# Prologue — O'Donoghue v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 1933
- **Citation:** 289 U.S. 516

## Text

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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ADUAUAONG COMEINENN 6 6.5 su eed hci bab UN wR VRS SORE od 5 3
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Exhibit “A’—Petition of Daniel W. O’Donoghue........ 6 4
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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

Certificate from Court of Claims... . 6... 60. eee eee eee eens 1 1
Statement of fFaCts..... ccc cccscccerseccsescececssoccs 1 1
Questions Certified... 6.66. eee eee ee cette eee ees 5 3
FuUASCR” KIGUATUPOS. .c .cccececccssce scene seescvesseses on) 4
Exhibit “A’°—Petition of Willinmn Hitz...........--5-- G 4
CRerk’s Certificate... occ. ccccssoesseessecccesesevsccees 16 10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0374%3A0. Public record. Not legal advice.