United States v. Germaine, October Term 1878

Factual and Procedural Background

The defendant was appointed by the Commissioner of Pensions to act as a civil surgeon under the Act of March 3, 1873, codified in the Revised Statutes as section 4777. That statute empowered the Commissioner of Pensions to appoint, at his discretion, civil surgeons to conduct periodical examinations of pensioners required by law and to examine applicants for pensions when the Commissioner deemed such examinations necessary. The statute fixed a fee of two dollars for each examination and related certificates, to be paid by the pension-paying agent in the relevant district out of funds appropriated for the payment of pensions, under regulations prescribed by the Commissioner of Pensions.

The defendant was indicted in the District of Maine for extortion, based on allegations that he took fees from pensioners to which he was not legally entitled. The indictment relied on section 12 of the Act of 1825, which provides that every officer of the United States who is guilty of extortion under color of office shall be punished by fine or imprisonment, according to the aggravation of the offense.

After the indictment was returned and remitted into the Circuit Court of the United States for the District of Maine, the judges of that court divided in opinion on two questions: (1) whether the defendant’s appointment as a civil surgeon made him an “officer of the United States” within the meaning of the 1825 act, and (2) whether, upon demurrer to the indictment, judgment should be rendered for the United States or for the defendant. The case came before the Supreme Court on a certificate of this division of opinion.

Legal Issues Presented

1. Whether a civil surgeon appointed by the Commissioner of Pensions under section 4777 of the Revised Statutes is an “officer of the United States” within the meaning of section 12 of the Act of 1825 punishing “every officer of the United States who is guilty of extortion under color of his office.”
2. Whether the Commissioner of Pensions is a “head of a department” within the meaning of Article II, section 2, of the Constitution, such that he may constitutionally appoint officers of the United States as “inferior officers.”
3. Whether, in light of the foregoing, judgment on the defendant’s demurrer to the indictment should be entered for the United States or for the defendant.

Arguments of the Parties

Defendant's Arguments

• The defendant relied on Article II, section 2, of the Constitution, which prescribes how officers of the United States must be appointed. That provision states that the President shall nominate, and by and with the advice and consent of the Senate shall appoint, certain principal officers, and that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.
• The defendant contended that this constitutional provision makes comprehensive provision for the appointment of all officers of the United States, and that he was not appointed in any of the modes there specified. Therefore, he argued, he could not be deemed an “officer” of the United States, even if he was an agent or employee rendering service to the government and paid by it.
• He implied that Congress, when intending to reach persons other than constitutionally appointed “officers,” uses broader terms such as “agent,” “servant,” or “person in the service or employment of the government,” as in other statutes.

United States' Arguments

• Counsel for the United States contended that the Commissioner of Pensions should be regarded as the “head of a department” within the meaning of Article II, section 2, so that the defendant’s appointment by the Commissioner would be a constitutionally valid appointment of an inferior officer.
• The opinion also indicates that United States v. Hartwell, 6 Wall. 385, was relied upon as support for the proposition that the defendant was an officer of the United States, though the Court ultimately distinguished that case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the constitutional framework for the appointment of officers. Article II, section 2, divides officers of the United States into two classes. The primary class includes ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for in the Constitution; these must be nominated by the President and confirmed by the Senate. For “inferior officers,” Congress may, by law, vest the appointment in the President alone, in the courts of law, or in the heads of departments.

The Court concluded that this constitutional provision was intended to cover all persons who can be said to hold an office under the government. Because the Constitution is the supreme law, any federal statute punishing “officers of the United States” must be read in harmony with the constitutional definition of “officer.” The Court found it “not to be supposed” that Congress, in enacting a criminal law directed at officers of the United States, meant to reach individuals not appointed in one of the constitutionally authorized modes. Where Congress intended to reach broader classes of persons, it used additional terms such as “agent” or “person in the service or employment of the government,” as exemplified by the sixteenth section of the Act of 1846 concerning embezzlement, which explicitly applied to “any officer or agent of the United States, and all persons participating in the act.”

The Court next considered whether the defendant had been appointed in one of the constitutionally permissible ways. He had not been appointed by the President or by a court of law. Thus, the question became whether the Commissioner of Pensions was a “head of a department” within the meaning of Article II, section 2.

To answer this, the Court analyzed the term “department” as used in the Constitution. The relevant clause appears in the article relating to the Executive, and the word “department” refers to a subdivision of executive power created for its convenient exercise. The Court noted that Congress, in creating the executive subdivisions, had called them “departments,” such as the Department of State, War, Interior, Treasury, and, more recently, Justice. Each of these has a Secretary or principal officer who is by law the head of the department.

The Court emphasized that the phrase “heads of departments” is used in association with the President and the courts of law, implying that it refers to these principal cabinet-level officers, and not to “inferior commissioners and bureau officers, who are themselves the mere aids and subordinates of the heads of the departments.” The Court pointed out that, in practice, the thousands of clerks in the executive departments are appointed by the heads of departments, not by bureau chiefs or commissioners within those departments.

Article II, section 2, also authorizes the President to require written opinions of the “principal officer in each of the executive departments” relating to the duties of their offices. The Court reasoned that the word “department” has the same meaning in this clause as in the appointments clause, and that “principal officer” is the equivalent of “head of department.” While Presidents have customarily sought opinions from cabinet secretaries, the Court was unaware of any instance in which the President officially required such written opinions from bureau heads, commissioners, or auditors. From this, the Court inferred that the Commissioner of Pensions is not a “head of a department” within the constitutional meaning.

Turning back to United States v. Hartwell, the Court explained that there was no inconsistency. In Hartwell, the appointment was approved by the Assistant Secretary of the Treasury, acting as head of that department, which satisfied the constitutional requirement for an officer of the United States.

The Court then examined the nature of the defendant’s employment to determine whether he was an officer. Citing the discussion in Hartwell, the Court reiterated that “office” involves tenure, duration, emolument, and duties, and that the duties of an officer are “continuing and permanent, not occasional or temporary.” Applying this standard, the Court found that the defendant’s duties as a civil surgeon were not continuing and permanent but “occasional and intermittent.” The civil surgeon acted only when called upon by the Commissioner of Pensions in specific cases, such as when a pensioner or claimant presented himself for examination. The volume of work could range from fifty examinations a year to none. The defendant was not required to maintain an office for public use, and he provided no bond and took no oath of office (so far as the record showed).

Regarding compensation, there was no regular appropriation for his pay as a salaried officer. Instead, he received a fee of two dollars for each certificate of examination, paid from funds appropriated for pension payments in his district under regulations set by the Commissioner. The Court characterized the defendant as “but an agent of the commissioner,” appointed and removable at the Commissioner’s pleasure, to procure information needed by the Commissioner in performing his own official duties. The Commissioner might appoint one or many such persons; their compensation could be minimal or more substantial, depending on the volume of examinations. There was no penalty for the defendant’s absence from duty or refusal to perform, other than the loss of the fee in a particular case.

To illustrate the point, the Court analogized that, if Congress required the Commissioner to appoint a person to supply each agency with fuel at a statutory price, that person would have no greater claim to be an officer of the United States than the civil surgeons appointed under the statute at issue. On these grounds, the Court concluded that the defendant did not occupy an “office” under the United States and therefore was not an “officer of the United States” within the meaning of the criminal extortion statute.

Holding and Implications

Holding: The Court held that the defendant, a civil surgeon appointed by the Commissioner of Pensions under section 4777 of the Revised Statutes, is not an officer of the United States. The Court further held that the Commissioner of Pensions is not a “head of a department” within the meaning of Article II, section 2, of the Constitution. Accordingly, the Court answered the certified question in favor of the defendant and directed that judgment on the demurrer to the indictment be entered in his favor, and that this be so certified to the Circuit Court.

Implications: The immediate consequence of the decision is that the defendant cannot be prosecuted under section 12 of the Act of 1825, which penalizes extortion by “officers of the United States,” because he is not such an officer under the constitutional and statutory framework. More broadly for the parties, the indictment fails as a matter of law on the demurrer. The opinion clarifies that civil surgeons appointed under section 4777 of the Revised Statutes are not officers of the United States and that the Commissioner of Pensions is not constitutionally categorized as a head of a department. It also distinguishes United States v. Hartwell and underscores the importance of constitutional modes of appointment and the nature and continuity of duties in determining who is an “officer” for purposes of federal criminal liability. The opinion does not discuss any further or more general policy or systemic implications.