the government deposits from the United States bank that caused President Jackson to remove him.

Thus the right of direction, now a fundamental principle of our national administration, seems to have sprung from the right of removal, but it does not follow from this, now that the right of direction has come to be recognized, that its only means of enforcement is the right of removal. In United States v. Black (32) appeal had been made from the decision of the commissioner of pensions to the secretary of the interior, but the former had refused to carry out the latter's decision and mandamus was asked to compel him to do so. The commissioners suggested that there were other effectual remedies, such as a suit for damages or an exercise of the power of removal, so that it was not a proper case for mandamus, but the court did not concur in this view. It said: "A suit for damages, if it could be maintained, would be an uncertain, tedious and ineffectual remedy, attended with many contingencies, and burdened with onerous expenses. Removal from office would be still more unsatisfactory. It would depend on the arbitrary discretion of the President, or other appointing power, and is not such a remedy as a citizen of the United States is entitled to demand. We think that the case suggested by the petition is one in which it would be proper for the court to interfere by mandamus."

§ 95. Same: Statutory qualifications of this. But it is not true that the head of a department has the right of direction over all matters attached to his department.

(32) 128 U. S. 40.

Thus in Butterworth v. United States (33) mandamus had been asked against the commissioner of patents to compel him to grant a patent to R. Hoe & Co. in accordance with a decision of the secretary of the interior which reversed that of the commissioner, but the Supreme Court of the United States denied the right of the secretary to review the action of the commissioner in a case of this kind. It said: "In reference to this argument from the analogy of the general relations of the heads of executive departments to their bureau officers, it may be observed in this connection that, although not without force, it will be very apt to mislead unless particular regard is had to the nature of the duties entrusted to the several bureaus, and critical attention is given to the language of the statutes defining the jurisdiction of the chief and his subordinates, and the special relation of subordination between them respectively; for it will be found, on a careful examination too extensive and minute to be entered upon here, that the general relation between them of superior and inferior is varied by the most diverse provisions, so that in respect to some bureaus the connection with the department seems almost clerical and one of mere obedience to direction, while in others the action of the officer, although a subordinate, is entirely independent, and, so far as executive control is concerned, conclusive and irreversible." In these cases Congress had given a right of appeal from the commissioner to the supreme court of the District of Columbia, and the court said: "The conclusion cannot be resisted that, to whatever else supervision and direction on the part of the head of the department may extend (33) 112 U. S. 50.

in respect to matters purely administrative and executive, they do not extend to a review of the action of the commissioner of patents in those cases in which, by law, he is appointed to exercise his discretion judicially. It is not consistent with the idea of a judicial action that it should be subject to the direction of a superior, in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates. Such a subjection takes from it the quality of a judicial act."

§ 96. Right of appeal. Right of appeal ordinarily, however, lies to the head of the department but not beyond. Thus on receipt of an appeal of the members of Congress from the state of Rhode Island from a decision of the commissioner of the general land office, President Lincoln referred the matter of the right of appeal to him to the attorney-general, and the latter gave it as his opinion (34) that it was by no means the duty of the President to hear appeals from the various departments, though he might exercise his discretion in doing so, but that at any rate the President ought not to entertain appeals from inferior tribunals which should ordinarily be made to the heads of the departments. Where the matter was one that touched the authority of the register and receiver to take final action, without appeal to the commissioner of the land office or the secretary of the interior, however, the attorney-general advised the President that he might properly entertain an appeal from the secretary of the interior (35).

(34) 10 Op. Atty.-Gen. 463. (35) 15 Op. Atty.-Gen. 94.

CHAPTER V.

66

MODES OF OFFICIAL PROCEDURE.

SECTION 1. BOARD ACTION.

§ 97. Action of majority sufficient. The general law with regard to board action is well stated by Chief Justice Shaw in Williams v. School District (1) as follows: 'Another exception was taken, that the assessment was made by two only of the three assessors. It appears by the case that the other assessor received notice and was requested to act with them, but refused to do so. Where a body or board of officers is constituted by law to perform a trust for the public, or to execute a power or perform a duty prescribed by law, it is not necessary that all should concur in the act done. The act of the majority is the act of the body. And where all have due notice of the time and place of meeting, in the manner prescribed by law, if so prescribed, or by the rules and regulations of the body itself, if there be any, otherwise if reasonable notice is given; and no practice or unfair means are used to prevent all from attending and participating in the proceeding it is no objection that all the members do not attend, if there be a quorum. In the present case, all three having had notice and an opportunity to act, the act of two is sufficient."

(1) 21 Pick. 75.

§ 98. Irregular action of majority. In the case of McCortle v. Bates (2) a majority of the board of education signed an agreement requesting one Wachob to supply the town clerk with certain articles, agreeing to pay for the same, and at the same time directing the town clerk to issue an order on the township for the payment of the articles, and requesting him to call a town meeting at which they agreed to ratify the contract. They were later sued on the contract and the court held it void and said: "The board is constituted by statute a body politic and corporate in law, and as such is invested with certain corporate powers and charged with the performance of certain public duties. These powers are to be exercised, and these duties discharged, in the mode prescribed by law. The members composing the board have no power to act as a board except when together in session. They then act as a body or unit. The statute requires the clerk to record, in a book to be provided for that purpose, all their official proceedings. They have, in their corporate capacity, the title, care and custody of all school property within their jurisdiction and are invested with full power to control the same in such manner as they think will best subserve the interest of the common schools and the cause of education. They are required to prescribe rules and regulations for the government of all common schools within the township. Clothed with such powers and charged with such responsibilities, it will not be permitted to them to make any agreement among themselves, or with others, by which their public action is

(2) 29 Oh. St. 419.