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

ATTonNgY-GESERALs Opr1CE April IS issA
Hon. HUGH AoCULOoH. Seerssa'y 81 ne TIss's'y.' !
SIR: | have duly considered the important.
and interesting question suggested BY The Comma
soner OF Internal Revenue touching the recent legis
ton of Congress with reference to the Office VI Assse
IN, Assessor of Internal Revenue and which you have
submitted TO me FOR my opinion The questions may -
thus stated:
I T. Whether the provisions OF the act OF MarchA
1905 vesting the appointment OF Asslstent AssessCss
the Assessors VI the respective assessment diStfct
10 COM ttutonil
IL. lit be Institutional in whom Is the power q
tarpointing Assist,nt-Assessors BY law vested -
i i'll II tne President is by law vested with this
power should he exercise II against the express Ff
hvson OF the act Of Congress before any )iacia uee
Elimination been had Of the two preceding qursuonss
l. The frat section Of the act Of March g. 1865 pro
ydcs tia, within each assessment district the sssss-
or. whenever there shalt be vacancy, shah sppoinS
with tho approval Of the said Commissioner one 20
5uore Assistant Assessors who shall be resident a
ssuch assessment district The question suggested ~
sthj, enactment is whether IL constutionsiy com
ueten for Congress confer the sssessos the powss
lof Amounting their assistants The Constitution pre-
bvdes (sec Ii article ~ that the President sha nor'
Ipss and by and with the advice and conseat OF the
,suste shs appoint einblsssdors Ahd all other
of tie United states whose apn are ny
Vim otherwise provided for and which sns he estabispee
lby law. Bnt the Congress may by law vest the ap'
ontment OF such inferior ocors Us they tink propef
The Pre- dent alone in the Courts Of lnw or III tue
. Icads OF Departuents" TITS is the constitutions
aoroysion which the set Of las5 may Do supposed 70
alrngs Maniiesty the statate Is in 'lvs.ioh OF ths
Unconstitutional provision II tho assistant assessors
within the meaning Of the Constitution. Ohicers %
1.-The United States Congress is not competent TO con
the power Of appointing officers Of the oh!ee
ates any paoNo artaor.tl ou. tls ifeS'N'"" W.
Courts or the Heads OF De partrsnts.
That LEGAL place posltionof Assss
Assessor 49, therefore, the point for
viii NOS venture I'D ira ss q t1eY are s.eS n
iths Constitution Blackstone has attsn pea 70 es
.uch etnition VI the legal meaning oil Inc SECOND
shese terms q CON- sc but ne ns com .oo,h"r Hs a.
lines an office 10 be an "emploJment pu' me
Justice Marshall has well said: Although an once
an employment is does -o''oN'" '""' s'''' '"E''
"a man NAV certainly be employed under contraeA
Isxmess or implied DO act Or periorn aservioe
Without becoming al officer (UEited esates agt
Wsnrice . Brock lo3l With his usual power OF legal
DENOMINATION tho great ChisJ has IN the sans
case ushed those oyments that may properly
be termed offices" from that Other e.aas TO winch ~
III refers -, a..
"Hs duty" he says, "be containing one which Y
defined BY rules prescribed by tho Government and nos
by contract which individual Is appointed by Gov
srnuert 10 perform, who on the duties appers
tanning b Sis station without any contract defining
them II those duties continue tSugh tue persons W
tchsnged seems very difficult 10 distinguish suen
lcharee or employ nom office the person whs
perforps the duties from officer" think that the
act of Congress establishing the place Of Assistant A.
1sessor and prescribing is functions aud dntis
t. In the stricscst legal oiiee
The Internal Revenue Code Of June 80 1904 % St~s
l2sD specifically 50 terms It, in prescribing TIE oAte
which every Assistant Assessor 10 required 70 'ass
ybef0re entering upon 10 duties. And waat Is -
mature Of thoss dutiest One point OF inquir! "oud
whsther they are sae duties Of another whicn ne per
forms in right Of and by population from tnAt otoet
lIhey not Of that character The statute oa'enu!
presoribes the sphere Of his authority ous Villain sls
sphere he performs the daios aud exercises the powe
dsvoviaS upoa hip N ssserdna0a and under r'ssse'