"3. Final judgments are alone capable of execution abroad. A final judgment is one which constitutes res judicata and has become and is still enforcible by execution in the country where it is pronounced...."

"II. No state shall make execution of foreign judgments conditional on reciprocity."

It will be noticed that the eleventh resolution would expressly forbid the consideration of reciprocity in the execution of foreign judgments.

On principle it would seem that reciprocity should not be demanded as a condition precedent to the recognition and enforcement of foreign judgments. As pointed out by Chief Justice Fuller,18 a right is acquired under the foreign judgment, and generally the courts of the United States will recognize and enforce private rights acquired under the laws of a foreign state. If the doctrine of res judicata were applied to all foreign judgments, it would foster uniformity of decision with its recognized advantages; it would facilitate a closer bond between this country and other nations; it would greatly benefit foreign business relations; it would reduce litigation in our courts; and it would be relegating to the past an old policy which has long since lost its desirability as a factor in friendly foreign relations.

As stated by the Supreme Court in Postal-Telegraph Co. v. Newport,19 "The doctrine of res judicata rests at bottom upon the ground that the party to be affected has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction." Foreign judgments, whether in favor of plaintiffs or defendants fulfill all the requirements of res judicata as laid down by the Supreme Court, and there seems to be no sound reason why they should not be so treated.

In conclusion, it is submitted that no distinction should be made between foreign judgments sued upon and those pleaded in bar, and thus it would seem that the case of Johnston v. Compaigne Generale Transatlantique is in accord with both principle and authority, while it is difficult to reconcile the decision in Cowens v. Ticonderoga Pulp and Paper Co. with either principle or New York authority. Donald P. Blake.

jurisdiction in matters arising under such contract. Exceptions to the principal rule. (a) The court of the place where a wrong has been committed has alternative jurisdiction, (b) In matters of contract, the court of the place of the making of the contract and the court where the contract is to be performed by the defendant have alternative jurisdiction 8. To found jurisdiction it is necessary that the citation or writ be served personally on the defendant or, if the prescribed service be other than personal, his knowledge thereof proved. The appearance of the defendant is an admission of his knowledge. 9. Service of citations, writs and notices shall be freely admitted in all countries. IO. No exequatur shall be granted in a case in which the defendant has not had a fair opportunity of being heard in person or by representation."

is Hilton v. Guyot, supra note 16.

19247 U. S. 464, 476, 38 S. Ct. 566 (1918).

Constitutional Law: President's power of removal.-One of the most important constitutional questions in the history of the United States was decided by the Supreme Court in Meyers v. United States1 where it was finally determined that Congress may not, by any law, prevent the President from removing any one in the Executive Department whom he has appointed. The appellant had been appointed by President Wilson, by and with the advice and consent of the Senate, to be postmaster of the first class at Portland, Oregon, for a term of four years. The act of Congress under which the appellant was appointed provided that: "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law." President Wilson removed Meyers without the consent of the Senate and Meyers brought an action to recover his salary from the date of his removal. The constitutionality of the act of Congress requiring the consent of the Senate to removals was thus put directly in issue, and the President's uncontrolled power was upheld by the Court, three justices dissenting.

The Constitution does not expressly provide for the removal of federal officers. The question whether the President could remove the Secretary of Foreign Affairs without the consent of the Senate was fully debated in the First Congress and it was recognized that he had the right to do so. The President's right of removal was thereafter recognized until 1867 when the Tenure of Office Act was passed by Congress limiting this right. This act, after amendment, was repealed in 1887.5 During the intervening years the Presidents contested the constitutionality of the act, and since the repeal the President's right to remove had, until the present time, been consistently recognized, though the statute with regard to removal

147 Sup. Ct. 21 (1926).

219 Stat. 78, 80 (1876).

7

"SEARGENT'S CONSTITUTIONAL Law (1830) 413; 2 Story on the ConstituTION (5th ed. 1891) sec. 1542; 1 Annals of Congress 383.

414 Stat. 430 (1867). But see Marbury v. Madison, 1 Cranch 137, 162 (1801), where Chief Justice Marshall, referring to the presidential removal of a justice of peace in the District of Columbia said: ". . . since his commission was signed by the President, and sealed by the Secretary of State, (he) was appointed; and as the law creating the office gave the officer a right to hold for five years, independent of the Executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country." There have been various explanations of this statement by Chief Justice Marshall. In Parsons v. United States, infra, note 7, and in McAllister v. United States, 141 U. S. 174, 11 S. Ct. 949 (1891), it was said that the language of the Chief Justice was due to the peculiar relation of Congress to Territories. Chief Justice Taft in the instant case (supra at p. 28, 41) considered the statement as obiter dictum, while the statement was relied upon by Mr. Justice McReynolds in his dissenting opinion (supra, at p. 30-36).

$24 Stat. 500, c. 353 (1887).

"President Johnson vetoed the act as unconstitutional, 6 MESSAGES OF THE PRESIDENTS (1867) 497; President Grant recommended its total repeal, 7 MESSAGES OF THE PRESIDENTS (1869) 38; and see 8 MESSAGes of the PRESIDENTS (1886) 379, 381, for the attitude of President Cleveland.

"Parsons v. United States, 167 U. S. 324, 17 S. Ct. 880 (1897); BURDICK, LAW OF THE AMERICAN CONSTITUTION (1922) sec. 29; 2 STORY ON THE CONSTITUTION (5th ed. 1891) sec. 1543.

of postmasters remained on the books. Examples of the exercise of the President's right are found in President Adams' removal of Secretary of State Pickering in 1800, and the removal of Secretary of the Treasury Duane in 1833 by President Jackson.

The opinion in the Meyers case was rendered by Mr. Chief Justice Taft and is based primarily on an interpretation of the Constitution itself. Closely following the reasoning of James Madison as presented to the First Congress, the Chief Justice points out that the Constitution vests the executive power in the President; that ordinarily the appointment and removal of executive officers are executive acts; that one of the chief purposes of the Constitution is to separate the legislative from the executive functions; that these functions should be kept separate in all cases in which they are not expressly blended;10 and that the requirement of the second section of Article II," that the Senate shall advise and consent as to presidential appointments, is to be strictly construed; hence the grant of executive power to the President in the first section of Article II carries with it the power of removal. Furthermore section 2 of Article II expressly recognizes the power of appointment, and under approved principles of constitutional and statutory construction the power of removal of executive officers is incident to the power of appointment,12 the restriction on the power of appointment, by the provision that the Senate must give its advice and consent, being one of the express checks by which the three great departments were to be balanced. But the power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the express mandate that the President "shall take care that the laws be faithfully executed" is considered it emphasizes the necessity for including within the executive power, as conferred, the exclusive power of removal.

It was argued that, by the provision that "the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the Courts of law or in the heads of departments," Congress might control the power of removal of such

Art. II, sec. I (1).

'Kendall v. United States, 12 Peters 524, 610 (1838); 2 FARRAND, RECORDS OF THE FEDERAL CONVENTION 56.

10 Meriwether v. Garrett, 102 U. S. 472, 515 (1880); Kilbourn v. Thompson, 103 U. S. 168, 190 (1880); Mugler v. Kansas, 123 U. S. 623, 662, 8 S. Ct. 273 (1887); I Annals of Congress 497.

"Art. II, Sec. 2, (1), "(The President)... shall nominate and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the Courts of law, or in the heads of departments.'

12Ex parte Hennen, 13 Peters 230, 259 (1839); Reagan v. United States, 182 U. S. 419, 424, 21 S. Ct. 842 (1901); Shurtleff v. United States, 189 U. S. 311, 315, 318, 23 S. Ct. 535 (1903); Wallace v. United States, 257 U. S. 541, 544, 42 S.Ct. 221 (1921).

13 Art. II, Sec. 3, ". . . he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States."

14 Supra note 11.

officers in any manner it desired. The Chief Justice answered this contention by saying, "But the Court never has held, nor reasonably could hold, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers." It has been held15 that Congress, in committing the appointment of inferior officers to heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal, but the condition upon which the power of Congress to restrict the removal of inferior officers rests is that it vests the appointment in someone other than the President with the consent of the Senate.

In answer to the objection that the power of removal without the consent of the Senate would open the door to a reintroduction of the spoils system, the Chief Justice declares that the civil service laws were aimed at that evil, and that they could be extended to all inferior officers if desired, and the independant power of removal by the President would not interfere, for it is only the intervention of the Senate in their appointment and not in their removal which prevents their classification under the merit system.

The Court concludes that the provisions of the act of Congress, restricting the President's power of removal, is unconstitutional, as was the Tenure of Office Act, and other legislation of the same character.

Mr. Justice Holmes in a short dissenting opinion declares that, inasmuch as the office in question owes its existence to Congress, he has "no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end."

In the dissenting opinion of Mr. Justice McReynolds it is submitted that the Government is one of limited and enumerated powers, and "nothing short of language clear beyond serious disputation should be held to clothe the President with authority wholly beyond congressional control arbitrarily to dismiss every officer whom he appoints except a few judges." He declares that generally the removal of an officer is an executive act, but that the prescribing of conditions for removal is legislative. He points out that the present case is one involving an inferior officer with a specified term of office, distinguished from the case debated by the First Congress, for there the office involved was the Secretary of Foreign Affairs, a superior office, with no specified term. He then declares that there has been no usage or acquiescence by Congress in the unrestricted removal of inferior officers holding for a definite term. He relies on the provision in the Constitution whereby Congress is expressly authorized to make laws which shall be necessary and proper for carrying into execution all "powers vested by this Constitution in the Government

15United States v. Perkins, 116 U. S. 483, 6 S. Ct. 449 (1886). 16 Art. I, Sec. 8 (18).

of the United States, or in any department or officer thereof," arguing that even if it is admitted that the Constitution vests all executive power in the President, it does not follow that he can remove officers in defiance of congressional action, for Congress is empowered, in express language, to make all laws necessary and proper for carrying into execution powers vested in him.

Mr. Justice Brandeis, in a dissenting opinion, declares that Congress is given the power to create and fix a tenure for inferior offices, and that, when Congress provides that the officer shall hold the office for four years unless sooner removed with the consent of the Senate, it prescribes the term of tenure. He grants that the power of suspension might be implied to be in the President, and that power to remove as well as to suspend a superior officer might be deemed indispensible, and hence inherent, but power to remove an inferior administrative officer, appointed for a fixed term, cannot be deemed an essential of government. He also points out the distinction which has been drawn between high political officers with no definite tenure, and inferior officers having a fixed tenure. He negatives the practical disadvantage of restraint upon the President's power of removal by emphasizing the President's constitutional right to suspend an officer and designate another to act temporarily. As to the President's duty to see that the laws are executeed, Mr. Justice Brandeis declares that, "The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted."

It would seem that by the decision rendered in the Meyers case, the President's power to remove is not solely attributable to the power to appoint. If it were, the decision would not fully protect the independence of the Executive; for as to the inferior officers, Congress might vest the power of appointment in the heads of departments, and thus deprive the President of his power to remove them.. As the President's power to remove is based upon constitutional authority, and incident to the executive power it would seem that he would continue to have the power to remove executive officers even though the power of appointment were taken from him. This question was left open, however, as were many other important and related questions which were not directly involved in the case.

Are the members of the Federal Trade Commission and the Interstate Commerce Commission "executive" officers so as to be subject to the President's unrestrained power of removal? Or will they be classed as "quasi-legislative" officers because of the Trade Commission's fact-finding duties in aid of Congress in formulating legislation; and in view of the Interstate Commerce Commission's so-called legislative duty of imposing reasonable rates upon carriers? The Supreme Court of Pennsylvania has held1 that a Public Utility Commissioner is an agent of the Legislative and not of the Executive Department. Will the Supreme Court make the same distinction?

17Commonwealth v. Benn, 284 Pa. 421, 131 Atl. 253 (1925); (1925) 74 U. Pa. L. REV. 296.