Page 93 - Fruits from a Poisonous Tree

Mel Stamper 77

Pursuant to the Constitution, an “Officer of the United States” is one
who has been appointed with the Senate’s consent to an office established by
law. An inferior officer is appointed through the same method, except that
consent of the Senate is not necessary.
How has the Supreme Court construed this provision of the
Constitution? In United States v. Mouat, 124 U.S. 303, 8 S.Ct. 505 (1888),
the Supreme Court was required to determine whether a Navy paymaster’s
clerk was an “officer” who could recover traveling expenses as allowed by law
only for officers. Here, the Court was required to define the method for the
appointment of officers of the United States, and it held:
“[U]nder the constitution of the United States, all its officers were
appointed by the president, by and with the consent of the senate, or by a
court of law, or the head of a department; and the heads of the departments
were defined in that opinion to be what are now called the members of the
cabinet. Unless a person in the service of the government, therefore, holds
his place by virtue of an appointment by, the president, or of one of the
courts of justice or heads of departments authorized by law to make such an
appointment, he is not, strictly speaking, an officer of the United States.”
Since in this case the president did not appoint Mouat, the Court found
it essential to determine whether the head of a department had appointed
him. There being no statute authorizing the Secretary of the Navy to approve
Mouat’s appointment the Court concluded that he was not even an inferior
officer.
But there is no statute authorizing the secretary of the Navy to appoint
a pay-master’s clerk, nor is there any act requiring his approval of such an
appointment, and the regulations of the navy do not seem to require any
such appointment or approval for the holding of that position. The claimant,
therefore, was not an officer, either appointed by the president or under the
authority of any law vesting such appointment in the head of a department.
For this reason, it was held that Mouat was not entitled to travel expenses
that were authorized to officers of the United States.
Another important case regarding the appointment of United States
officers is United States v. Smith, 124 U.S. 525, 8 S.Ct. 595 (1888). Here,
Smith was being prosecuted for embezzlement committed while he was
employed as a clerk in the office of the collector of the customs. Since the
statute under which Smith was being charged applied solely to officers of
the United States, the Court was again required to define who was such an
officer:
“An officer of the United States can only be appointed by the president,
by and with the advice and consent of the senate, or by a court of law, or
the head of a department. A person in the service of the government who