Daily American organ. [volume] (Washington, D.C.) 1854-1856, 1856-09-18

ton whether Mr.. Tysons suretesould be liable for
this sum ifit should be placed IN his hands thai
he had boon rejected bys Senate Mr. Legares opin-
ion is clear, and, as u seems TO me, founded upon
unanswerable reasoning, that his original appoint
ment still continued and would endure through the
whole session. Notwithstanding his subsequent nomi
nation and rejection, unless sooner terminated by
death, resignation, or removal by the President
AZ mere matter of legal science, ! must hold the
opinion that the appointments made by the Mayor
during the recess do continue through the ensuing
session, unless terminated as above suggested and
that no vacancy occurs until that session has termi
mated or in other words that ii there be no DEATH
resignation, or removal by the Mayor, or complete
new appointment with the consent OF the Board the
result IL that new vacancy occurs IN the ensuing
recess and that the Mayor has the legal power 10 fill
that vacancy by the appointment OF the
other person. totes quoIss Repeated instances have
occurred of the denomination OF national as well
municipal officers who had been Immediately before
/ rejected but were finally confirmed.
express opinion upon the proprieiy or neces-
sity ofsuch denominations in the present cases, for
not informed of the considerations which control
the action Of the Mayor in that behalf nor if were,
would i be any part Of my official duty to remark
upon them. am simply TO express legal opinion
upon the extent of his powers for their exercise in
good faith and 10 public ends he is responsible TO the
people who elected him stE
But, lest should be misunderstood,I must say
distinctly that do not hold that the powers which,
lind by the terms Of the charter expressly conided to
the Mayor on the one hand, the Board of Alder
men on the other, can be, by either authority in
spirit of evasion lawfully exercised so as TO defeat
the just powers of the other II was doubtless the
theory of the charter that each would proceed accord
ing to the dictates Of enlightened judgment with
due regard 10 the other, and under of equal
responsibility TO the people. How far the should
exercise his power of re-appointment aud re-nomna
on the other its power of rejection questions
TO be determined by each respectively In the nature
of things there must be large discretion In each 1t
certainly not the intention of the charter that the
rejection of nominee should be absolutely final and
conclusive of his untness for the place, or that II
should at once compel the Mayor who may be per-
fectly satisfied of his superior fitness to refrain from
re-appointing him temporarily, until he can either
select person Of equal qualifications or remove the
objections to the original nominee.
Having thus laid before you the reasons upon
which my conclusions are based proceed now TO
answer the specific "interroga :ories" submitted.
/. The first "interrogatory' calls upon me for the
legal definition OF an officer of the Corporation y
To this might reasonably object, nothing is
difficult in my profession than to construct detni
ton of an abstract legal idea composed of number
Of elements. regret that the cases referred were
not specified. Nevertheless with great difidence,
| submit the following: e.
An officer Of this Corporation is one who is law
fully charged with the authority and duty to execute
the laws of the Corporation in any department. there
| Of; it being understood that such authority and
duty are in their nature permanent and general as
contradistingushed from the authority and duty of
| a mere contractor, servant laborer engaged by
agreement for particular work or service.
To the second interrogatory" reply: f"f
That the charter contemplated one or more dis
nct stated sessions in the year. to be continued by
adournments until the close of such session or SEES
sions respectively. That the number of these SEES
sions left to the discretion of the Corporation,
to be prescribed by ordinance. That the act of 1882
(re-enacted June 8, 1859 makes in addition to the
| second Monday in june, each and every Monday,
from the fourth Monday IN June to the last Monday
in May, inclusive, the beginning Of distinct stated
session. That there is recess between stated ses
sions, whenever the Board adourns leaving the time
| of its re assembling TO be as prescribed by law.
| That the app pintments m de by the Mayor lring
| such recess endure until the next following recess;
when, In the recess, the offices become vacant. That
the Mayor is not bound by the charter to nominate
to the Board to fill such vacancies, any vacancies,
the first session Of the Board after the shall
have occurred butmay in the just exercise of sound
discretion and in good faith, continue TO re-appont
| temporarily, as he at first appointed temporarily,
until he can find such nominee will be equally
acceptable to himself and to the Board since neither
has the power to compel the other to nominate to
confirm, las the case may be,) each being wholly in.
dependent of the other and having distinct duty to
perform. That when such re-appointments have
been made by the Mayor the offices are not vacant
but are lawfully filed by the appointees.
To the third "interrogatoryD reply:
That such re-appointments after rejection, are
within the legal competency of the Mayor as herein
before explained; and that of consequence this Cor
poratio is bound for the payment to the incumbents
respectively of the salaries attached by law to their
respective offices, and that the same can be recov-
cred DIV actOnS AT law, Win interest," ana COSTS.
| To the fourth "in errogatory' reply:
That nomination by the Mayor does not enttle
| The person nominated TO the salary affixed to the
office. Nomination is one thing and appointment is
another and very different thing. valid legal APP
pontment alone entities the officer TO his salary for
It is only by appontneat that he becomes an officer
If he be lawfully appointed in the recess, we have
seen that his subsequent nomination and confirma-
ton do no. terminate his appointment. The nomi-
nation is simply suggestion for the permanent APP
pointment when this is consented to, IL remains for
the Mayor to mike the appointment and tits entirely
/ within his discretion not to make it, although his
i nomination have been confirmed
have the honor to be, sir your most obedient
1 servant j. M. CARLISLE,
/ Attorney of the Corporation of Washington.
| To the PREsIDEsr of the Board Of Aldermen
Copy Of the Resolution Of the Board Of alder
In BoAnD OF ALDERMEN, August 90, 1868.
Whereas, by the third section of the charter of
/ 1920, the Mayor is authorized to nominate, and,
with the consent of the Board of Aldermen appoint
| to all Offices under the Corporation; and whereas
the Mayor of the city retains in office persons from
the appointment of which the consent of the Board
Of Aldermen has been withheld, and weeks have
elapsed since that consent was refused and n re-
nomination of several of those persons to whose APP
pointment the Board of Aldermen declined to g con-
II sent has not been made; therefore
1 Resolred, That the Secretary of this Board be d
rected to request the Attorney of the Corporation to
/ communicate to this Board, at his earliest convent
ence his opinion, in writing in answer to the follow
| ing interrogatories
fst What constitutes officer of the Corporationp
I'd. The Mayor being authorized g to appoint per-
sons to fill up all vacancies which may occur during
the recess of the Board of Aldermen, to hold such
appointments until the end of the then ensuing SEES
sion does the interval between the regular meetings
on each Monday, after the fourth Monday in June
nually authorized by law of the Corporation con-
stitute n recess in the in which II is employed
in the charter? and, " so, does not any Office which
may be filed by the appointment of the Mayor, du
ring such recess, until the end of the then ensuing
\ session" become vacant unless such appontee shall
be nominated TO the Board of Aldermen at the then
Il