OCTOBER TERM. 1934.

Syllabus. 295 U. S.

hold it void. For the Fifth Amendment commands thai,

however great the Nation's need, private property shall
not be thus taken even for a wholly public use without
just compensation. If the public interest requires, and
permits, the taking of property of individual mortgagees
in order to relieve the necessities of individual mortgagors,
resort must be had to proceedings by eminent domain; so
that, through taxation, the burden of the relief afforded
in the public interest may be borne by the public.
Reversed.

HUMPHREY'S EXECUTOR v. UNITED STATES.*

CERTIFICATE FROM THE COURT OF CLAIMS.

No. 667. Argued May 1, 1935.-Decided May 27, 1935.

.1. The Federal Trade Commission Act fixes the terms of the Com-
missioners and provides that any Commissioner may be removed
by the President for inefficiency, neglect of duty, or malfeasance in
office. Held that Congress intended to restrict the power of re-
moval to one or more of those causes. Shurtleff v. United States,
189 U. S. 311, distinguished.' Pp. 621, 626.
2. This construction of the Act is confirmed by a consideration of
the character of the Commission-an independent, non-partisan
body of experts, charged with duties neither political nor executive,
but predominantly quasi-judicial and quasi-legislative; and by the
legislative history of the Act. P. 624.
3. When Congress provides for the appointment of officers whose
functions, like those of the Federal Trade Commissioners, are of
legislative and judicial quality, rather than executive, and limits
the grounds upon which they may be removed from office, the
President has no constitutional power to remove them for reasons
other than those so specified. Myers v. United States, 272 U. S.
52, limited, and expressions in that opinion in part disapproved.
Pp. 626, 627.
* The docket title of this case is: Rathbun, 'Executor, v. United
States.
 HUMPHREY'S EXECUTOR v. U. S. 603
602 Syllabus.

The Myers case dealt with the removal of a postmaster, an

executive officer restricted to executive functions aid charged with
no duty at all related to either the legislative or the judicial power.
The actual decision in the Myers case finds support in the theory
that such an officer is merely one of the units in the executive de-
partment and, hence, inherently subject to the exclusive and il-
limitable power of removal by the Chief Executive, whose subordi-
nate he is. That decision goes no farther than to include purely
executive officers. The Federal Trade Commission, in contrast, is
an -administrative body created by Congress to carry into effect
legislative policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform other speci-
fied duties as a legislative or as a judicial aid. Such a body cannot
in any proper sense be characterized as an arm or an eye of the
executive. Its duties are performed without executive leave and,
in the contemplation of the statute, must be free from executive
control. To the extent that it exercises any executive function-as
distinguished from executive power in the constitutional sense-it
does so in the discharge and effectuation of its quasi-legislative or
quasi-judicial powers, or as -an agency of the legislative or judicial
departments of the Government. Pp. 627-628.
4. The authority of Congress, in creating quasi-legislative or quasi-
judicial agencies, to require them to act in discharge of their duties
independently of executive control cannot well be doubted; and
that authority includes, as an appropriate incident, power to fix the
period during which they shall continue in office, -and to forbid their
removal except fot cause in the meantime. P. 629.
5. The fundamental necessity of maintaining each of the three gen-
eral departments of government entirely free from the control or
coercive influence, direct or indirect, of either of the others, has
often been stressed and is hardly open to serious question. So
much is implied in the very fact of the separation of the powers
of these departments by the Constitution; and in the rule which
recognizes their essential co-equality. P. 629.
6. Whether "the power of the President to remove an officer shall pre-
vail over the authority of Congress to condition the power by fixing
a definite term and precluding a removal except for cause, will
depend upon the character of the office. To the extent that, be-
tween the decision in the Myers case, which sustains the unrestrict-
able power of the President to remove purely executive officers, and
the present decision that such power does not extend to an office
 OCTOBER TERM, 1934.
Argument for the Executor. 295 U. S

such as that here involved, there shall remain a field of doubt, such
cases as may fall within it are left for future consideration and
determination as they may arise. P. 631,
7. While the general rule precludes the use of congressional debates
to explain the meaning of the words of a statute, they may be con-
sidered as reflecting light upon its general purposes and the evils
which it sought to remedy. P. 625.
8. Expressions in an opinion which are beyond the point involved do
not come within the rule of stare decisis. P. 626.

CERTIFICATE from the Court of Claims, propounding

questions arising on a claim for the salary withheld from
the plaintiff's testator, from the time when the President
undertook to remove him from office to the time of his
death.
Mr. Win. J. Donovan, orally (Messrs. Henry Herick
Bond and Ralstone R. Irvine were with him on the brief)
for Humphrey's Executor.
It is our position that § 1 of the Act evidences, under
the rule expressio unius, the purpose of Congress to limit
the power of the President to remove except for the causes
stated, and then only with notice and hearing.
There is an important distinction between this Act and
the one in Shurtleff v. United States, in that this Act
specifies the tenure of office. The failure of the Customs
Administrative Act so to specify was cited in the earlier
case as a controlling reason why this Court would not im-
pute an intention of Congress to limit the President's
power of removal. This Court pointed out that in the
absence of such a limitation, the incumbent would hold
office during life. The reason which this Court gave for
its construction of the language in that Act is therefore
entirely absent in § 1 of the Federal Trade Commission
Act.
Congress specifically provided that the Federal Trade
Commissioners shall "continue in office for their respec-
tive terms." The Government contends that this
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument for the Executor.

language applies only to the first Commissioners and that

the phrase is an expression of style without legal signifi-
cance. It does seem to me that the fair intendment of
that phrase was to apply not to a particular category of
Commissioners but to all Commissioners who would serve,
and this fact of continuance in office with a fixed tenure is
a fundamental distinction between this case and the
Shurtleff case.
An examination of the debates taking place during the
consideration of the Federal Trade Commission Act will
show that the Shurtleff case was never mentioned. The
Customs Administrative Act was never referred to. As a
matter of fact, the debates in Congress and the reports of
the committees bearing upon the Federal Trade Commis-
sion Act show that the phrase "inefficiency, neglect of
duty and malfeasance in office" was taken directly from
the Interstate Commerce Act, which was passed sixteen
years before the Shurtleff case was decided.
The Government says that the Federal Trade Com-
mission and the Board of General Appraisers are not so
unlike in nature as to call for a departure from the con-
struction given in the Shurtleff case to the words in ques-
tion, and that the two agencies are, in fact, strikingly
similar in the relevant essentials of organization and
functions.
However true that statement may be as to the present
set-up of the Customs Court, it certainly is not an accu-
rate statement of the situation as it existed at the time
of the Shurtleff case; the legislative history of that Act
shows this.
The Act of 1851 created 4 additional appraisers, whose
duty it was to go from port to port to aid local appraisers
in maintaining uniform appraisements throughout the
country. They were removable at will by the President
and were subordinate to and were regulated .by the Sec-
retary of the Treasury. The Customs Administrative Act,
606 OCTOBER TERM, 1934.
Argument for the Executor. 295 U. S.

1890, merely added to the functions previously performed

by. the general appraisers, the function of acting as a
board of three to re-determine valuations made by a
single appraiser. They were described in the Senate as
taxing officers who had only the functions of such tax-
ing officers-a purely executive office. The general ap-
praisers were not to constitute an independent body.
They were still subject to regulation by the Treasury;
and the debates indicate no purpose to make their office
more permanent in its nature than it had been before.
It "was not until 1908 that the Board of General Ap-
praisers was set up as an independent body, and it was
not until 1926 that it was set up as a Court of Customs.
Now, in contrast with the function of the general ap-
praisers at the time of the Shurtlefr case, that of, the
Federal Trade Commissioners is totally different.
As appears from the debates leading to the adoption
of the Federal Trade Commission Act, it was intended to
make this Commission independent of the Chief Execu-
tive. This Commission took over the duties of the Com-
missioner of Corporations. The duties of the Commis-
sioner of Corporations were to inquire into the interstate
activities of corporations and combinations and to report
to the President.
In enacting the Federal Trade Commission Act, the pro-
ponents of the bill expressly declared that the President's
domination of the Commissioner of Corporations had
made that office ineffective for the purposes for which it
was created. -This is made clear in the report to the
House by the author of the bill and chairman of the sub-
committee of the House Interstate and Foreign Commerce
Committee that had prepared it. He pointed out that
in order to give dignity and standing to the Commission
the bill was designed to confer upon it independent power
and authority, and to do that it removed entirely from
the control of the President and the Secretary of Coin-
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument"for the Executor.

merce the investigations conducted by the Bureau of

Corporations or the Commissioner of Corporations.
Again, the chairman of the Senate Interstate Commerce
Commission, and the -report of his Committee to the
Senate, indicate the purpose to keep it free from the
executive department of the Government and more par-
ticularly the office of the Attorney General. Sen. Rep.
No. 597, 63d Cong., 2d Sess.
Up to now, I have been attempting to arrive at the in-
tention of Congress by an examination of.the debates and
by an examination of the language of § 1, in which the
words of limitation are used. But an examination of the
Act in its entirety indicates that Congress intended the
Commission to be free from the domination of the Presi-
dent because the duties and function of the Federal Trade
Commission are inconsistent with an unrestricted power
of removal in the President.
When acting as a Master in Chancery, it is'clear that
the Federal Trade Commission is acting as an agency of
the Federal Court. Giving the President the unrestricted,
power of removal of the Federal Trade Commissioners,
would confer upon him the power, to dominate that
agency. Even when acting as a Master in Chancery, it'
should report a form of decree that is pleasing to him.
However much it may be urged that such power should
exist in the case of executive officers, it certainly was not
the intention that such power shouldexiSt to control an
agent of the court.
Under § 6 of the Act, the Federal Trade Commission
has the duty to make certain investigations at the in-
stance of Congress, to report its findings to Congress, to
make special and annual reports to Congress and'to sub-
mit recommendations for additional legislation. In mak-
ing these reports, the Commission acts as an agency of
Congress. This work undertaken by the Federal Trade
Commission as a direct agent of Congress is perhaps the
608 OCTOBER TERM, 1934.
Argument for the Executor. 295 U. S.

most important single function performed by the Com-

mission. The value of this work is directly dependent
upon the maintenance of the Commission as an inde-
pendent body.
The Government says that the power of removal is an
executive function. They go to the point of asserting
that this is unrestricted.
We say that the Myers case did not undertake to de-
cide this question and that the Congress has the power to
enact legislative standards for removal as well as for
appointment, such standards to be applied by the Presi-
dent in the exercise of his executive power.
All legislative power given to the Fedbral Government
is vested in the Congress. In this instance it has seen
fit, in the Federal Trade Commission Act, to deal with
unfair methods of competition in Commerce. This Court
has held that it has the power to deal with such acts.
It has also attempted to create an agency to aid the leg-
islature in the preparation of legislation. There can be
no doubt of the power of -the legislative body to create
such agencies as are necessary properly to advise it of
facts that may be in aid of legislation. Consequently,
there can be no doubt in this case that Congress had the
right to create the Federal Trade Commission. This
Court has held that it has that right. Since Congress has
the right to legislate in this field, the Constitution specifi-
cally gives the Congress the power to pass all laws that
are necessary and proper to carry out its purpose. Con-
gress has believed that the success of the Federal Trade
Commission Act is dependent upon maintaining the Com-
mission as an independent body. To achieve this result
they have attempted to place restrictions upon the Presi-
dent's power to remove without cause.
And, in limiting this power of removal, Congress has
not infringed upon the constitutional powers of the Presi-
dent. Here it does not seek to participate in the execu-
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument for the Executor.

tive power of removal. The executive act of removal

remains in the President. Congress has merely enacted
a legislative standard.
The fact that the Congress has-repeatedly limited the
President's freedom of choice in making nominations of
executive officers has often been pointed out to this Court.
These restrictions or limitations have been of different
kinds and different forms. See dissenting opinion of Mr.
Justice Brandeis in the Myers case, supra.
The enactment of a legislative standaid to be met by
appointees of the President has always been regarded
both by the courts and the President as a legislative and
not an executive function. No court has ever held that
the enactment of such a legislative standard to be fol-
lowed by the President in making nominations is an in-
valid limitation upon the appointing power of the Execu-
tive. And this in spite of the fact that the power of ap-
pointment is expressly vested in the President. The
power of removal is not expressly vested. It is implied
from his power as an executive and more particularly
from his express power of appointment. Surely an im-
plied power is no greater than one expressly conferred.
It would seem that as Congress may limit the class from
which appointments shall be made so also it could define
the causes for removals.
The sole question determined in the Myers case was
that Congress could not compel the President to share
with the Senate his power to remove executive officers.
The power of removal is exclusively an executive func-
tion and Congress of course has no authority to appro-
priate to itself a power given exclusively to the President.
This fundamental distinction between the Myers case
and the enactment of a legislative stAndard which the
President must follow in the exercise of his exclusive
power of removal was expressly recognized by counsel for
610 OCTOBER TERM, 1934.
Argument for the Executor. 295 U. S.

the United States in the argument in the Myers case.

Solicitor General Beck, pages 88 to 98.
In this case the Government changes its position and
says: "A limitation of the grounds of removal is at least
as substantial an interference with the executive power as
is a requirement that the Senate participate in the re-
moval." This is not so. If the Senate participates it
can prevent removal regardless of the merit of the case.
But where, as here, the President alone has the power
to remove, any legislative standard must be reasonable
in view of the nature and function of the office affected.
In the Myers case, this Court reviewed at length the
debates in the First Congress in connection with the "De-
cision of 1789." It found that those debates and that
decision constituted a declaration by Congress that the
President and not the legislature had the power to re-
move an executive officer. We submit that a further ex-
amination of those debates will disclose that the extent to
which Congress may restrict the President's power t6 ra-
move other than purely executive officers is dependent
upon the nature and function of the office involved.
From these debates it is clear that a very definite factor
in the minds of many sponsors of the bill before the first
Congress was the fact that the nature and function of the
office of the Secretary of Foreign Affairs were politically
executive. With respect to such an executive officer it
was their view that the President and not the Congress
had the power of removal.
The significance of the distinction is this: While Con-
gress has power to create an executive political office, con-
trol of that office should be in the hands of the President
in order not to circumscribe the, power of the President
to control his agents. But in the case of an office such
as the Federal Trade Commission, the nature of which
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument for the Executor.

is not political, the function of which is quasi-judicial

and quasi-legislative, in order to safeguard its independ-
ence of political domination it is necessary -and proper
to enact legislative standards which the President must
follow.
This distinction between such executive officers and
other officers of the Government was expressly recognized
by James Madison who was the leader in the debate in
1789. 1 Annals of Congress, Col. 611-612, 613, 614. See
Marbury v. Madison, 1 Cranch 137, 161; Matter of Hen-
nen, 13 Pet. 230, 260; U. S. ex rel. Goodrich v. Guthrie, 17
How. 284; McAllister v. United States, 141 U. S. 174;
United States v. Perkins, 116 U. S. 483; Blake v. United
States, 103 U. S. 227; Wallace v. United States, 257 U. S.
541; Shurtleff v. United States, 189 U. S. 311; Reagan v.
United States, 182 U. S. 419; Embry v. United States, 100
U. S. 680; McElratt v. United States, 102 U. S. 426.
The assumption made in the Shurtleff case, supra, that
Congress can compel the President to afford notice and
hearing if he chooses to remove for causes stated in the
statute, is a refutation of the Government's argument
that the President's power cannot be limited in any re-
spect. Once you concede the validity of the restriction of
notice and hearing, the rest is a matter of degree. The
question is whether the restriction is necessary and proper
to achieve the legislative purpose of Congress. I sub-
mit that the value of the Federal Trade Commission is
dependent upon its independence of executive control.
Otherwise it would be in the status of the Bureau of
Corporations, the essential weakness of which was execu-
tive control. To insure that independence, it is neces-
sary and proper to provide that Commissioners should be
removed only for inefficiency, neglect of duty or mal-
feasance in office. And such a restriction, as Mr. Madi-
son suggests, is within the spirit of the Constitution.
 OCTOBER TERM, 1934.
Argument for the United States. 295 U. S.

Solicitor General Reed, with whom Assistant Attorney

General Sweeney and Messrs. Paul A. Sweeney and M.
Leo Looney, Jr., were on the brief, for the United States.
Section 1 of the Federal Trade Commission Act does
not deprive the President of the power to remove a Com-
missioner except for inefficiency, neglect of duty, or mal-
feasance in office. Shurtleff v. United States, 189 U. S.
311, determined the meaning of identical language con-
tained in a similar statute. The same language is to be
found in the Acts creating the Interstate Commerce Com-
mission (Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383), the
United States Shipping Board (Sept. 7, 1916, c. 451, § 3,
39 Stat. 728, 729), and the United States Tariff Commis-
sion (Sept. 8, 1916, c. 463, § 700, 39 Stat. 756, 795).
The opinions in Myers v. United States, 272 U. S. 52,
make it clear that the rule of construction announced in
the Shurtleff case is controlling with respect to the Fed-
eral Trade Commission Act. See 272 U. S., at pp. 171-
172, 262, n. 30.
The Federal Trade Commission Act was enacted in
1914, containing language identical with that which had
been construed in the Shurtleff case. In adopting the
language used in the earlier Act, Congress must be con-
sidered to have adopted also the construction given by
this Court to that language and to have made it a part
of the enactment.
Five years after the decision in the Shurtleff case, the
Customs Administrative Act, there involved, was amended
to provide that a General Appraiser could be removed for
inefficiency, neglect of duty, or malfeasance in office,
"and no other" cause. C. 205, 35 Stat. 403, 406. The
history of this amendment'reveals that it was adopted in
order to change the meaning of the Act as previously con-
strued by this Court.
In a number of other statutes as well, Congress has at-
tempted by explicit language to limit the removal power
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument for the United States.

to specified causes and no others. They include the

Acts creating a Commissioner of Mediation and Con-
ciliation (c. 6, § 11, 38 Stat. 103, 108); the Board of Tax
Appeals (c. 234, § 900 (b), 43 Stat. 253, 336); the Rail-
road Labor Board (c. 91, § 306 (b), 41 Stat. 456, 470); the
United States Coal Commission (c. 248, § 1, 42 Stat.
1446); the Board of Mediation (c. 347, §4, 44 Stat. 577,
579); and the National Mediation Board (c. 691,. § 4, 48
Stat. 1193).
In the Federal Trade Commission Act, the provision
that each Commissioner shall "continue in office" for the
term specified, is used only with reference to the "first
Commissioners." As to their "successors," the Act pro-
vides simply that they "shall be appointed for terms of
seven years." The phrase "continue in office," applying
as it does only to the original 'appointees, is obviously an
expression of style without legal significance. The term
prescribed is not a grant of tenure but a limitation.
Parsonsv. United States, 167 U. S. 324; Burnap v. United
States, 262 U. S. 512, 515.
The specification of certain grounds for removal may
serve to indicate a policy regarding the holding of office,
guiding but not limiting the President's discretion in ex-
ercising the removal power. In addition, the specification
has the effect of requiring notice and hearing if an officer
is removed for one of the causes designated. Shurtleff v.
United States, 189 U. S. 311, 317.
Statutes not infrequently enumerate powers which are
not intended to be exclusive. Springer v. Philippine
Islands, 277 U. S. 189, 206; Continental Illinois National
Bank & Trust Co. v. Chicago, R, I. & P. Ry. Co., 294 U. S.
648.
It is true, as the legislative history of the Act indicates,
that the Comrssion was intended to be or to become an
experienced and informed body, free from certain of the
handicaps that were deemed to inhere in departmental
614 OCTOBER TERM, 1934.
Argument for the United States. 295 U. S.

organization. But there is nothing in the language or the

legist ,tive history of the Act to suggest that these pur-
poses were thought to require a limitation of the removal
power to the causes named. Nor are the Federal Trade
Commission and the Board of General Appraisers so un-
like in nature as tQ call for a departure by the Court from
the construction given in the Shurtleff case to the words in
question. The two agencies are, in fact, strikingly simi-
lar in the relevant essentials of organization and functions.
The Act of 1890 1rovided for "general appraisers,"
from whose decisions appeals lay to a board- consisting of
three of the general appraisers; and from the decisions of
the board an appeal could be taken to a circuit court. The
general appraisers were authorized to administer oaths
and to cite persons to appear before them. Not more
than five of the nine general appraisers could be members
of the same political party. The board of general apprais-
ers has been characterized as a tribunal clothed with ju-
dicial power to determine the. classification of imported
goods and the duties which should be imposed thereon.
United States v. Kurtz, 5 Ct. Cust. App. 144, 146; Ma-
rine v. Lyon, 65 Fed. 992, 994; compare United States v.
Lies, 170 U. S. 628, 636. Thp nature of its functions is
revealed by the fact that in 1926 the name of the board of
general appraisers was changed to the United States Cus-
toms Court. Act of May 28, 1926, c. 411, 44 Stat. 669.
The independence which Congress sought for the Fed-
eral Trade Commission does not depend upon an implied
limitation of the removal 'power such as that contended
for by the plaintiff. The Commission was left free from
the continuing supervision of a departmental head; its
membership was required to represent more than one
political party; and the terms of its members'were ar-
ranged to expire at different times. In later Acts creating
similar commissions, these factors alone have apparently
-been deemed sufficient to secure the objective of an inde-
 HUMPHREY'S EXECUTOR v.. U. S. 615
602 Argument for the United States.

pendent body. Compare, for example, the Acts creating

the United States Employees' Compensation Commission
(c. 458, 39 Stat. 742); the Federal Radio Commission
(c. 169, 44 Stat. 1162); the Federal Power Commission
(c. 572, 46 Stat. 797); The Federal Home, Loan Bank
Board (c. 522, § 17, 47 Stat. 725, 736); the Securities and
Exchange Commission (c. 404, § 4, 48 Stat. 885); and
the Federal Communications Commission (c. 652, § 4,
48 Stat. 1066). Each of these Acts provides that not more
than a bare majority of the members of the Commission
shall belong to the same political party; and each pro-
vides that the members of the Commission shall have
overlapping terms. In none of these Acts did Congress
impose any limitation on removal. The effect of this
omission is that the power of removal is unrestricted,
since the power to remove, at least in the absence of
constitutional or statutory provision, is an incident of
'the power to appoint. Parsonsv. United States, 167 U. S.
324; Burnap v. United States, 252 U. S. 512, 515; Wallace
v. United States, 257 U. S. 541, 544. Whatever the rea-
son for the 'omission in these Acts, it is clear at all events
that it was not regarded as nullifying the other safeguards
of independence which are included in these Acts as in
the Federal Trade Commission Act.
It is submitted, therefore, that it is a settled rule of
construction that the mere statutory enumeration of
causes for which- an appointee may be removed does
not confine the exercise of the President's power to re-,
moval for one or more of those causes; that there is
nothing in the language or history of the Federal Trade
Commission Act to suggest that Congress departed from
this established meaning.
The construction for which the plaintiff contends not
only is at variance with the applicable decisions of this
Court, but raises constitutional questions of A serious
nature. In the case at bar such a construction "should
616 OCTOBER TERM, 1934.
Argument for the United States. 295 U. S.

not be made in the absence of compelling language."

Missouri Pacific R. Co. v. Ault, 256 U. S. 5§4, 559.
If the Court should be of the opinion that § 1 of the
Federal Trade Commission Act deprives the President of
the power to remove a Commissioner except for one or
more of the causes stated, we submit that the provision
is unconstitutional. Myers v. United States, 272 U. S.
52, 172.
A statute limiting the President's removal power to
removal for certain causes is as unwarranted an interfer-
ence with the executive power as is a statute requiring
participation by the Senate in a removal. Participation
by the Senate in removal is closely allied with the neces-
sity of securing its advice and consent for the appointment
of a successor to the officer removed. In fact, Senatorial
approval of a subsequent appointment is regarded as
tantamount to approval of the removal. Wallace v.
United States, 257 U. S. 541; 258 U. S. 296. No such
merging of Senatorial functions characterizes the require-
ment that the President may remove for certain causes
only. The power of the President to remove an officer
in whom he does not have adequate confidence is effec-
tively thwarted, and the consent of the Senate to the
appointment of a qualified successor is of no avail.
If Congress can provide that the President may remove
only for inefficiency, neglect of duty, or malfeasance in
office, it presumably could provide that he might remove
only for malfeasance -in office or only for neglect of duty.
The result would be that 'the President would have no
power, even with the aid of the.;Senate, to remove an
admittedly inefficient officer in the executive branch of
the Government.
* Faithful execution of the laws may require more than
freedom from inefficiency, neglect of duty, or malfeasance
in office. Particularly in the case of those officers en-
trusted with the task of enforcing new legislation, such
 HUMPHREY'S EXECUTOR v. U. S.
602 Argument for the United States.

as the Securities Act of 1933, which embodies new concepts

of federal regulation in the public interest, faithful exe-
cution of the laws may presuppose wholehearted sym-
pathy with the purposes and policy of the law, and en-
ergy and resourcefulness beyond that of the ordinarily
efficient public servant. The President should be free to
judge in what measure these qualities are possessed and
to act upon that judgment. Myers v. United States, 272
U. S. 52, 135.
The so-called legislative functions performed by the
Federal Trade Commission do not differ in nature from
those performed by the regular executive departments.
Reports to Congress on special topics are made by the
Commission; but such reports are likewise made by the
heads of departments.
The Federal Trade Commission is not a judicial tribu-
nal. Federal Trade Comm'n v. Eastman Kodak Co., 274
U. S. 619, 623. ,We need not consider, thei'efore, whether
the President's power to remove a judge of a court not
established under Art. III of the- Constitution may be
restricted by Congress. Cf. McAllister v. United States,
141 U. S. 174.
The so-called quasi-judicialfunctions of the Commis-
sion are not different from those regularly committed to
the executive departments. Functions so committed in-
clude the determination of a wide range of controversies
respecting such important matters as immigration, Lloyd
Sabaudo Societa v. Elting, 287 U. S. 329; inte5rnal revenue
and customs duties, Blair v. Oesterlein Machine Co., 275
U. S. 220; Louisiana v. McAdoo, 234 U. S. 627; public-
land claims, United States v. Hitchcock, 190 U. S. 316;
pension claims, Decatur v. Paulding,14 Pet. 497; use of
the mails, Houghton v. Payne, 194 U. S. 88; practices at
stockyards, Tagg Bros. & Moorhead v. United States, 280
U. S. 420; trading in grain futures, Chicago Board of
Trade v. Olsen, 262 U. S. 1.
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

It cannot be questioned that the head of a department,

however numerous or important may be his functions of
this kind, is subject to removal by the President without
limitation by Congress, under the decision in the Myers
case, supra. An attempt to distinguish, in respect of the
President's removal power, between various administra-
tive agencies would logically require distinctions also be-
tween the same agency at different times.
MR. JUSTICE SUTHERLAND delivered the opinion of the
Court.
Plaintiff brought suit in the Court of Claims against
the United States to recover a sum of money alleged to
be due the deceased for salary as a Federal Trade Com-
missioner from October 8, 1933, when the President under-
took to remove him from office, to the time of his death
on February 14, 1934. The court below has certified to
this court two questions (Act of February 13, 1925, § 3
(a), c. 229, 43 Stat. 936, 939; 28 U. S. C. § 288), in re-
spect of the power of the President to make the removal.
The material facts which give rise to the questions are
as follows:
William E. Humphrey, the decedent, on December 10,
1931, was no-minated by President Hoover to succeed him-
self as a member of the Federal Trade Commission, and
was confirmed by the United States Senate. He was duly
commissioned for a term of seven years expiring Septem-
ber 25, 1938; and, after taking the required oath of office,
entered upon his duties. On July 25, 1933, President
Roosevelt addressed a letter to the commissioner asking
for his resignation, on the ground "that the aims and pur-
poses of the Administration with respect to the work of
the Commission can be carried out most effectively with
personnel of my own selection," but disclaiming any re-
flection upon the commissioner personally, or upon his
services. The commissioner replied, asking time to con-
 HUMPHREY'S EXECUTOR v. U. S.
602 Opinion of the Court.

sult his friends. After some further correspondence upon

the subject, the President on August 31, 1933, wrote the
commissioner expressing the hope that the resignation
would be forthcoming and saying:
"You will, I know, realize that I do not feel that your
mind and my mind go along together on either the policies
or the administering of the Federal Trade Commission,
and, frankly, I think it is best for the people of this coun-
try that I should have a full confidence."
The commissioner declined to resign; and on October
7, 1933, the President wrote him:
"Effective as of this date ypu are hereby removed from
the office of Commissioner of the Federal Trade Com-
mission."
Humphrey never acquiesced in this action, but con-
tinued thereafter to insist that he was still a member of
the commission, entitled to perform its duties and receive
the compensation provided by law at the rate of 810,000
per annum. Upon these and other facts set forth in the
certificate, which we deem it unnecessary to recite, te
following questions are certified:
"1. Do the provisions of section 1 of the Federal Trade
Commission Act, stating that 'any commissioner may be
removed by the President for inefficiency, neglect of duty,
or malfeasance in office,' restrict or limit the power of the
President to remove a commissioner except upon one or
more of the causes named?
"If the foregoing question is answered in the affirma-
tive, then-
"2. If the power of the President to remove a commis-
sioner is restricted or limited as shown by the foregoing
interrogatory and the answer made thereto, is such a
restriction or limitation valid under the Constitution of
the United States?"
The Federal Trade Commission Act, c. 311, 38 Stat.
717; 15 U. S. C. § § 41, 42, creates a commission of five
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

members to be appointed by the President by and with

the advice and consent of the Senate, and § 1 provides:
"Not more than three of the commissioners shall be
members of the same political party. The first commis-
sioners appointed shall continue in office for terms of
three, four, five, six, and seven years, respectively, from
the date of the taking effect of this Act, the term of each
to be designated by the President, but their successors
shall be appointed for terms of seven years, except that
any person chosen to fill a vacancy shall be appointed
only for the unexpired term of the commissioner whom
he shall succeed. The commission shall 'choose a chair-
man from its own membership. No commissioner shall
engage in any other business, vocation, or employment.
Any commissioner may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office ..
Section 5 of the act in part provides:
"That unfair methods of competition in commerce are
hereby declared unlawful.
"The commission is hereby empowered and directed
to prevent persons, partnerships, or corporations, except
banks, and common carriers subject to the Acts to regu-
late commerce, from using unfair methods of competition
in commerce."
In exercising this power, the commission must issue a
complaint stating its charges and giving notice of hearing
upon a day to be fixed. A person, partnership, or corpo-
ration proceeded against is given the right to appear at
the time and place fixed and show causd why an order to
cease and desist should not be issued. There is provision
for intervention by others interested. If the commission
finds the method of competition is one prohibited by the
act, it is directed to make a report in writing stating its
findings as to the facts, and to issue and cause to be served
a cease and desist order. If the order is disobeyed, the
commission may apply to the appropriate circuit court of
 HUMPHREY'S EXECUTOR v. U. S.
602 Opinion of the Court,

appeals for its enforcement. The party subject to the

order may seek and obtain a review in the circuit court of
appeals in a manner provided by the act.
Section 6, among other things, gives the commission
wide powers of investigation in respect of certain corpora-
tions subject to the act, and in respect of other matters,
upon which it must report to Congress with recommenda-
tions. Many such investigations have been made, and
some have served as the basis of congressional legislation.
Section 7 provides:
"That in any suit in equity.brought by or under the
direction of the Attorney Gexieral as provided in the anti-
trust Acts, the court may, upon the conclusion of the testi-
mony therein, if it shall be then of opinion that the com-
plainant is entitled to relief, refer said suit to the commis-
sion, as a master in chancery, to ascertain and report an
appropriate form of decree therein. The commission shall
proceed upon such notice to the parties and under such
rules of procedure as the court may prescribe, and upon
the coming in of such report such exceptions may be filed
and such proceedirigs had in relation -thereto as upon the
report of a master in other equity causes, but the court
may adopt or reject such report, in whole or in part, and
enter such decree as the nature of the case may in its judg-
ment require."
First. The question first to be considered is whether, by
the provisions of § 1 of the Federal Trade Commission Act
already quoted, the President's power is limited to re-
moval for the specific causes enumerated therein. The
negative contention of the government is based principally
upon the decision of this court in Shurtleff v. United
States, 189 U. S. 311. That case involved the power of
the President to remove a general appraiser of mer-
chandise appointed under the Act of June 10, 1890, 26
Stat. 131. Section 12 of the act provided for the appoint-
ment by the President, by and with the advice, and con-
622 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

sent of the Senate, of nine general appraisers of mer-

chandise, who "may be removed from office at any time
by the President for inefficiency, neglect of duty, or mal-
feasance in office." The President removed Shurtleff
without assigning any cause therefor. The Court of
Claim dismissed plaintiff's petition to recover salary, up-
holding the President's power to remove for causes other
than those stated. In this court Shurtleff relied upon the
maxim expressio unius est exclusio alterius;but this court
held that, while the rule expressed in the maxim was a
very proper one and founded upon justifiable reasoning in
many instances, it "should not be accorded controlling
weight when to do so would involve the alteration of the
universal practice of the government for over a century
and the consequent curtailment of the powers of the
executive in such an unusual manner." What the court
meant by this expression appears from a reading of the
opinion. That opinion-after saying that no term of
office was fixed by the act and that, with the exception of
judicial officers provided for by the Constitution, no civil
officer had ever held office by life tenure since the founda-
tion of the government-points out that to construe the
statute as contended for by Shurtleff would give the
appraiser the right to hold office during his life or until
found guilty of some act specified in the statute, the result
of which would be a complete revolution in respect of the
general tenure of office, effected by implication with regard
to that particular office only.
"We think it quite inadmissible," the court said (pp.
316, 318), "to attribute an intention on the part of Con-
gress to make such an extraordinary change in the usual
rule governing the tenure of office, and one which is to be
applied to this particular office only, without stating such
intention in plain and explicit language, instead of leav-
ing it to be implied from doubtful inferences. ... We
cannot bring ourselves to the belief that Congress ever
 HUMPHREY'S EXECUTOR v, U. S.
602 Opinion of the Court.

intended this result while omitting to use language which

would put that intention beyond doubt."
These circumstances, which led the court to reject the
maxim as inapplicable, are exceptional. In the face
of the unbroken precedent against life tenure, .except in
the case of the judiciary, the conclusion that Congress
intended that, from among all other civil officers, apprais-
ers alone should be selected to hold office for life was so
extreme as to forbid, in the opinion 'of the court,.any rul-
ing which would produce that result if it.reasonably could
be avoided. The situation here presented, is plainly and
wholly different. The statute fixes a term of office, in
accordance with many precedents. The first commission-
ers appointed are to continue in office for terms of three,
four, five, six, and seven years, respectively; and their
successors are to be appointed for terms of seven years-
any commissioner being subject to removal by the Presi-
dent for inefficiency, neglect of duty, or malfeasance in
office. •The words of the act are definite and unam-
biguous.
The government says the phrase "continue in office"
is of no legal significance and, moreow'r, applies only to
the first commissioners. We think it has significance.
It may be that, literally, its application is restricted as
suggested; but it, nevertheless, lends support. to a view
contrary to that of the government as to the meaning of
the entire requirement in respect of tenure-; for it is not
easy to suppose that Congress intended to secure the first
commissioners against removal except for the causes speci-
fied and deny like security to their successors: Putting
this phrase aside, however, the fixing of a definite term
subject to removal for cause, unless there be some counter-
vailing provision or circumstance indicating the contrary,
which here we are unable to find, is enough to establish
the legislative intent that the term is not to be curtailed
in the absence of such cause. But if the intention of
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

Congress that no removal should be made during the

specified term except for one or more of the enumerated
causes were not clear upon the face of the statute, as we
think it is, it would be made clear by a consideration of
the charactir of the commission and the legislative history
which accompanied and preceded the passage of the act..
The commission is to be non-partisan; and it must,
from the very nature of its duties, act with entire im-
partiality. It is charged with the enforcement of no
policy except the policy of the law. Its duties are neither
political nor executive, but predominantly quasi-judicial
and quasi-legislative. Like the Interstate Commerce
Commission, its members are called upon to exercise the
trained judgment of a body of experts "appointed by law
and informed by experience." Illinois Central R. Co. v.
Interstate Commerce Comm'n, 206 U. S. 441, 454; Stand-
ard Oil Ca. v. United States, 283 U. S. 235, 238-239.
The legislative reports in both houses of Congress
clearly reflect the view that a fixed term was necessary to
the effective and fair administration of the law. In the
report to the Senate (No. 597, 63d Cong., 2d Sess., pp.
10-11) the Senate Committee on Interstate Commerce, in
support of the bill which afterwards became the act in
question, aftei referring to the provision fixing the term
of office at seven years, so arranged that the membership
would not be subject to complete change at any one time,
said:
"The work of this commission will be of a most exact-
ing and difficult character, demanding persons who have
experience in the problems to be met-that is, a proper
knowledge of both the public requirements and the prac-
tical affairs of industry. It is manifestly desirable that
the terms of the commissioners shall be long enough to
give them an opportunity to acquire the expertness in
dealing with these special questions concerning industry
'that comes from experience."
 HUMPHREY'S EXECUTOR v. U. S. 625
602 Opinion of the Court.

The report declares that one advantage which the com-

mission possessed over the Bureau of Corporatidns -(an
executive subdivision in the Department of Commerce
which was abolished by the act) lay in the fact of its
independence, and that it was essential that the commis-
sion should not be open to the suspicion of partisan direc-
tion. The report quotes (p. 22) a statement to the com-
mittee by Senator Newlands, who reported the. bill, that
the tribunal should be of high character and" independent
of any department of the government. . . a hoard or
commission of. dignity, permanence, and ability, inde-
pendent of executive authority, except in its selection, and
independent in character."-
The debates in both houses demonstrate that the pre-
vailing view wasthat the commission was not to be "-sub-
ject to anybody in the government but . . . only to the
people of the United States "; free from "political domi-
nation or control" or the "probability or -possibility of
such a thing "; to be "separate and apart from any exist-
ing department of the government-not subject to the
orders of the President."
More to-the same effect appears in the debates, which
were long and thorough and contain nothing to the con-
trary. While the general rule precludes the use of these
debates to explain the meaning of the words of the
statute, they may be considered as reflecting light upon
its general purposes and the evils which it sought to
remedy. Federal Trade Comm'n v. Raladam Co., 283
U. S. 643, 650."
Thus, the language of the act,' the legislative reports,
and the general purposes of the legislation as reflected by
the debates, all combine to demonstrate the Congressionial
intent to create a body of experts who shall gain experi-
ence by length of service--a body which shall be independ-
ent of executive authority, except in its selection, and.free
to exercise its judgment without the leave or hindrance
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

of any other official or any department of the government.

To the accomplishment of these purposes, it is clear that
Congress was of opinion that length and certainty of
tenure would vitally contribute. And to hold that, never-
theless, the members of the commission continue in office
at the mere will of the President, might be to thwart, in
large measure, the very ends which Congress sought to
realize by definitely fixing the term of office.
We conclude that the intent of the act is to limit the
executive power*of removal to the causes enumerated, the
existence of none of which is claimed here; and we pass to
the second question.
Second. To support its contention that the removal
'provision of § 1, as we have just construed it, is an uncon-
stitutional interference with the executive power of the
President, the government's chief reliance is Myers v.
United States, 272 U. S. 52. That case has been so re-
cently decided, and the prevailing and dissenting opinions
so fully review the general subject of the power of execu-
tive removal, that further discussion would add little of
value to the wealth of material there collected. These
opinions examine at length the historical, legislative and
judicial data bearing upon the question, beginning with
what is called ' the decision of 1789" in the first Congress
and coming down almost to the day when the opinions
were delivered. They occupy 243 pages of the volume in
which they are printed. Nevertheless, the narrow point
actually decided was only that the President had power to
remove a postmaster of the first class, without the advice
and consent of the Senate as required by act of Congress.
In the course of the opinion of the court, expressions oc-
cur which tend to sustain the government's contention,
but these are beyond the point involved and, therefore, do'
not come within the rule of stare decisis. In so far as
they are out of harmony with the views here set forth,
these expressions are disapproved. A like situation'was
 HUMPHREY'S EXECUTOR v. U. S.
602 Opinion of the Court.

presented in the case of Cohens v. Virginia, 6 Wheat. 264,

399, in respect of certain general expressions in the opinion
in Marbury v. Madison, 1 Cranch 137. Chief Justice
Marshall, who delivered the opinion in the Marbury case,
speaking again for the court in the Cohens case, said:
"It is a maxim, not to be disregarded, that general ex-
pressions, in every opinion, are to be taken in connection-
with the case in which those expressions are used. If
they go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit,
when the very point is presented for decision. The reason
of this maxim is obvious. The question actually before
the Court is investigated with care, and considered in its
full extent. Other principles which may serve to illus-
trate it, are considered in their relation to the case de-
cided, but their possible bearing on all other cases is
seldom completely investigated."
And he added that these general expressions in the case
of Marbury v. Madison were to be understood with the
limitations put upon them by the opinion in the Cohens
case. See, also, Carrollv. Lessee of Carroll, 16 How. 275,
286-287; O'Donoghuev. UnitedStates, 289 U. S. 516,550..
The office of a postmaster is so essentially unlike the
office now involved that. the decision in the Myers case
cannot be accepted as controlling our decision here. A
postmaster is an executive officer restricted to the per-
formance of executive functions. He is charged with no
duty at all related to either the legislative or judicial
power. The actual decision in the Myers case finds sup-
port in the theory that such an officer is merely one of
the units in the executive department and, hence, in-
herently subject to the exclusive and illimitable power of
removal by the Chief Executive, whose subordinate and
aid he is. Putting aside dicta, which may be followed if
sufficiently persuasive but which are not controlling, the
necessary reach of the decision goes far enough to include
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

all purely executive officers. It goes no farther;--much

less does it include an officer who occupies no place in
the executive department and who exercises no part of
the executive power vested by the Constitution in the
President.
TheFederal Trade Commission is an administrative
body created by Congress to carry into effect legislative
policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform
other specified duties as a legislative or as a judicial aid.
Such a body cannot in any proper sense be characterized
as an arm or an eye of the executive. Its duties are per-
formed without executive leave and, in the contemplation
of the statute, must be free from executive control. In
administering the provisions of the statute in respect of
"unfair methods of competition "-that is to say in fill-
ing in and administering the details embodied by that
general standard-the commission acts in part quasi-legis-
latively and in part quasi-judicially. In making investi-
gations and reports thereon for the information of Con-
gress under § 6, in aid of the legislative power, it acts
as a legislative agency. Under § 7, which authorizes the
commission to act as a master in chancery under rules
prescribed by the court, it acts as an agency of the judi-
ciary. To the extent that it exercises any executive func-
tion-as distinguished from executive power in the
constitutional sense-it does so in the discharge and
effectuation of its quasi-legislative or quasi-judicial pow-
ers, or as an agency of the legislative or judicial depart-
ments of the government.*
* The provision of § 6 (d) of the actwhich authorizes the President
to direct an investigation and report by the commission in relation
to alleged violations of the anti-trust acts, is so obviously collateral
to the main design of the act as not to detract from the force of this
genexal statement as to the character of that body.
 HUMPHREY'S EXECUTOR v. U. S. 629
602 Opinion of the Court.

If Congress is without authority to prescribe causes for

removal of members of the trade commission and limit
executive power of removal accordingly, that power at
once becomes practically all-inclusive in respect of civil.
officers with the exception of the judiciary provided for
by the Constitution. The Solicitor General, at the bar,
apparently recognizing this to be true, with commendable
candor, agreed that his view in respect of the removability
of members of the Federal Trade Commission necessitated
a like view in respect of the Interstate Commerce Com-
mission and the Court of Claims. We are thus confronted
with the serious question whether not only the membem
of these quasi-legislat.ive and quasi-judicial bodies, but
the judges of the legislative Court of Claims, exercising
judicial power (Williams V. United States, 289 U. S. 553,
565-567), continue in office only at the pleasure of the
President.
We think it plain under the Constitution that illimit-
able power of removal is not possessed by the President
in respect of officers of the character of those just named.
The authority of Congress, in creating quasi-legislative
or quasi-judicial agencies, to require them to act in dis-
charge of their duties independently of executive control
cannot well be doubted;. and that authority includes, as
an appropriate incident, power to fix the period during
which they shall continue in office, and to forbid their
removal except for cause in the meantime. For it is quite
evident that one who holds his office only during the
pleasure of another, cannot be depended upon to main-
tain an attitude of independence against the latter's will.
The fundamental necessity of maintaining each of the
three general departments of government entirely free
from the control or coercive influence, direct or indirect,
of either of the others, has often been stressed and is
hardly open to serious question. So much is implied in
 OCTOBER TERM, 1934.
Opinion of the Court. 295 U. S.

the very fact of the separation of the powers of these de-

partments by the Constitution; and in the rule which
recognizes their essential co-equality. The sound appli-
cation of a principle that makes one master in his own
house precludes him from imposing his control in the
house of another who is master there. James Wilson, one
of the framers of the Constitution and a former justice of
this court, said that the independence of each department
required that its proceedings "should be free from the re-
motest influence, direct or indirect, of either of the other
two powers." Andrews, The Works of James Wilson
(1896), vol. 1, p. 367. And Mr. Justice Story in the first
volume of his work on the Constitution, 4th ed., § 530,
citing No. 48 of the Federalist, said that neither of the de-
partments in reference to each other "ought to possess,
directly or indirectly, an overruling influence in the ad-
ministration of their respective powers." And see
O'Donoghuev. United States, supra,at pp. 530-531.
The power of removal here claimed for the President
falls within this principle, since its coercive influence
threatens the independence of a commission, which is not
only wholly disconnected from the executive department,
but which, as already fully appears, was created by Con-
gress as a means of carrying into operation legislative and
judicial powers; and as an agency of the legislative and
judicial departments.
In the light of the question now under consideration,
we have. reexamined the precedents. referred to in the
Myers case, and find nothing in them to justify a con-
clusion contrary to that which we have reached. The
so-called "decision of 1789" had relation to a bill pro-
posed by Mr. Madison to establish an executive Depart-
ment of Foreign Affairs. The bill provided that the prin-
cipal officer was " to be removable from office by the Presi-
dent of the United States." This clause was changed to
read "whenever the principal officer shall be removed
 HUMPHREY'S EXECUTOR v. U. S.
602 Opinion of the Court.

from office by thePresident of the United States" certain

things should follow, thereby, in connection with the
debates, recognizing and confirming, as the court thought
in the Myers case, the sole power of the President in the
matter. We shall not discuss the subject further, since it
is so fully covered by the opinions in the Myers case,
except to say that the office under consideration by Con-
gress was not only purely executive, but the officer one
who was responsible to the President, and to him alone,
in a very definite sense. A reading of the debates shows
that the President's illimitable power of removal was not
considered in respect of other than executive officers. And
it is pertinent to observe that when, at a later time, the
tenure of office for the Comptroller of the Treasury was
under consideration, Mr. Madison quite evidently thought
that, since the duties of that office were'not purely of an
executive nature but partook of the judiciary quality as
well, a different rule in respect of executive removal might
well apply. 1 Annals of Congress, cols. 611-612.
In Marbury v. Madison, supra, pp. 162, 165-166, it is
made clear that Chief Justice Marshall was of opiii on
that a justice of the peace for the District of Columbia
was not removable at the will of the President; and that
there was a distinction between such an officer and officers
appointed to aid the President in the performance of his
constitutional duties. In the latter case, the distinction
he saw was that "their acts are his acts" and his will,
therefore, controls; and, by way of illustration, he ad-
verted to the-act establishing the Department of Foreign
Affairs, which was the subject of the "decision of 1789."
The result of what we now have said is this: Whether
the power of the President to remove an officer shall pre-
vail over the authority of Congress to condition the power
by fixing a definite term and precluding a removal except
for cause, will depend upon the character of the office;
the Myers decision, affirming the power of the Presideiat
 OCTOBER TERM, 1934.
Syllabus. 295 U. S.

alone to make the removal, is confined to purely executive

officers; and as to officers of the kind here under consider-
ation, we hold that no removal can be made during the
prescribed term for which the officer is appointed, except
for one or more of the causes named in the applicable
statute:
To the extent that, between the decision in the Myers
ease, which sustains the unrestrictable power of the Pres-
ident to remove purely executive officers, and our pres-
ent decision that such power does not extend to an office
such as that here involved, there shall remain a field of
doubt, we leave such cases as may fall within it for future
consideration and determination as they may arise.
In accordance with the foregoing, the questions sub-
mitted are answered.
Question No. 1, Yes.
Question No. 2, Yes.

MR. JUSTICE McREYNoLDs agrees that both questions

should be answered in the affirmative. A separate opin-
ion in Myers v. United States, 272 U. S. 178, states his
views concerning the power of the President to remove
appointees.

MOBLEY v. NEW YORK LIFE INSURANCE CO.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT.

No. 751. Argued May 6, 1935.-Decided May 27, 1935.

1. Repudiation of a contract by one of the parties to it, to be suffi-

cient in any case to entitle the other to treat the contract as abso-
lutely and finally broken and recover damages as upon total breach,
must at least amount to an unqualified refusal, or declaration of
inability, substantially to perform. P. 638.
2. A refusal by a life insurance company to pay a monthly disability
benefit to an insured, based merely upon an honest, but mistaken.