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


TsaAvsr DsPr., Ones o. TxrraHAL RsysMs.l
WARRINGTON, April D. lWes
SIR: Section Of the Act of Congress Of jun
30 1864 relating to Internal Revenue conferred a ~
Secretary Of the Treasury the authority of sppOnnG
Ia Assistant Assessors.
BY the Act Ut March J, 1885, 20 much Of the Act &
June 30 1854 conferred that authority IL rspsalsA
AID it is provided that the Assessor shall appoink w
the approval Of the Commissioner one or more Ado
ant Assessors.
! Has Congress tho constitutional power 10 give 4
Assessors the appointment Of their sssistauss By =
section of the second article Of the CoustutisA
the President sha appoint sll officers which are not h
the other wise provided for aud which sAay
I be established by law. But the Congress may, q
law vest the appointment Of such inferior officers {
they think proper in tho President alone In the ooeo
OF law or In tho heads OF departmental
The first question that arises In the conndefaeloa
the subject IT, an Assistant Assessor an otioerf ~
i>nOt the mere deputy 81 the Assessor Hts appoiO
nent confery upon HIN powers Of which the Asseeee
cannot deprive him. and devoves on hin duties VIII
the Assessor cannot excuse him from performing ~
place ia made vacant BY tue death or resignation
Inc Assessor His assessments are official acts WINS
can be modified only on appeal and no msy even asseA
the Assessor himself Clerks OF courts have been a.
termined to be inferior officers, within the meaning
the Constsstion and 80 have justices OF she reaee
the several departments OF the Government fall wiz
in the same class E1 parte Hennen. 10 Peters ~
And do Deputy Marshas under the net Of tho 24th
September 1882 which requires Of such deputy On oao
Of Office and provides that in Of the dsdta Of ~
arshs TIE deputy shall continue In office, and perfoF
it, functions in the ssme Of the deceased see JIM
STATE, 9: LHsFy IN e. X the
spec Of bis duties he is an officer; United StatesM
Maurice, Brock. l02 1t seems Therefore clear thas
an assistant assessor Is IN tss @eaning sne USns
officers whom Congress may authorize the head ~ a.
pa tment or the courts to appoint Bat Congress.
tie late act has not authorized either tho head OF ~
proper department the courts TO appoint Assistant
Assessors but mas repealed the act Of Jube Both, l9A
hieh gave that authority TO the secretary II the Teao
nry ana has assumed to place in the hands Of the -
SCISSORS.
Congress can doubtless withdraw the power they hae
previously given. but they give It otherwise than =
Constitution Provides 10 the head Of departmss&
VI y court oflaW
nv the article cf the Constitution already referred -
the power Of appointing all officers OF the United Satee
whose appointments are not otherwise PROVIDED Tor
the Constitution, ana which shall be established By Law
a vested in ID. President On him devoves the dug
seeing that the laws faithfully executed and ~
rrerogatlves and responsibilities Of te whole Executive
Department of the Government When tLe law cresteo
an ofiae and the necessity for the appointment d -
oce be subordinate superior 1t becoaes the Prov
luce OF the President TO make the appointments naieo
ns eAceea ,o Ssset IN WV Hore Cor
gross has failed axe provision in the only way 70
which WAS competent far the body to make IT.
IL therefore 20 l0ioT an lnsvitiUio Hokso&
sequence that che commissions to assistant aseesor
mast proceed from she President and bear ms Sgns
tsIe
This conclusion involves inconvenience doubtless
and adopted and acted upon, the Intention OF Cos
gre.s III he frustrated. Bat know OF no better 81
safer way for admin strative officers 10 proceed than
take the law NJ find II written. aad To pursue u
The .y In this case Is the Constitution, and whatev
enes or coBtradicts that has not the forcc
law. Dy that instrument the partition OF powers -
coriing to the paramount will OF the people Is made
anl l. tie duty Of each department u the Govern
merit, Legislative Executive and Judicial " observe
10 all then acts.
Ia carving the law, however into execution. -
difficulty In giving effect to the purpose VI the act
Congress respect such rhsil BE- the pchsure u
Inc prnctoe, nominate their assistants. and the nomt
natioy lie approved commission signed BY the Presb
deut may Issue. The appointment though not made q
form by the mi BE- tirtusI!y LB and I've w
exercise substantially, all The aathor! which Congress
in tended TO eolfer upon hin. have always thought
be th al tie should have controi over hi
AID be held responsble for the proper isoo
.cnt of his collection Ilsti1t and have therefore
general recommended for appointment or reno' yoeA
persons he has designated. frsctie slly therefore,
i. has bad power that Congress int AIDED ne snou9
exercise and he may have II stii. bus the CommissoA
in nv opil0n mast issue from tie President.
take tue liberty OF calling yoar sttestisn 10 this sub
ec as the nee. ssy for the appointment VI Assstaae
is atoCt 10 arise AID the question as t. W
source Of the authority from which this sppointmem
must come os ght 10 be promptly 9uied
Very respectfully, yanr obelient servant
JOSEPH J. LEWIS. Commissionss.
Hon HUou MCCULLoCH, Sec ofths Treasury.