Here is an oddity that I just located in the Yale Law Journal, Vol. 3, No. 6, June 1894, pg. 228:

"U.S. Marshals - Deputies - Action for Compensation - Powell v. United States, 60 Fed. Rep. 687 (Ala.). In an action by a deputy marshal for compensation for services rendered, it was shown that as the marshal, alone, was the salaried officer of the government, and the deputy received pay merely through fees, there was no privity existing between the deputy marshal and the government. The conclusion was that the deputy marshal was not an officer of the United States and, not being a party to a contract, could not maintain his suit."

Now, this appears to be a federal civil lawsuit in which a commissioned deputy U.S. marshal was filing a civil lawsuit to recoup fees that he claimed was owed to him by the federal government. Granted it is an Alabama case, but I thought we could get some discussion going. Has anyone ever run across such a claim of a deputy marshal NOT actually being considered an officer of the United States?

Diron, I've never come across anything holding a DUSM was not an U. S. Officer. I believe DUSMs can be defined as U. S. Officers, but, apparently this was a hot issue in the late 1800’s, as there were several State and Federal court decisions dealing with various aspects of what defines a U. S. Officer. Seems it might still be an issue as in 2007, the General Counsel for the Executive Branch put out a memo on the definition of a public office. One semi-hidden statement in that memo struck me as it seems the Supreme Court, while not silent, has not given a comprehensive definition of an Officer of the United States. The problem appears to be in the language of the Appointments Clause of the Constitution which sets out two essential characteristics of a federal “office” as a position, however labeled, is in fact a federal office if (1) it is invested by legal authority with a portion of the sovereign powers of the federal Government, and (2) it is “continuing.”
Historically, Justice Marshall explained, “An office is defined to be ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.” Thus, an office could be said to involve the performance of public duties. The public authority to arrest criminals, impose penalties, enter judgments, and seize persons or property constitutes delegated sovereign authority. Marshall said the first federal marshals, for example, “were ministerial officers,” required “‘to execute . . . all lawful precepts’ directed to them,” and their instructions “dealt normally with a particular person or persons and required a specific action to be performed at the direction of a court.” A ministerial office has been described as one that “give[s] the officer no power to judge of the matter to be done, and require[s] him to obey the mandates of a superior” and is a public office. Moreover, Chief Justice Marshall explained that “if a duty be a continuing one” and “if those duties continue, though the person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”
The courts have sometimes discussed several additional criteria, beyond the two elements of delegated sovereign authority and continuance, as relevant to whether a position is a public office and when an individual is an officer. These include method of appointment, oath, commission and emolument. Most of these are usual incidents to the office, but none are necessary elements. Emolument or compensation is not essential in defining the office. One case said that: “Like the requirement of an oath,” provision for pay “may aid in determining the nature of the position, but it is not conclusive as the salary or fees are mere incidents and form no part of the office.”
In 1898, it was held Deputy U. S. Court Clerks were U. S. Officers, so I would hold DUSM’s are ‘ministerial’ U. S. Officers as they are invested with specific, albeit, narrow legal authority from the sovereign powers of the Federal government and the authority is continues even though the face in the position changes.

Hi Diron,

The USDM Certificates I've seen (not that I've seen all that many) make it crystal clear that the USDM is a duly appointed agent of the Marshal. Here's the revelant language from a USDM Certificate for the Eastern District of Arkansas in 1884:

"And I do hereby grant unto him, the said ____ full power and authority as my Deputy Marshal throughout the said district, to use and exercise the said office of Deputy Marshal, until he shall be legally discharged therefrom. And I do fully authorize and empower him, my said Deputy Marshal, to execute any and all legal precepts and duties that might of right be required of me as Marshal, as aforesaid. And I do further declare all his official acts valid as of done by myself."

I'm guessing that in the case you found the court's concern was more to the standings of the parties, not so much the issue of whether the USDM was an official or officer of the US. In other words, given a dispute over pay, the USDM may have recourse against the Marshal, whose agent he is, but not against the government itself. The courts have long been very careful in limiting the extent to which the US government can be named as a party in a civil lawsuit. But again, I'm no lawyer.

--meursault

Very interesting insight and much appreciated you guys.

Something that has struck me as almost comical (though given the severity of the topic, it's anything but funny) is the media of the late 19th century into the early 20th century. I have been looking in a ton of newspapers from all over the country in recent years and it seems that every time an officer is noted as having been killed in Indian Territory or Oklahoma, the reporters is generally unemotional. However, if you look at the reports of deaths of officers in other states (I saw one last night where an officer was killed in Florida)...the reporter makes it sound like the sky is falling. It seems that given the large number of law enforcement officer deaths in Oklahoma's history, the media began to take an almost "here we go again" attitude when they reported on the death of an officer in the I.T.

Just an observation.