Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
From an order of the district court sustaining defendants' motion to dismiss plaintiff's amended complaint, on the ground that it fails to state a claim upon which relief can be granted, plaintiff appeals.
The controlling facts averred in the amended complaint are: defendant Grant (for whom no appearance has been filed in this court) was the duly appointed United States marshal for the Southern District of Illinois, and was subject by law to the supervision and direction of the attorney general of the United States; on May 1, 1950, Grant, as principal, and the other defendant herein, as surety, gave bond in favor of plaintiff, conditioned on the faithful performance by the defendant Grant of all the duties of the office of United States marshal; said bond was duly approved by a district judge and recorded in accordance with the provisions of 28 U.S.C.A. § 544 (a); Grant received salary of approximately $11,500 from plaintiff for the period between June 15, 1950, and February 15, 1952, on his certification that he has properly and faithfully discharged his official duties during that period; "the provisions of the United States Marshal's Manual applicable to the defendant Grant during that interval required prior authorization or approval from the Department of Justice before marshals and their deputies could travel outside their respective districts except in effecting service of process; but that throughout the period from June 15, 1950, to February 15, 1952, the defendant Grant, 'without the knowledge or authorization of the Attorney General or the Department of Justice, absented himself from his office and engaged in extensive travel beyond the limits of the Southern District of Illinois in the conduct of activities outside the scope of his official duties as United States Marshal, and wholly failed and neglected to perform his official duties as United States Marshal'."
The amended complaint also states that "plaintiff has been damaged in the approximate sum of $11,500 which represents the salary paid by the plaintiff to the defendant, as set out in paragraph 6 above, and plaintiff makes no claim for nominal damages, or any damages other than the salary."
One of the specific grounds set forth in defendants' motion to dismiss is that "as an officer of the United States the marshal was entitled to all salary payments accruing during his tenure regardless of any misconduct or nonfeasance". Plaintiff states the contested issues before us in this manner:
"1. Whether a United States Marshal is entitled to retain salary accrued during his tenure of office despite gross misconduct, total nonfeasance of his official duties and prolonged unauthorized absence from his assigned district?
"2. Whether a United States Marshal's gross misconduct, unauthorized absence from his assigned district, and prolonged failure to perform any official duties constitute a breach of his faithful performance bond for which he and his surety are liable in an amount equal to salary payments made to him?"
1. Plaintiff contends that federal law controls the disposition of this case, while defendants' counsel differs but avers that the federal law and state decisions are to the same effect and therefore there is no occasion for us to resolve that question. Accordingly, we will follow the federal law. See Royal Indemnity Co. v. United States, 313 U.S. 289, at page 296, 61 S. Ct. 995, at page 997, 85 L. Ed. 1361.
2. The constitution of the United States, Art. II, § 2, U.S. Constitution, provides that 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."
The constitution thus divides federal officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. In regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in any of the manners indicated. United States v. Germaine, 99 U.S. 508, 509, 25 L. Ed. 482, 483. In that case the court said:
"* * * That all persons who can be said to hold an office under the Government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt."
Congress has provided for the appointment of United States marshals. 28 U.S.C.A. § 541 reads:
"(a) The President shall appoint, by and with the advice and consent of the Senate, a United States marshal for each judicial district. * * * (c) Each marshal shall be ...