Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1826-01-21

and shall die, or whose office shall, by
other means become vacant, which Is 10
be filed during the recess. Ii we ask
the question, what office is here said
shall be filled Is it not plain that the
answer must be, it is the office of him,
who, during the recess ofthe legislature,
shall die, or by any other means become
vacant, if the right to such appointment,
is by the constitution vested in the Gene
raj A ssembly, or in the Governor and
Senate can the right then to fill such an
office, where there never was an incum-
bent, attach Surely not.
There has, however, been decisions on
a similar provision of the constitution oil
the United States, which is by no means
as plain and explicit as ours; and we are
not left 10 ingenious speculations, and to
abstruse pathological Determinations.
We have practical illustrations oil the
rule, and the evident justice and proprie-
ty OF il, is, think, not now TO be ques-
toned. The third member Of the second
section of the second article of the con.
stltution of the United States, declares,
that "ihe President shall have power 10
fill up all vacancies that may happen,
during the recess Of the Senate, by grant
ing commissions, which shall expire al
the end Of their next session. Under
this article, the President commissioned
ministers negotiate the treaty OF Client,
during the recess of the senate. The
Senate, however, so far from acquiescing
in ba of he mi
tested against it at their succeeding ses-
sion. The sense of the senate was again
expressed to the same effect, on the goth
April, 1922, when bill was before that
body, making an appropriation 10 deiray
the expense Of missions to the South
American states and it was then dis
tiDctly understood to be their opinion,
that it is only in Offices which become
vacant during the recess, that The Presi-
dent is authorized to exercise the right
Of appointing to Office, and that in origin
al vacancies, where there has not been
an incumbent of the Office, such power
does not attach to the Executive. And
OF that occasion, an amendment which
had been proposed, providing tina, the
President should not appoint any Minis
ter to the South American states, but
with the advice and consent OF the senate,
was, therefore, Withdrawn as unnecessa-
ny. Again, in a report of committee
OF the Senate oil the 25th of the same
month, 1922, i, was distinctly declared,
that the words, " all vacancies that may
bahhen during the recess of the Senate"
H. can vacancies occurring from death, !
res lgnation, promotion or removal. 1t
was asserted, that il the Senate were in
session, when officers are created by ia7v,
which were not before filled, and nomina-
tiens be not then made to them, by the
Prssidenl,the President could not appoint
after the adjournment OF the Senate, be- !
coAse such vacancy does not happen du- I
ring the recess. The report may be
found in Niles Register, 29th. August,
1922.
Can there then be doubt that the
Executive has neither the power nor right
to make recess appointment, where the
vacancy is an original one? or rather
where there has never been an incum-
bent of the office? And would it not be
an assumption of power not delegated
by the constitution nor warranted by
law
If this be true, then whatever may be
the fact, as it regards the person making
the appointment, the applicant, in the
present case, has not shown a clear legal
right to the office.
But it is said tha, this Court has no
pow err TO inquire whether the appointing
officer had the right or not; nor whether
he kept within the pale Of the cons'itu-
ton, when he did the act. That, having
determined it 10 be an appointment which
he might make, this Court is precluded
from looking to the exercise Of the pow
or under which it is done, and must con-
slider it as legally and constitutionally
done. Cases, which it is said are anala
gous, have been put, and relied on with
apparent earnestDess and confidence.
think that in those cases, a distinc-
ton, which is an apparent and important
one, was not noticed. The distinction is,
between the power given to do an act,
wilhin the Judgment and discretion Of
the person to whom the power is abso.
lutelv con6ded, and the limitation on the
power to do it in particular manner
and at a particular time. The question
in the case before the Court, is not who
Their the officer has discreetly exercised
his appointing power, but whether he
possessed such power-or rather whc-
Their there was not q total absence OF