Prologue — O'Donoghue v. United States

Sree Court ofthe Unite tee

‘No. 729

DANIEL W. O'DONOGHUE

vs.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF CLAIMS

FILEP FEBRUARY %, 1933.

(37,426)

x

(37,426)

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1932

No. 729

DANIEL W. O’DONOGHUE

vs.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF CLAIMS

INDEX

Original Print

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Jupp & DETWEILER (INC.), PRINTERS, WASHINGTON, D. C., FEBRUARY 27, 1933

1

[fol. 1]

IN COURT OF CLAIMS OF THE UNITED STATES

No. 42232

DanieL W. O’L onoGHUE

Vv.

Tue Unirep Srates

STATEMENT OF Facts aND CERTIFICATE

Messrs. John S. Flannery, Daniel W. O’Donoghue, Jr.,

John W. Davis, and George E. Hamilton appeared for the

plaintiff.

Messrs. H. B. Holland and Charles F. Kincheloe ap-

peared for the defendant.

Before Acting Chief Justice Green, Judge Littleton, Judge

Whaley (Judge Williams taking no Part; Chief Justice

Booth Taking no Part on Account of Illness)

The Court of Claims hereby certifies that the record of

the above-entitled case now pending before it discloses the

following:

The plaintiff, Daniel W. O’Donoghue, has dul’ filed his

petition in the Court of Claims on the nineteenth day of

January, 1933, in which he claims and asks judgment

against the United States in the sum of $500, as salary

due him for the months of July to December, 1932, inclu-

sive, all of which will more particularly appear from his

said petition, a copy of which accompanies this certificate

and is marked ‘* Exhibit A’’.

lfol.2]) The petition of plaintiff, among other things, al-

leges in substance that on February 238, 1932, he was ap-

pointed by the President of the United States, an Asso-

ciate Justice of the Supreme Court of the District of Co-

lumbia, by and with the consent of the Senate, and on the

twenty-ninth day of February, 1932, duly qualified as such

Associate Justice and ever sinee said date has been en-

gaged in the performance of his duties as such Associate

Justice of the Supreme Court of the District of Columbia.

1—729

From and after the date of his appointment and entry

upon his duties he received a salary as Associate Justice

of the Supreme Court of the District of Columbia at the

rate of $10,000 a vear until June 30, 1932, pursuant to the

provisions of the Act of December 13, 1926, ‘‘to fix the

salaries of certain Judges of the United States’’ (44 Stat.

919-920). ,

From and after July 1, 1932, and for the months of July,

August, September, October, November, and December,

1932, his salary and compensation was reduced ten per

cent pursuant to a ruling of the Comptroller General, and

by reason of which $500 of his salary for the period above

mentioned is unpaid. The ruling of the Comptroller Gen-

eral was based upon the Act approved June 30, 1932, mak-

ing appropriations for the legislative branch of the Gov-

ernment for the fiscal vear ending June 30, 1933 (47 Stat.

382, 399), in which was incorporated certain provisions

known as the Economy Bill. In said ruling, the Comp-

troller General held, among other things, that the Supreme

[fol.3] Court and Court of Appeals of the District of Co-

lumbia were ‘‘legislative’’ and not ‘‘constitutional’’ courts

entitled to the protection of Section 1, Article III, of the

Constitution, and that the compensation of Justices thereof

could be diminished.

Plaintiff further avers in his petition that the said courts

of the District of Columbia are inferior courts of the United

States, created and established by virtue of the provisions

of Article III, Section 1, of the Constitution thereof, and

by reason of the provisions therein contained the afore-

said deduction from his compensation was contrary to the

provisions of the Constitution and unlawful.

Plaintiff is the owner of the claim, of which there has

been no assignment or transfer and has at all ‘times borne

true allegiance to the Government of the United States

and never in any way voluntarily aided, abetted, or given

encouragement to rebellion against the said Government,

and is a citizen of the United States.

To this petition, the defendant has filed a demurrer on

the following grounds:

**1. The petition does not state a cause of action against

the defendant within the jurisdiction of this court.

3

9, The petition does not state a cause of action against

the defendant.

(fol. 4] 3. The defendant specially demurs to said petition

for the reasons that—

(a) The justices of the Supreme Court of the District

of Columbia are not judges of ‘‘inferior courts’? within the

meaning of Section 1 of Article 3 of the Constitution of

the United States, and are, therefore, not ‘‘ officers whose

compensation may not, under the Constitution, be dimin-

ished during their continuance in office’? within the mean-

ing of Section 104 (a) of the Act of June 30, 1932, ¢. 214, 47

Stat. 382, 400.

(b) Said petition does not set forth facts sufficient to

give rise to an implied agreement between plaintiff and de-

fendant that plaintiff’s compensation should not be reduced

during his continuance in office.

(c) Plaintiff’s compensation being payable, under the

Act of June 29, 1932, ¢. 308, 47 Stat. 343, 368, out of reve-

nues appropriated for activities of the District of Columbia,

plaintiff’s sole cause of action, if any, is against the Dis-

trict of Columbia, and is, therefore, not within the juris-

diction of this Court.

(d) In so far as the petition seeks the determination of

questions not involving the Constitution of the United

States, the jurisdiction of this Court is barred by Section

111 of the Act of June 30, 1932, ¢. 314, 47 Stat. 382, 403.’’

The defendant, by the filing of this demurrer, admits

the facts stated in the petition to be true, and upon the

(fol. 5] record before it the Court finds it necessary for a

proper disposition of the case that certain constitutional

questions should be determined, These constitutional ques-

tions are as follows:

QUESTIONS CERTIFIED

1. Does Section 1, Article IM, of the Constitution of the

United States apply to the Supreme Court of the District

of Columbia and forbid a reduction of the compensation

of the Justices thereof during their continuance in office?

2—729

wee

II. Can the compensation of a Justice of the Supreme

Court of the District of Columbia be lawfully diminished

during his continuance in office?

It is respectfully requested that the Supreme Court of

the United States give appropriate instructions on the

above questions and certify and transmit the same to the

Court of Claims of the United States for its guidance in

the further progress of the case.

Wm. R. Green, Acting Chief Justice. Benjamin H.

Littleton, Judge. Richard 8S. Whaley, Judge.

[fol. 6] Exnipit ‘fA’? Tro CEertiricatE

In Court or CLAtMs Or THE UNtrep Strares

No. 42232

DanieL W. O’Donoauve

vs.

Tue Unirep States

PETITION

The plaintiff, Daniel W. O’Donoghue respectfully states:

I. He is a citizen of the United States and a resident

of the District of Columbia.

Il. Plaintiff was given by the President of the United

States an ad interim appointment as Associate Justice of

the Supreme Court of the District of Columbia on October

28th, 1931, and thereafter was nominated and by and with

the advice and consent of the Senate was permanently ap-

pointed by the President of the United States on February

[fol. 7] 23, 19532, as an Associate Justice of the Supreme

Court of the District of Columbia and thereafter on the

29th day of February, 1932, duly qualified as such Asso-

ciate Justice and ever since said date has been actively en-

gaged in the performance of his duties as such Associate

Justice of the Supreme Court of the District of Columbia.

—_—_Te

me

+s ees

v

Ill. Plaintiff was so permanently appointed and com-

missioned to hold said office during good behavior and at

the time of his appointment the salary of the office of ati

Associate Justice was permanently fixed at the rate of Ten

Thousand Dollars ($10,000) per annum by the Act of Con-

wress approved December 13th, 1926, ‘‘to fix the salaries

of certain Judges of the United States’? (44 Stats. 919-

920).

Under the provisions of Section 714 of the Revised Stat-

utes of the United States, as amended—which was derived

from the Aet of April 10th, 1869 (C, 22, See. 5, 16 Stats.

45), and is now Section 260 of the Judicial Code and See-

tion 375 of the United States Code—as further compensa-

tion for services rendered and to be rendered, the plain-

tiff, after having held a commission as Justice of said

Court for at least ten years continuously, and upon at-

taining the age of 70 years, was given the right to resign

and to thereafter receive during the residue of his natural

lite the salary payable at the time of such resignation for

the office that he then held, or, instead of resigning, to re-

tire from active service on the Bench upon the salary of

which he was in ceceipt at the time of such retirement.

IV. Plaintiff further states that at the time of his ap-

pointment he was, and had been for many years, engaged

[fol. 8] in the general practice of the law before the Su-

preme Court of the United States and all the Courts of the

District of Columbia, and that he was induced to relinquish

the greater emoluments of private practice for public serv-

ice upon the Bench because from his knowledge of the de-

cisions of this Court and of the Supreme Court of the

United States he understood and believed that the Supreme

Court of the District of Columbia was an inferior Court of

the United States created under Section 1, Art. IIT of the

Constitution and that under said Section 1 he would receive

a compensation which could not be diminished during his

continuance in said office and that when eligible to retire

or resign under the Retirement Act aforesaid he would

continue thereafter to receive for the remainder of his

life the compensation to which he was entitled on the date

of such retirement or resignation without diminution.

V. From the date of his appointment as aforesaid plain-

tiff was paid the salary of the office as so fixed to and in-

Qyprwetsen tem cee ett my ters

6

eluding December 31st, 1932, less deductions hereinafter

mentioned. By the Act ‘‘making appropriations for the

Government of the District of Columbia and other activi-

ties chargeable in whole or in part against the revenues of

such District for the fiscal vear ending June 30th, 1933, and

for other purposes,’’ approved June 29th, 1932 (47 Stats.

343, 368), appropriation was made by the Congress to pay

the compensation of the plaintiff and other Justices of the

various Courts in the District of Columbia, and plaintiff

[fol. 9] is informed and avers that there are sufficient funds

in the Treasury of the United States available for such

purpose.

Inthe Act approved June 30th, 1932, ‘Smaking appropria-

tion for the legislative branch of the Government for the

fiscal year ending June 380th, 1983”? (47 Stats. 382, 399),

the Congress incorporated certain provisions known as the

Keonomy Bill and on or about the 13th of July, 1982, as

plaintiff is informed and avers, the Comptroller General

of the United States made a ruling in which he held, among

other things, that the Supreme Court and Court of Appeals

of the District of Columbia were ‘legislative’? and not

‘constitutional’? Courts entitled to the protection of See-

tion 1, Art. ILI, of the Constitution and that the compensa-

tion of the Justices thereof, whether active, retired, or

resigned, could be diminished.

The Disbursing Officer of the Department of Justice pur-

suant to said ruling of the Comptroller General reduced

the aforesaid annual compensation to which plaintiff was

entitled by the deduction of ten per cent (10%) thereof

and, notwithstanding his protest, plaintiff was paid. at

this reduced rate for the months of July, August, Septem

ber, October, November and December, 1932, whereby he

has suffered a loss of compensation to which he is justly

entitled in the sum of Five Hundred Dollars ($500) and

is informed that similar deductions will continue to be

made in the future. Plaintiff is also informed and avers

that similar deductions have been made and will continue to

be made from the salaries of his Associate Justices and

[fol. 10] from the compensation of Walter 1. MeCoy, former

Chief Justice, and Wendell P. Stafford, former Associate

Justice of the Supreme Court of the Distriet of Columbia,

who retired December 8th, 1929, and May 2nd, 1931, re-

7

spectively, after becoming eligible to do so under the pro-

visions of the aforesaid Retirement Act then in force.

VI. Plaintiff is advised and avers that the ruling of

the Comptroller General aforesaid, and the deductions from

the salary of plaintiff made by the disbursing officer of the

Department of Justice pursuant thereto, are contrary to

and in direct violation of the terms of the so-called Keonomy

Bill of June 30, 1932, aforesaid, because

(1) Section 106 of said Keonomy Bill specifically applies

only to ‘the retired pay of all Judges’? and plaintiff has

not retired but is actively engaged in the performance of

the duties of his office, and Section 107 (5) of said Economy

Bill specifically applies only to ‘‘salaries and retired pay

of all Judges (except Judges whose compensation may not,

under the Constitution, be diminished during their continu-

anee in office), if such salaries or retired pay are at a rate

exceeding $10,000 per annum, shall be at the rate of $10,000

per annum, and,

(2) in that the said act specifically excepts from the op-

eration of the provisions thereof judges whose compensa-

tion may not, under the Constitution, be diminished during

their continuance in office ;”’

that plaintiff is such a judge whose compensation may not,

under the Constitution, be diminished during his continu-

[fol. 11] ance in office; and that therefore the said ruling of

the Comptroller General, and the deductions of the dis-

bursing officer of the Department of Justice pursuant

thereto, are contrary to law and illegal.

VII. Plaintiff is advised and avers that the ruling of the

Comptroller General that the salary of plaintiff may he

diminished during his continuance in office, and the deduc-

tions aforesaid of the disbursing officer of the Department

of Justice from the salary of plaintiff resulting in diminu-

tion of plaintiff’s compensation during his continuance in

office, contravene the Constitution of the United States and

are therefore unconstitutional, illegal, and void, in that

plaintiff having been appointed to serve during good be-

havior may not be removed except by impeachment and

his compensation may not, under the Constitution, be dimin-

ished during his continuance in office.

VIII. Plaintiff is advised and avers that the ruling of

the Comptroller General that the salary of plaintiff may

be diminished during his continuance in office, and the de-

ductions aforesaid of the disbursing officer of the Depart-

ment of Justice from the salary of plaintiff resulting in

diminution of plaintiff’s compensation during his continu-

ance in office, contravene the Constitution of the United

States and are therefore unconstitutional, illegal, and void,

in that plaintiff is a judge of an inferior court of the United

States within the terms of Article ITT of the Constitution,

namely, the Supreme Court of the District of Columbia,

whose compensation may not be diminished during his con-

tinuance in office.

[fol.12] Plaintiff states that the said Supreme Court of

the Distriet of Columbia is vested by acts of Congress with

all the jurisdiction and all the power conferred by the Con-

stitution under Artiele IIT on the United States, and that

the powers so conferred on the United States bv said Ar-

ticle have been exercised by the Court of Appeals from its

organization and by the Supreme Court of the District of

Columbia, and its predecessor courts, from the establish-

ment of the government. Plaintiff therefore charges that

in the organization of the courts of the Distriet of Colum-

bia, the Congress of the United States acted by virtue of

Article TIT of the Constitution and thereby constituted

said courts inferior courts of the United States, and to the

extent and only to the extent that Congress has enlarged

and extended the powers of said courts did it act under

any other than Article ITI.

Plaintiff therefore avers that the said Courts of the Dis-

trict of Columbia, to the extent that they exercise all the

judicial powers granted to the United States, are inferior

courts of the United States under said judiciary provision

of the Constitution, and that they are none the less inferior

courts under the said article of the Constitution because,

by reason of their location at the seat of government, Con-

gress, under Article T, section 8, has conferred upon them

powers and jurisdiction which it may not confer upon

other Federal courts.

IX. Plaintiff further states that while reluctant to insti-

tute a suit which may result in personal benefit to himself,

[fol. 13] he feels that it is his duty to the Court, to the Bar

UR me

9

and to the people of the District of Columbia to have the

status of the Court defined and settled as soon as it may

be possible.

X. Plaintiff is further advised and avers that his right

to recover the amount of compensation so unlawfully de-

ducted is founded upon the Constitution of the United

States, the Acts of Congress hereinbefore referred to fix-

ing the compensation of the Associate Justices of the Su-

preme Court of the District of Columbia, upon Section 714

of the Revised Statutes of the United States, as amended,

and also upon an implied contract hetween the plaintiff and

the United States arising from his acceptance and dis-

charge of the duties of such office as aforesaid.

XI. Plaintiff further states that he is the legal owner of

the claim for said compensation so deducted and that there

has been no assignment of the whole or any part thereof ;

that so far as he knows, no action has been had thereon

either in the Congress or in any of the Departments of the

Government; that he is justly entitled to the amount

claimed, excluding all just credits and offsets; that he has

at all times borne true faith and allegiance to the Govern-

ment of the United States, and has not at any time volun-

tarily aided, abetted or given encouragement to rebellion

against it.

X11. Plaintiff further states that on or about May 25th,

1903, in the ease of Harriet T. James v. United States (38

Ct. Cls, 615) this Court, in a earefully considered opinion

rendered by ‘Judge Howry, reviewed the status of said

[fol.14] Supreme Court of the District of Columbia and

held that it was one of the inferior courts of the United

States permanently established under Section 1, Art. TIT,

of the Constitution—a repository of a part of the judicial

power of the United States—and that the Justices thereof

were entitled to the constitutional guarantee of judicial in-

dependence arising from tenure of office and permanence in

salary and that such court was not merely a legislative crea-

tion wholly established under the exclusive power of legis-

lation over the Distrie: of Columbia conferred upon the

Congress by Section &, Article T, of the Constitution. Upon

appeal to the Supreme Court of the United States (202

U.S. 401) that Court held that the statute in question cov-

10

ered the compensation payable to Justice James without

passing upon or disaffirming the views expressed by this

Court as to the constitutional character of the Supreme

Court of the District of Columbia.

As the ruling and decision of the Comptroller General,

which resulted in the deduction aforesaid and has given

rise to this claim, is in direct conflict with the decision of this

Court in the James case and cites the decision of the Su-

preme Court in Ex parte Bakelite Corporation (279 U. S.

458), in which there are some expressions seemingly in con-

flict with the decision in the James case, and also with the

decision of the Court of Appeals of the District of Columbia

in Pitts v. Peak, 50 Fed. (2d) 485, and the decision of the

Supreme Court of the United States in Claiborne-Annapolis

Ferry Company v. United States, 285 U. S. 382 (in which

said Pitts case is cited with approval), and as the questions

| fol. 15] involved in this and the companion case instituted

on behalf of the Justices of the Court of Appeals of the Dis-

trict of Columbia are of great importance not only to the

Justices particularly concerned but also to the Bar and citi-

zens of the Distriet of Columbia, as well as to the National

Government, and as it is necessary to all concerned that

there should be a prompt determination of the status of the

courts of the District of Columbia, and, furthermore. as

there can be no dispute about the facts, plaintiff respectfully

requests that this Court certify the questions of law in-

volved to the Supreme Court of the United States for eon-

sideration and decision under the provisions of Section 3(a)

of the Aet of February 13th, 1925.

XIII. Wherefore, the premises considered, plaintiff prats

the award and judgment of this Honorable Court that he is

entitled to have and recover of the United States the sum of

Five Hundred Dollars ($500), as above demanded, and that

he may be given such other and further relief as the nature

of his case may require or the Court may deem just.

Daniel W. O’Donoghue, Plaintiff. John S. Flan-

nervy, Daniel W. O’Donoghue, Jr., Attorneys for

Plaintiff. John W. Davis, George FE. Hamilton, of

Counsel.

ffol. 16] Daly sworn to by Daniel W. O'Donoghue. Jurat

omitted in printing.

11

[fols. 17 & 18] Cuerk’s CERTIFICATE

I, Willard L. Hart, Chief Clerk of the Court of Claims of

the United States, do hereby certify that the foregoing cer-

tifieate in the case of Daniel W. O’Donoghue v. The United

States, No. 42,232, was duly filed and entered of record in

my office by order of said court, and as directed by said

court, the said certificate is by me transmitted to the Su-

preme Court of the United States for its action thereon.

In testimony whereof I hereunto subscribe my name and

affix the seal of the Court of Claims of the United States, at

my office in Washington, D. C., this 24th day of February,

A. D. 1933.

Willard L. Hart, Clerk Court of Claims of the United

States. (Seal Court of Claims.)

Endorsed on cover. File No. 37,426. Court of Claims.

Term No. 729. Daniel W. O’Donoghue, vs. The United

States. Certificate. Filed February 24, 1933. File No.

37,426.

(3053)

BEEN EE AON TE NEE IE ERY

eOPRRE

a

aa

CERTIFICATE

Supreme Court of the United States

OCTOBER TERM, 1932

No. 730

WILLIAM HITZ

vs.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF CLAIMS

FILED FEBRUARY 24, 1933

(37,427)

(37,427)

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1932

No. 730

WILLIAM HITZ

vs.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF CLAIMS

INDEN

Original Print

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Questions Certified... 6.66. eee eee ee cette eee ees 5 3

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Jupp & DETWEILER (INC.), PRINTERS, WASHINGTON, I). C.. FEBRUARY 27, 1935

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[fol. 1]

IN COURT OF CLAIMS OF THE UNITED STATES

No. 42233

Wituam Hirz

Vv.

Tue Unitrep STAtes

STATEMENT OF Facts AND CERTIFICATE

Messrs. John W. Davis, George E. Hamilton, and John

S. Flannery appeared for the plaintiff.

Messrs. H. B. Holland and Charles F. Kincheloe appeared

for the defendant.

Before Acting Chief Justice Green, Judge Littleton, Judge

Whaley (Judge Williams Taking no Part; Chief Justice

Booth Taking no Part on Account of Illness).

The Court of Claims hereby certifies that the record of

the above-entitled case now pending before it discloses the

following:

The plaintiff, William Hitz, has duly filed his petition in

the Court of Claims on the nineteenth day of January, 1933,

in which he elaims and asks judgment against the United

States in the sum of $1,250, as salary due him for the

months of July to December, 1932, inclusive, all of which

will more particularly appear from his said petition, a copy

of which accompanies this certificate and is marked ‘‘Ex-

hibit A’’.

|fol.2] The petition of plaintiff, among other things, al-

leges in substance, that on December 5, 1930, he was ap-

pointed by the President of the United States, an Associate

Justice of the Court of Appeals of the District of Columbia,

by and with the consent of the Senate, and on February 13,

1931, duly qualified as such Associate Justice and ever

since said date has been engaged in the performance of

his duties as such Associate Justice of the Court of Ap-

peals of the District of Columbia.

From and after the date of his appointment and entry

upon his duties he received a salary as Associate Justice

1—730

2

of the Court of Appeals of the District of Columbia at the

rate of $12,500 a year until June 30, 1952, pursuant to the

provisions of the Act of December 13, 1926, ‘‘to fix the

salaries of certain Judges of the United States’? (44 Stat.

919-920).

From and after July 1, 1932, and for the months of July,

August, September, October, November, and December,

1932, his salary and compensation was reduced twenty per

cent pursuant to a ruling of the Comptroller General, and

by reason of which $1,250 of his salary for the period

above mentioned is unpaid. The ruling of the Comptroller

General was based upon the Act approved June 30, 1932,

making appropriations for the legislative branch of the

Government for the fiscal year ending June 30, 1933 (47

Stat. 382, 399), in which was incorporated certain pro-

visions known as the Economy Bill. In said ruling, the

Comptroller General held, among other things, that the

[fol. 3] Supreme Court and Court of Appeals of the Dis-

trict of Columbia were ‘legislative’? and not ‘‘constitu-

tional’’ courts entitled to the protection of Section 1, Ar-

ticle II], of the Constitution, and that the compensation of

Justices thereof could be diminished.

Plaintiff further avers in his petition that the said courts

of the District of Columbia are inferior courts of the United

States, created and established by virtue of the provisions

of Article III, Section 1, of the Constitution thereof, and by

reason of the provisions therein contained the aforesaid

deduction from his compensation was contrary to the pro-

visions of the Constitution and unlawful.

Plaintiff is the owner of the claim, of which there has

been no assignment or transfer and has at all times borne

true allegiance to the Government of the United States and

never in any way voluntarily aided, abetted, or given en-

couragement to rebellion against the said Government, and

is a citizen of the United States.

To this petition, the defendant has filed a demurrer ou

the following grounds:

“1. The petition does not state a cause of action against

the defendant within the jurisdiction of this Court.

2. The petition does not state a cause of action against

[fol. 4] the defendant.

———————— -

9

vw

3 The defendant specially demurs to said petition for

the reasons that—

(a) The justices of the Court of Appeals in the District

of Columbia are not judges of ‘inferior courts’ within the

meaning of Section 1 of Article 3 of the Constitution of

the United States, and are, therefore, not ‘judges whose

compensation may not, under the, Constitution, be dimin-

ished during their continuance in office’ within the mean-

ing of Section 107 (a) (5) of the Act of June 30, 1952,

c. 314, 47 Stat. 382, 402.

(b) Said petition does not set forth facts sufficient to

give rise to an implied agreement between plaintiff and de-

fendant that plaintiff’s compensation should not be reduced

during his continuance in office.

(c) Plaintiff's compensation being payable under the Act

of June 29, 1932, c. 308, 47 Stat. 343, 368, out of revenues

appropriated for activities of the District of Columbia,

plaintiff’s sole cause of action, if any, is against the Dis-

trict of Columbia and is, therefore, not within the jurisdic-

tion of this Court.”’

The defendant, by the filing of this demurrer, admits the

facts stated in the petition to be true, and upon the record

before it the Court finds it necessary for a proper disposi-

tion of the case that certain constitutional questions should

be determined. These constitutional questions are as fol-

lows:

{fol.5| QUESTIONS CERTIFIED

1. Does Section 1, Article ITI, of the Constitution of the

United States apply to the Court of Appeals of the District

of Columbia and forbid a reduction of the compensation of

the Justices thereof during their continuance in office?

II. Can the compensation of a Justice’ of the Court of

Appeals of the District of Columbia be lawfully diminished

during his continuance in office?

Ii is respectfully requested that the Supreme Court of

the United States give appropriate instructions on the

above questions and certify and transmit the same to the

2—730

Oe Wate nea

Court of Claims of the United States for its guidance in the

further progress of the case.

Wm. R. Green, Acting Chief Justice. Benjamin I.

Littleton, Judge. Richard S. Whaley, Judge.

[fol. 6] Exuieir ‘‘A’’ ro CERTIFICATE

In Court or CLaims oF THE UNrrep States

No. 42233

Wu.uiam Hrrz

v.

Tue Untrep States

PETITION

The plaintiff, William Hitz, respectfully states:

I. He is a citizen of the United States and a resident of

the District of Columbia.

Il. Plaintiff was appointed by the President an Associate

Justice of the Court of Appeals of the District of Columbia

December 5th, 1930, duly confirmed by the Senate January

28th, 1931, and qualified on, to wit, February 13th, 1931

(under a commission dated February Sth, 1931), and ever

since has been actively engaged in the performance of the

duties of such Associate Justice.

(fol. 7] ILI. Plaintiff was appointed, confirmed and com-

missioned to hold said office during good behavior and at

the time of his appointment the salary of the office of an

Associate Justice of the Court of Appeals of the District

of Columbia was permanently fixed at the rate of Twelve

Thousand Five Hundred Dollars ($12,500) per annum hy

the Act of Congress approved December 13th, 1926, ‘to tix

the salaries of certain Judges of the United States’? (44

Stats. 919-920),

Under the provisions of Section 714 of the Revised Stat-

utes of the United States, as amended—which was derived

from the Act of April 10th, 1869 (C22, See. 5,16 Stats, 45),

and is now Section 260 of the Judicial Code and Section 375

Pig

~-

”

of the United States Code-—as further compensation for

services rendered and to be rendered, the plaintiff, after

having held a commission as Justice of said Court for at

loust ten years continuously, and upon attaining the age of

70 vears, was given the right to resign and to thereafter

receive during the residue of his natural life the salary

payable at the time of such resignation for the office that he

then hold, or, instead of resigning, to retire from active

cervice on the Bench upon the salary of which he was in

receipt at the time of such retirement.

iV. Plaintiff further states that at the time of his ap-

pointment he was, and had been for many years, a Justice

of the Supreme Court of the District of Columbia, and had

frequently been called upon to consider the history aud

status of the Courts of said District, that when tendered the

position upon the Court of Appeals of the District of

{fol. 8} Columbia he understood and believed, from his

knowledge of the decisions of this Court and of the Su-

preme Court of the United States, that said Courts of the

District of Columbia were inferior Courts of the United

States created under Section 1, Art. 111, of the Constitu-

tion. and that under Section 1 of said Article he would

receive a compensation which could not be diminished dur-

ine his continuance in said office of Associate Justice of the

Court of Appeals and that when eligible to retire or resign

under the Retirement Act aforesaid he would continue

thereafter to receive for the remainder of his life the com-

pensation to which he was entitled on the day of such

retirement or resignation without diminution.

V. From the date of his appointinent and qualification

plaintiff was paid the salary of the office as so fixed to and

including December 31st, 1932, less deductions hereinafter

mentioned. By the Act ‘making appropriations for the

vovernment of the Dist riet of Columbia and other activities

chargeable in whole or in part against the revenues of such

District for the fiscal year ending June 30th, 1933, and for

other purposes,’? approved June 29th, 1932 (47 Stats. 343,

368), appropriation was made by the Congress to pay the

compensation of the plaintiff and other Justices of the

various Courts in the District of Columbia, and plaintiff is

informed and avers that there are sufficient funds in the

Treasury of the United States available for such purpose.

Gp tee ee

In the Act approved June 30th, 1932, ‘‘making appropria-

tion for the legislative branch of the Government for the

[fol. 9] fiscal year ending June 30th, 1933’’ (47 Stats. 382,

399), the Congress incorporated certain provisions known

as the Economy Bill and on or about the 13th of July,

1932, as plaintiff is informed and avers, the Comptroller

General of the United States mace a ruling in which he held,

among other things, that the Court of Appeals and Supreme

Court of the District of Columbia were ‘‘legislative’’ and

not ‘‘constitutional’’ Courts entitled to the protection of

Section 1, Art. III, of the Constitution, and that the com-

pensation of the Justices thereof whether active, retired

or resigned, could be diminished.

The Disbursing Officer of the Department of Justice pur-

suant to said ruling of the Comptroller General reduced the

aforesaid annual compensation to which plaintiff was en-

titled by the deduction of twenty per cent (20%) thereof

and, notwithstanding his protest, plaintiff was paid at this

reduced rate for the months of July, August, September,

October, November and December, 1932, whereby he has

suffered a loss of compensation to which he is justly en-

titled in the sum of Twelve Hundred and Fifty Dollars

($1,250) and is informed that similar deductions will con-

tinue to be made in the future. Plaintiff is also informed

and avers that similar deductions have been made and will

continue to be made from the salaries of his Associate

Justices.

VI. Plaintiff is advised and avers that the ruling of the

Comptroller General aforesaid, and the deductions from

ihe salary of plaintiff made by the disbursing officer of the

Department of Justice pursuant thereto, are contrary to

[fol. 10] and in direct violation of the terms of the so-called

Keonomy Bill of June 30, 1932, aforesaid, in that the said

act specifically exeepts from the operation of the pro-

Visions thereof judges whose compensation may not, under

the Constitution, be diminished during their continuance

in office; that plaintiff is such a judge whose compensation

may not, under the Constitution, be diminished during his

continuance in office; and that therefore the said ruling

of the Comptroller General, and the deductions of the dis-

bursing officer of the Department of Justice pursuant

thereto, are contrary to law and illegal.

ax

7

VIL. Plaintiff is advised and avers that the ruling of the

Comptroller General that the salary of plaintiff may be

diminished during his continuance in office, and the dedue-

tions aforesaid of the disbursing officer of the Department

of Justice from the salary of plaintiff resulting in diminu-

tion of plaintiff’s compensation during his continuance in

office, contravene the Constitution of the United States and

are therefore unconstitutional, illegal, and void, in that

plaintiff having been appointed to serve during good be-

havior may not be removed except by impeachment and his

compensation may not, under the Constitution, be dimin-

‘shed during his continuance in office.

VIII. Plaintiff is advised and avers that the ruling of

the Comptroller General that the salary of plaintiff may be

diminished during his continuance in office, and the deduc-

tions aforesaid of the disbursing officer of the Department

(fol. 11] of Justice from the salary of plaintiff resulting in

diminution of plaintiff’s compensation during his con-

tinuance in office, contravene the Constitution of the United

States and are therefore unconstitutional, illegal, and void,

in that plaintiff is a judge of an inferior court of the United

States within the terms of Article Il] of the Constitution,

namely, the Court of Appeals of the District of Columbia,

whose compensation may not be diminished during his

continuance in office.

Plaintiff states that the said Court of Appeals of the

District of Columbia is vested by acts of Congress with all

the jurisdiction and all the power conferred by the Consti-

tution under Article HI on the United States, and that the

powers SO conferred on the United States by said Article

have been exercised by the said Court of Appeals from

its organization and by the Supreme Court of the District of

Columbia, and its predecessor courts, from the establish-

ment of the Government. Plaintiff therefore charges that

1 the organization of the courts of the District of Colum-

bia, including the said Court of Appeals, the Congress of

the United States acted by virtue of Article III of the Con-

-titution and thereby constituted said courts inferior courts

of the United States, and to the extent and only to the extent

that Congress has enlarged and extended the powers of said

courts did it act under any other than Article II.

SBP ON area a eee GEST ANL nr GR

8

Plaintiff therefore avers that the said Court of Appeals

of the District of Columbia, to the extent that it exercises

all the judicial powers granted to the United States, is an

inferior court of the United States under said judiciary

[fol. 12] provision of the Constitution, and that it is none

the less an inferior court under the said article of the Con-

stitution because, by reason of its location at the seat of

Government, Congress, under Article 1, Section &, has con-

ferred upon it powers and jurisdiction which it may not

confer upon other Federal courts.

IX. Plaintiff further states that while reluctant to insti-

tute a suit which may result in personal benefit to himself,

he feels that it is his duty to the Court, to the Bar, to the

citizens of the District of Columbia and to the people of the

United States to have the status of the Court of Appeals, as

an important national as well as local tribunal, defined and

settled as soon as it may be possible.

X. Plaintiff is further advised and avers that his right to

recover the amount of compensation so unlawfully dedueted

is founded upon the Constitution of the United States, the

acts of Congress hereinbefore referred to fixing the com-

pensation of the Justices of the Court of Appeals of the

District, upon Section 714 of the Revised Statutes of the

United States, as amended, and also upon an implied con-

tract between the plaintiff and the United States arising

from his acceptance and discharge of the duties of such office

as aforesaid.

XI. Plaintiff further states that he is the legal owner of

the claim for said compensation so deducted and that there

has been no assignment of the whole or any part thereof;

that so far as he knows, no action has been had thereon

[fol. 13] either in the Congress or in any of the Departments

of the Government: that he is justly entitled to the amount

claimed, excluding all just credits and offsets: that he has

at all times borne true faith and allegiance to the Govern-

ment of the United States, and has not at any time voluntar-

ilv aided, abetted or given encouragement to rebellion

against it.

XII. Plaintiff further states that on or about May 25th,

1903, in the case of Harriet T. James v. United States (38

: ae

ak. |

9

(‘t. Cls. 615), this Court, in a carefully considered opinion

rendered by Judge Howry, reviewed the status of said Su-

preme Court of the District of Columbia and held that it

was one of the inferior courts of the United States perma-

nently established under Section 1, Art. ILI, of the Consti-

tution—a repository of a part of the judicial power of the

United States—and that the Justices thereof were entitled

to the constitutional guarantee of judicial independence

arising from tenure of office and permanence in salary and

that such court was not merely a legislative creation wholly

established under the exclusive power of legislation over the

District of Columbia conferred upon the Congress by Sec-

tion &, Article I, of the Constitution. Upon appeal to the

Supreme Court of the United States (202 U.S, 401) that

Court held that the statute in question covered the compen-

sation payable to Justice James without passing upon or

3 disaffirming the views expressed by this Court as to the con-

stitutional character of the Supreme Court of the District of

4 Columbia.

As the ruling and decision of the Comptroller General,

which resulted in the deduction aforesaid and has @ven rise

: |fol. 14] to this claim, is in direct conflict with the decision

: of this Court in the James case and cites the decision of the

Supreme Court in ex parte Bakelite Corporation (205 U.S.

438), in which there are some expression= seemingly in con-

flict with the decision in the James case and also with the

decision of the Court of Appeals of the District of Columbia

in Pitts v. Peak, 50 Fed. (2d) 485, and the decision of the

Supreme Court of the United States in Claiborne-Annapolis

Ferry Company v. United States, 285 U.S. 382 (in which

said Pitts ease is cited with approval), and as the questions

involved in this and the companion case instituted on behalf

of the Justices of the Supreme Court of the District of Co-

lumbia are of great importance not only to the Justices par-

ticularly concerned but also to the Bar and citizens of the

District of Columbia, as well as to the National Government,

and as if is necessary to all concerned that there should be a

prompt determination of the status of the courts of the Dis-

trict of Columbia, and, furthermore, as there can be no dis-

pute about thefacts—plaintiff respectfully requests that this

Court certify the questions of law involved to the Supreme

Court of the United States for consideration and decision

10

under the provisions of Section 3 (a) of the Act of February

13th, 1925,

XIII. Wherefore, the premises considered, plaintiff prays

the award and judgment of this Honorable Court that he is

entitled to have and recover of the United States the sum of

Twelve Hundred and Fifty Dollars ($1,250), as above de-

manded, and that he may be given such other and further

[fol. 15] relief as the nature of his case may require or the

Court may deem just.

William Hitz, Plaintiff. John W. Davis, George

K. Hamilton, John S. Flannery, Attorneys for

Plaintiff.

Duly sworn to by William Hitz. Jurat omitted in

printing.

[fols. 16.&17] CLERK’s CERTIFICATE

I, Willard L. Hart, Chief Clerk of the Court of Claims of

the United States, do hereby certify that the foregoing cer-

tificate in the case of William Hitz v. The United States,

No, 42,253, was duly filed and entered of record in my office

by order of said court, and as directed by said court, the said

certificate is by me transmitted to the Supreme Court of the

United States for its action thereon.

In testimony whereof | hereunto subscribe my name and

affix the seal of the Court of Claims of the United States, at

my office in Washington, D. C., this 24th day of February,

A. D., 1933.

Willard L. Hart, Clerk Court of Claims of the United

States.

(Seal Court of Claims.)

Endorsed on cover: File No. 37,427. Court of Claims.

Term No. 730. William Hitz vs. The United States. Cer-

tificate. Filed February 24, 1933. File No. 37,427.

(3054)

LH AE SOEL E2 RAMAN ONG Ai