EX PARTE MATTER OF HENNEN, 38 U. S. 230 (1839)

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U.S. Supreme Court

Ex Parte Matter of Hennen, 38 U.S. 13 Pet. 230 230 (1839)

Ex Parte Matter of Hennen

38 U.S. (13 Pet.) 230


Mandamus. Motion for a rule on the District Judge of the Eastern District of Louisiana to show cause why a mandamus should not be issued requiring him to restore Duncan N. Hennen to the office of the clerk of the district court. The petition states the appointment of the relator to the office of clerk of the district court in 1834; the full and complete performance of his duties as cleric of the court until May 1837; the acknowledgment of the fidelity and capacity with which the duties of the office were performed, stated in writing by the district judge; and the appointment of another person to the office, from personal motives and the influence of friendship and a knowledge of the capacity of the person appointed to perform the duties of the office. The petition also states the performance of the duties of Clerk of the Circuit Court of the Eastern District of Louisiana under the appointment as clerk of the district court, and the offer to perform those duties after his asserted removal as clerk of the district court, and that, the judges of the circuit court being divided in opinion as to his right to exercise the office of clerk, the business of the circuit court was entirely suspended.

The appointment of clerks of courts properly belongs to the courts of law, and a clerk of the court is one of those officers contemplated by the provision in the Constitution giving to Congress the power to vest the appointment of inferior officers as they think proper. The appointing power designated by the Constitution in the latter part of the second section of the second article of the Constitution was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged.

It cannot be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. In the absence of all constitutional or statutory provision as to the removal of such officers, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.

The tenure of ancient common law offices and the rules and principles by which they are governed have no application to the office of the clerk of a district court of the United States. The tenure in those cases depends in a great measure upon ancient usage. But in the United States there is no ancient usage which can apply to and govern the tenure of offices created by the Constitution and laws. They are of recent origin, and must depend entirely on a just construction of our Constitution and laws, and the like doctrine is held in England, where the office is not an ancient common law office, but of modern origin, under some act of Parliament. In such a case, the tenure of the office is determined by the meaning and intention of the statute.

The law giving the district courts the power of appointing their own clerks does not prescribe any form in which this shall be done. The power vested in the court is a continuing power, and the mere appointment of a successor would per se be a removal of the prior incumbent, so far at least as his rights were concerned.

The Supreme Court can have no control over the appointment or removal of a clerk of the district court or entertain any inquiry into the grounds of the removal. If the judge is chargeable with any abuse of his power, the Supreme Court is not the tribunal to which he is answerable.

The Court having decided that the rule granted at the August term of the Court, held by MR. CHIEF JUSTICE TANEY, should be discharged, the counsel presented another petition to the Court setting forth the same facts as those stated in the petition, the matters of which are set forth in the report of the preceding case, with others.

The additional facts stated in the petition were that the petitioner is in the full and undisputed possession of the seal of the Circuit Court for the Eastern District of Louisiana, and of the records of the said circuit court.

Page 38 U. S. 231

That there is now pending in said circuit court a cause in which the petitioner, a citizen of the State of Louisiana, is the plaintiff and Rezin D. Shepherd, a citizen of Maryland, is the defendant; that the value of the property in controversy between petitioner and said Shepherd exceeds in amount the sum of six thousand dollars in cash. That in consequence of the disagreement between the judges of the circuit court, and the refusal of Judge Lawrence to allow the petitioner, the true and lawful clerk of said court, to perform the duties thereof, the petitioner is prevented from proceeding in said cause, and the petitioner is prevented from bringing the said cause up to this Court for its final decision.

The petitioner further states that the judges of the said circuit court continue to differ in opinion as to the legal rights of the petitioner and said John Winthrop to the offices of clerk of the district and circuit courts, so that no one does or can perform the duties of the office of clerk of the circuit court aforesaid, and that the suitors in said court are thereby delayed, and the administration of justice therein wholly suspended, and the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said circuit court wholly suspended and incapable of being exercised.

"All which evils are remediless at and by the ordinary proceeding before the said district or circuit courts and can only be terminated and redressed by the interposition of this Honorable Court by its extraordinary process of mandamus."

The petition prays that the court, after consideration, will award a writ of mandamus to be directed to the Honorable Philip K. Lawrence, Judge of the District court of the United States for the Eastern District of Louisiana, commanding him forthwith to restore the petitioner to his office of clerk of the District Court of the United States for the Eastern District of Louisiana.

By an agreement between the counsel for the relator and the judge of the District Court of Louisiana, the questions presented to the Court on the petition were argued, the usual notice being dispensed with.

Page 38 U. S. 256

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