carried out by its other provisions. It creates no other officers in whom a portion of this power is vested or required to be vested by law. Those officers whom the President may remove are created by law, as aids and helps to him in the performance of his duties. But the declaration in our Constitution, that the executive power of the government shall be vested in the Governor, is to be understood in a much more limited sense; inasmuch as, by its other provisions, it is greatly circumscribed and narrowed down. Unlike the Constitution of the United States, ours has created other executive officers, in whom a portion of this power is required to be vested by law, not to be assigned by the Governor.

"As, by the Constitution of the United States, the President has the control of the whole executive department, it having created no other officers in whom any portion is vested, or required to be vested by law; and as those who are to assist him in its administration are by law placed under his supervision and control, he thereby becomes politically responsible for its proper administration. This responsibility was strongly urged as a reason for giving him authority to remove those officers for whose conduct he was responsible.

"Here, again, is a contrast, in place of an analogy, between the powers and responsibility of the executives of the two governments; and also between the character and accountability of the executive officers of the respective govern

ments.

"The Governor is, neither in fact nor in theory, personally nor politically responsible for the official conduct of the Secretary, or any other officer. He cannot assign him the performance of a single duty or control him in the performance of those assigned by law. He does not move in the executive circle, as has been said, but in that marked out by the Constitution and by the law, separate, distinct from, and independent of, that of the Governor. He looks to the law for his authorities and duties, and not to the Governor; and to that, and that alone, he is responsible for their performance.

"From this comparison between the powers of the President and Governor, and between the character, duties, and accountability of the officers, whom the President may remove, and the Secretary of this State, there is no similarity, so far as regards the decision of this case; and, by an examination of the debates of 1789, it will be seen that the concession to the President, of the power now claimed by the Governor, was made for reasons which cannot apply to it. Convenience and a supposed necessity may have had some influence, but, from the general scope and tendency of the arguments of the advocates of the President's power, there would seem to be no doubt that the concession was made because of the general grant to him of the executive

power; his entire control over, and responsibility for, the proper administration of the executive departments; and because of his right to prescribe the duties of the officers of the departments, and supervise and control them in the manner of their execution.

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"In every respect, then, in which I can view this case, I am constrained, according to the convictions of my mind, to say, that the Governor has no power under the Constitution to remove from office the Secretary of the State, at will and pleasure. No express grant of this power is to be found in the Constitution; nor can it be implied from any of its provisions. It is not a power necessary, as has been shown, to the exercise of any of the powers expressly delegated, or the performance of any of the duties enjoined upon the executive."

MILITARY LAW.

§ 703. Military Powers of the General Government.

Under the Articles of Confederation the General Government had not been granted adequate military authority. To it had been conceded by the States the power to "build and equip a navy." But for its land forces it was obliged to rely wholly upon requisitions made upon the States, each State being pledged to supply a quota in proportion to the number of its white inhabitants. The regimental officers of these forces were appointed by the States, only the general officers being appointees of the General Government. From these quotas the national forces were supplied. Over the militia bodies of the several States, the General Government was given no control whatever.

Under the present Constitution, the Federal Government is given full power for the organization and maintenance of both naval and land forces of its own, and a considerable authority over the state militia forces. The constitutional clauses in which these powers are granted are as follows:

The Congress shall have power to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

"To provide and maintain a navy;

"To make rules for the government and regulation of the land and naval forces;

"To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

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To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." The second article of amendment to the Constitution provides that "A well-regulated militia, being necessary to the 1 Art. I, Sec. VIII.