A-51887, NOVEMBER 11, 1933, 13 COMP. GEN. 135

A-51887: Nov 11, 1933

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THAT THE PRESIDENT WAS WITHOUT POWER TO REMOVE HIM. THAT HE IS ENTITLED TO THE SALARY FIXED FOR A COMMISSIONER OF THE FEDERAL TRADE COMMISSION FOR THE PERIOD FROM OCTOBER 7. WAS PROVIDED THAT THE TERMS OF SUCH COMMISSIONERS SHOULD BE FOR 7 YEARS. HUMPHREY THAT THE PRESIDENT WAS WITHOUT AUTHORITY TO REMOVE HIM FROM OFFICE BEFORE THE EXPIRATION OF HIS TERM. IT IS TO BE OBSERVED THAT THE PHRASE ANY COMMISSIONER "MAY BE REMOVED BY THE PRESIDENT FOR INEFFICIENCY. IS PRACTICALLY IDENTICAL WITH LANGUAGE CONTAINED IN SECTION 12 OF THE ACT OF JUNE 10. THIS LANGUAGE WAS CONSIDERED IN SHURTLEFF V. IT WAS HELD THAT THE PRESIDENT HAD THE RIGHT TO EFFECT REMOVAL OF THE GENERAL APPRAISER IN THAT CASE WITHOUT ASSIGNING THE CAUSE OF REMOVAL AS BEING FOR "INEFFICIENCY.

A-51887, NOVEMBER 11, 1933, 13 COMP. GEN. 135

FEDERAL TRADE COMMISSION - REMOVAL OF MEMBER - COMPENSATION OF SUCCESSOR WHILE SECTION 1 OF THE ACT OF SEPTEMBER 26, 1914, 38 STAT. 717, PROVIDES THAT A COMMISSIONER OF THE FEDERAL TRADE COMMISSION "MAY BE REMOVED BY THE PRESIDENT FOR INEFFICIENCY, NEGLECT OF DUTY, OR MALFEASANCE IN OFFICE," THE PRESIDENT HAS THE RIGHT TO REMOVE SUCH COMMISSIONER WITHOUT ASSIGNING THE CAUSE OF REMOVAL. THE RIGHT TO SALARY OF THE APPOINTED AND QUALIFIED SUCCESSOR MAY NOT BE QUESTIONED BECAUSE OF ANY CONTENTION TO THE EFFECT THAT THERE EXISTED NO VACANCY TO WHICH HE COULD BE APPOINTED.

ACTING COMPTROLLER GENERAL GOLZE TO THE DISBURSING CLERK OF THE FEDERAL TRADE COMMISSION, NOVEMBER 11, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 3, 1933, ENCLOSING A MEMORANDUM OF OCTOBER 27, 1933, FROM THE SECRETARY OF THE FEDERAL TRADE COMMISSION TO THE EFFECT THAT MR. GEORGE C. MATHEWS OF WISCONSIN HAD BEEN APPOINTED BY THE PRESIDENT A FEDERAL TRADE COMMISSIONER FOR THE TERM EXPIRING SEPTEMBER 25, 1938, DURING THE PLEASURE OF THE PRESIDENT, FOR THE TIME BEING, AND UNTIL THE END OF THE NEXT SESSION OF THE SENATE OF THE UNITED STATES, AND THAT MR. MATHEWS TOOK THE OATH OF OFFICE AND ENTERED ON DUTY OCTOBER 27, 1933, AND REQUESTING DECISION WHETHER THE SALARY FOR THE PERIOD OCTOBER 27 TO 31, 1933, IN THE AMOUNT OF $94.44 MAY BE PAID TO MR. MATHEWS NOTWITHSTANDING THE PROTESTS OF MR. WILLIAM E. HUMPHREY AS PER HIS LETTERS OF OCTOBER 9 AND 17 AND NOVEMBER 2, 1933, ALSO ENCLOSED, URGING THAT HE REMAIN A MEMBER OF THE FEDERAL TRADE COMMISSION; THAT THE PRESIDENT WAS WITHOUT POWER TO REMOVE HIM; AND THAT HE IS ENTITLED TO THE SALARY FIXED FOR A COMMISSIONER OF THE FEDERAL TRADE COMMISSION FOR THE PERIOD FROM OCTOBER 7, 1933, TO THE DATE TO WHICH LAST PAID AND FOR THE REMAINDER OF HIS TERM EXPIRING SEPTEMBER 25, 1938.

SECTION 1 OF THE ACT OF SEPTEMBER 26, 1914, 38 STAT. 717, CREATED THE FEDERAL TRADE COMMISSION TO CONSIST OF FIVE COMMISSIONERS TO BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, NOT MORE THAN THREE OF WHOM SHOULD BE MEMBERS OF THE SAME POLITICAL PARTY. WAS PROVIDED THAT THE TERMS OF SUCH COMMISSIONERS SHOULD BE FOR 7 YEARS, EXCEPT THAT ANY PERSON CHOSEN TO FILL A VACANCY SHOULD BE APPOINTED ONLY FOR THE UNEXPIRED TERM OF THE COMMISSIONER WHOM HE SHALL SUCCEED AND THAT "ANY COMMISSIONER MAY BE REMOVED BY THE PRESIDENT FOR INEFFICIENCY, NEGLECT OF DUTY, OR MALFEASANCE IN OFFICE.' APPARENTLY, THE PRESIDENT REQUESTED THE RESIGNATION OF MR. WILLIAM E. HUMPHREY AS A MEMBER OF THE FEDERAL TRADE COMMISSION, AND UPON HIS REFUSAL TO RESIGN THE PRESIDENT REMOVED HIM FROM OFFICE, EFFECTIVE OCTOBER 7, 1933, AFTER THE ADJOURNMENT OF THE LAST SESSION OF CONGRESS, AND THEREAFTER APPOINTED MR. GEORGE C. MATHEWS OF WISCONSIN AS HIS SUCCESSOR. MR. MATHEWS TOOK THE OATH OF OFFICE AND ENTERED UPON HIS DUTIES ON OCTOBER 27, 1933. IT SEEMS TO BE THE CONTENTION OF MR. HUMPHREY THAT THE PRESIDENT WAS WITHOUT AUTHORITY TO REMOVE HIM FROM OFFICE BEFORE THE EXPIRATION OF HIS TERM.

IT IS TO BE OBSERVED THAT THE PHRASE ANY COMMISSIONER "MAY BE REMOVED BY THE PRESIDENT FOR INEFFICIENCY, NEGLECT OF DUTY, OR MALFEASANCE IN OFFICE," CONTAINED IN SECTION 1 OF THE ACT OF SEPTEMBER 26, 1914, CREATING THE FEDERAL TRADE COMMISSION, IS PRACTICALLY IDENTICAL WITH LANGUAGE CONTAINED IN SECTION 12 OF THE ACT OF JUNE 10, 1890, COMMONLY CALLED THE CUSTOMS ADMINISTRATIVE ACT, 26 STAT. 131, 136. THIS LANGUAGE WAS CONSIDERED IN SHURTLEFF V. UNITED STATES, 189 U.S. 311, 319, AND IT WAS HELD THAT THE PRESIDENT HAD THE RIGHT TO EFFECT REMOVAL OF THE GENERAL APPRAISER IN THAT CASE WITHOUT ASSIGNING THE CAUSE OF REMOVAL AS BEING FOR "INEFFICIENCY, NEGLECT OF DUTY, OR MALFEASANCE IN OFFICE.' SEE ALSO PARSONS V. UNITED STATES, 167 U.S. 324; COMMONWEALTH EX REL. ATTORNEY GENERAL V. BENN, 284 PENN. 421, 442.

THE PRESIDENT HAS REMOVED MR. HUMPHREY AND APPOINTED MR. MATHEWS AS HIS SUCCESSOR, AND THE OTHER MEMBERS OF THE FEDERAL TRADE COMMISSION HAVE RECOGNIZED MR. MATHEWS AS THE SUCCESSOR OF MR. HUMPHREY AND HE IS REPORTED TO HAVE PERFORMED THE DUTIES OF HIS OFFICE.

YOU ARE ADVISED, THEREFORE, THAT MR. MATHEWS' RIGHT TO SALARY AS A MEMBER OF THE FEDERAL TRADE COMMISSION IS NOT NOW TO BE QUESTIONED BECAUSE OF ANY CONTENTION TO THE EFFECT THAT THERE EXISTED NO VACANCY TO WHICH HE COULD BE APPOINTED. SEE ALSO SECTION 1761, REVISED STATUTES OF THE UNITED STATES.