Burnap v. United States, 252 U.S. 512 (1920)

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Burnap v. United States

No. 228

Argued March 12, 1920
Decided April 19, 1920
252 U.S. 512

APPEAL FROM THE COURT OF CLAIMS

Syllabus

The power to remove from public office or employment is, in the absence of any statutory provision to the contrary, an incident of the power to appoint, and the power to suspend is an incident of the power of removal. P. 515.

In § 19, Rev.Stats., which authorizes each "head of a Department" to employ clerks, messengers, laborers, etc., and other employees, "head of a Department" means the Secretary in charge of a great division of the executive branch who is a member of the Cabinet, and does not include heads of bureaus or lesser divisions. P. 515.

The term "employ" as thus used is the equivalent of appoint. Id.

The terms "clerks" and "other employees," as used in Rev.Stats. § 169, include persons filling positions which require technical skill, learning, and professional training. Id.

Whether the incumbent is an officer or an employee is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties, and appointment thereto. P. 516.

Although the Office of Public Buildings and Grounds is part of the bureau of the Chief of Engineers, in the War Department, appointment of a landscape architect (whose employment is authorized by general appropriation acts) is not to be made by the Secretary of War under the general authority of Rev.Stats. § 169, but by the Chief of Engineers under the specific authority given him by § 1799 to employ in such office and in and about the public buildings and grounds under his control such persons as may be appropriated for from year to year. Id.

The power to remove such landscape architect is with the Chief of Engineers as an incident of the power of appointment, and is not affected by the fact that the appointment, acquiesced in by the Chief of Engineers, was made without authority by the Secretary. P. 518.

In the absence of regulations prescribed by the President through the War Department under Rev.Stats. § 1797, and assuming the regulations governing the classified Civil Service as applied to the Engineer Department at large do not affect the Office of Public Buildings and Grounds, the power of the Chief of Engineers to remove the landscape architect is to be exercised in the manner prescribed by the Act of August 24, 1912, c. 389, § 6, 37 Stat. 555, and Civil Service Rule XII. P. 519.

The landscape architect in the Office of Public Buildings and Grounds is not an officer, but an employee. Id.

53 Ct.Clms. 605 affirmed.

The case is stated in the opinion.