New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-05-13

abilities only to the isS whose sgen. IN nnn he H.
srS xs.assor NAV resxsmine and rectify his assess
49, hnt only as @ Court VI Error may revise anc
oprect the decisions Of inferior tribunals on appeal
have no difficulty then in determining thai an as
TIE Constitution. The tests that have applied in a.
- rtanng the legal character Of his employment were
those adopted with like results in the case Of Inspect
oys az the Customs under the Acts Of 1879 and slo
by my predecessors Mr.. Writ, Mr.. Berrien, and MI
Iegare. All Of those distinguished gentlemen were OF
opinion that the inspectors contemplated py t1ose
Eatutes to all intents and purposes ofcers OF .o
United States, and not the deputies employees OF
Of the collectorss Mr.. Legare was of opinion sonSr
Quenly that if the Act Of 1899 contemplated .ne az
point rnent Of occasional inspectors by tie coee'
null and vod and that It's con-
only upheld the construction that tne h oonf
template the Secretary Of the treasury az ''0 "pF
ing power e op. ADJ; OPP l64) .o,;s;on If the
7 am Of opinion therefore that the provision oi tle
Act of 1864 10 which have referred, vessng tne
Of appointing assistant assessors III 'no i''p'''
SCISSORS is clearly unc0nstituuonai. .,,, .rt,o,itv
III The second question is; In whom Is the a9shoI!
az annontine these officers by law now vested
18th section Of the act of March 1902 enacIs ' h
all provisions of, Of an. my, i STe hereby S epsSed
The effect of this provision is TO repeal se ~ tbe
cot Of jane 80 1864 CO Stat 22Q as annoinnr
Secretary of the Treasury the power OF sPfS,,nsi
with the approval of the COnmissioner u r
Revenue, the Assistant Assessors. II teo nd the
lad not been introduced into the new suhority
statute had simply changed the appointing in an
tho Affect Of yestng the power OF appointment Az IA
officer incapable of constitutioray exereiss ~
simply have been to receive Se Trrasnry But the
act ~ ls65 beside comforting, or attempting 70 coi'
ON the assessors the appointment o. tnsir i
repeats the provision OF le ~ ve Il " tbs Secreary
minority and oonstituti0Ray gave IL 10 lhe oosfo'
That ,sneai Congress. Of course entirely oompe
tent 10 effect The law therefore has estaonsneu an
oaee and not designated any competent pubic au'
thority as authorized TO appoint the officer on who
then deyolyed the power OF hlng the oineef an vi
nnion that the President is by the Constitnnon vest
cd with authority to appoint assistant assessors uuel
the existing circumstances The Consututio5 eohieis
on the President the power to nominate anu oy en
with the advice of the Senate 70 appoint all oheers OF
the United States whose appointments are mol ia Ine
instrument otherwise provided for and whose oeer
shall be established by law. In the case OF inferior
ofcers, Congress may provide for their appointment
NV The President alone the Heads Of Departments, OF
the Judicial Tribunal! When Congress creates such
efoes- and omits 10 provide ior aPpoihtnsns " aS
or provides in unconstitutional way for sseh appoint
pents the officers are within the meaning OF the Con
stitution ofcers Of the United St0te shose oponrs'
are therein ohsrisiss prorid'd Jor me power u
pointing such officers deyolyes the Presidents as
sstant assessors under the views here expressed are
within that class. The provision IN the act on 1eoo.
touching those officers being null and Voiu anu ne ao'
of 1854 TO the extent just mentioned beng repeated,
there is in effect existing legislation when coniers
on any public authority the power OF appointing lose
officers The CONSTITUTIONAL power OF the fresiueht ~
this emergency is called into exc reese lie alone mas
authority 10 commis sion the assistant assessors
Ill The third and last question on when you nave
desired an express Of my opinion Is vhether is e
duty Of the President TO exercise the power o
appointment in tie of these officers IN view OF ns
express provision Of the act Of 1864 distinctly
the will Of Congress that be should not appoint them
and directly against that expTC sslOp OF the VIII OF Inc
Iegsature and especially before any Judicial detern
nation has been had of the hrsf two qnesuohs 70 "ho
Ihaye directed my attention.
II the President should be of opinion, on the lore
going reasoning that he possessed the poH consulu
honay to make appointments TO the once OF Assl.a'
Assessor tank that is clearly HE day TO exercs
that power The question of his constitutional eothor
in the case presented depends upon the view that To
President may take OF the ,hn & u IF "
fully concur IN the view have taken OF the question
there escale from the conclusion that he alone ca
lawfully fill the office 1t is his duy to do all that
has lawful poSer to do when the occasion requires Al
exercise of his authority To DO les, on such an coca
sion would be. pro farto TO abdicate nn nIgn ONCE
The Constitution il the supreme lava law superior
and parsmoun. 10 any other II any Law be repugnan
10 the Constitution 1t is yoidn other words is nc
law. 1t is the peculiar province ana duiy OF 'ne ouu
sia Department to say what the law is In particular
eases but before such cases arise and in the absence
Of authoritative exposition Of the law by thar Depart
Dent It is equally the duty OF the oheer nooing 70,
the purposes Of his conduct and action well The
operation Of conflicting laws the notwithstanding
sf any one. 1t will be observed. let me remark IL
conclusion that the action Of the President in appoint
ing TO the Office in question will rot preclude or afec
Judicial inquiry and decision On the points that have
been presented. II two persons should claim The
authority Of exercising IN any Assessment District
the Office Of Assistant Assessor one by appointment o.
She President and the other by appointment OF the
Assessor the question would be then peculiarly one oI
judicial Observation-Disclosures either and which Of
such persons entitled to exercise the Office
But apfrehend that. practically no such contesta
tion will. arise. understand that heretofore the
Assessors have virtually exercised the power OF ap
pointing their assistants and it is not improbable that
she President If he commissions the officers VIII ADOPT
Substantially the course that pursued under the
sct Of ls64, by the Secretary Of the Treasury.
lam Sir very respectfully your obedient servant
JAMES SPEED. Attorney General