Wingard v. United States/Opinion of the Court

Substantially the same questions are presented in this case that have been determined in McAllister v. U.S., 11 Sup. Ct. Rep. 949, (just decided.) Upon the authority of that case, and for the reasons stated in the opinion, the judgment is affirmed.

FIELD, J., (dissenting.) I dissent from the judgment of the court in this case on the grounds stated in my dissenting opinion in McAllister v. U.S., 11 Sup. Ct. Rep. 949. I may also add to those grounds the fact that, by the laws of the United States applicable to all the territories, it is provided that for each territory there shall be appointed a governor, a secretary, a chief justice, and two associate justices of its supreme court, an attorney, and a marhal, and that their terms shall be four years, and until their successors are appointed and qualified, with this difference: that it is declared with reference to all the officers, except the justices of the supreme court, that they shall hold their offices for that term, unless sooner removed by the president; but that qualification is not added to the term of the justices. Rev. St. §§ 1841, 1843, 1864, 1875-1877. It is also to be observed that the acts of congress organizing the different territories of the United States, and providing for judicial tribunals therein, from the foundation of the government down to the present time, with three exceptions, have fixed the term of the judicial officers of the territories at definite period absolutely, without any conditions, or simply with the condition 'upon good behavior.' In two of these exceptions, where the words 'unless sooner removed' are added, the power of removal is not vested in the president, but left to be exercised under the general law of the country applicable to such officers; that is, by impeachment, or by the joint action of the president and congress, after full opportunity is given to the accused of being heard upon the grounds of complaint. In the third exception the words added are, 'unless sooner removed by the president with the consent of the senate of the United States,' which implies a previous consideration by the senate of the grounds of removal, and this would usually be accompanied with notice to the accused, and an opportunity afforded to him of being heard thereon. See note below. From this statement it is apparent that the general legislation of congress has been against making the tenure of the

Mississippi: 'During good behavior.' Act 7th April, 1798, (1 St. 550, § 3;) Act 27th March, 1804, (2 St. 301, § 2;) Act 2d March, 1810, (2 St. 564, § 2.) South of Ohio: 'During good behavior.' Act 26th May, 1790, (1 St. 123, § 1.) Indiana: 'During good behavior.' Act 7th May, 1800, (2 St. 59, § 3.) Orleans: 'Four years,' absolute, Act 26th March, 1804, (2 St. 284, § 5.) Louisiana, (district:) 'During good behavior.' Act 26th March, 1804, (2 St. 287, § 12.) Michigan: 'During good behavior.' Act 11th Jan., 1805, (2 St. 309, § 3;) Act 30th Jan., 1823, (3 St. 722, § 1.) Illinois: 'During good behavior.' Act 3d Feb., 1809, (2 St. 515, § 3.) Missouri: Four years, 'unless sooner removed.' Act 4th June, 1812, (2 St. 746, § 10;) Act 27th Jan. 1814, (3 St. 95, § 1.) Alabama: 'During good behavior.' Act 3d March, 1817, (3 St. 372, §§ 2, 3.) Arkansas: 'Four years, unless sooner removed.' Act 2d March, 1819, (3 St. 495, § 7.) Florida, (judges not appointed by the president;) Act 30th March, 1822, (3 St. 656, § 6;) Act 26th May, 1824, (4 St. 45, § 1;) Act 21st Jan., 1829, (4 St. 333, § 4.) Wisconsin: 'During good behavior.' Act 20th April, 1836, (5 St. 13, § 9.) Iowa: 'Four years,' absolute. Act 12th, June, 1838, (5 St. 237, 238, § 9.) Oregon: 'Four years,' absolute. Act 14th Aug., 1848, (9 St. 326, § 9.) Minnesota: 'Four years,' absolute. Act 3d March, 1849, (9 St. 406, § 9.) Utah: 'Four years,' absolute. Act 9th Sept., 1850, (9 St. 455, § 9;) Act 25th June, 1888, (25 St. 204, § 2.) New Mexico: 'Four years,' absolute. Act 9th Sept., 1850, (9 St. 449, § 10.) Washington: 'Four years,' absolute. Act 2d March, 1853, (10 St. 175, § 9;) Act 4th July, 1884, (23 St. 102, § 10.) judicial office in courts of record of the territories subject to the will of the president. The last exception is the only one in which any authority in that respect could be exercised by him, and that is to be with the conjoint action of the senate.

I am authorized to say that Justices GRAY and BROWN agree with me in this dissent.

NOTE. The following list exhibits the terms of the judges and the organic acts for all the territories: North-West of Ohio: 'During good behavior.' Ordinance of 1789, (1 St. 51, note.)

Nebraska: 'Four years,' absolute. Act 30th May, 1854, (10 St. 280, § 9.) Kansas: 'Four years,' absolute. Act 30th May, 1854, (10 St. 286, § 27.) Colorado: 'Four years,' absolute. Act 28th Feb., 1861, (12 St. 174, § 9.) Nevada: 'Four years,' absolute. Act 2d March, 1861, (12 St. 212, § 9;) Act 2d March, 1863, (12 St. 700, § 3.) Dakota: 'Four years,' absolute. Act 2d March, 1861, (12 St. 241, § 9;) Act 4th July, 1884, (23 St. 101, § 2;) Act 9th Aug., 1888, (25 St. 398, § 2.) Arizona: 'Four years,' absolute. Act 24th Feb., 1863, (12 St. 665, § 2.) Idaho: 'Four years,' absolute. Act 3d March, 1863, (12 St. 811, § 9.) Montana: 'Four years,' absolute. Act 26th May, 1864, (13 St. 88, § 9;) Act 10th July, 1886, (24 St. 138, § 1.) Wyoming: 'Four years, unless sooner removed by the president with the consent of the senate of the United States.' Act 25th July, 1868, (15 St. 178, § 9.) Alaska: 'Four years,' absolute.