Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-08-16

Attorney General Evsrs who had before
him for his examination a number Of cases
aris pg under the tenure of o.fice act, to-day
reud'red the following important opinions in
writing:
ATTORNEY GENERALS OFPICE,l
August 18th, 1865.
Hon. Hugh EcCulIoeh, Secretary If he TreasIry.
Sr:-ln your letter Of the 2SSh uItmo YOU
s'ate that law was passed Just at the close OF
tne late session OF Con gress, exte ndng The Gus
toms laws over the tCrritory of Alaska and
authorizing the appointment OF a colIec or OF
customs for that territory and that there was
no time for nomination 10 be made for the of
nee before the adjournment of Congress.
Upon these facts you ask whe her here is
SUCH q vacancy as can be filled by the Presi-
dent during the recess OF the Seuate aud If not
what provision can be lawfully m de for the
execution Of the customs laws in that te rritory
until collector can be appointed.
Thescase thus presented is one of original
vacancy, and is therefore not within or affect.
ed by the act Of March ?, 1867, Regulating the
tenure OF certain civil Offices"
The power Of the President to make q TEN
porary appointment in this case depends upon
the extent OF his constitutional authority to fIl
mp all vacancies that may happen during the
r. cess OF the Senate by granting commissions
which shall expire at the end of the next ses.
sion" The only consideration which the pre-.
else question here raised upon similar state
of facts appears TO have received in this office,
was given by MIR. Attorney General Mason in
an opinion touching the power Of the President
OF March 3, 1885, admitting Iowa and Florida
into the Union, q Opinions, 363) Mr.. Mason
held that where Offices are created by law
taking effect during the session of the Sen.
ATE, and no nominations mace, they
cannot be Filed by Executive appoint.
ment during the recess OF the Senate. II this
opinion announces the correct constitutional
doctrine, the President has no power TO make
temporary appointment of n Collector for
Alaska. 1t Is TO be observed, however in re-
gard to this opinion, that the view adopted is
not supported by such course of argument or
reasoning as would imply an acqua'ut.
ance, on the part OF the learned Attorney
General, with the full intent and scope Of
the constitutional Que-uon; and, further
that in another opinion, given a year after
ward, by Mr.. Mason, there is abundant
evidence that his views OF the Presidents s
power TO grant temporary commissions in the
recess OF the Sehate We're subsequently, quite
different from those indicated IN the opinion on
the case OF the Federal officers in Florida and
Iowa; for, in the latter opinion he expresses
his general concurrence in the construction OF
the constitutional provision under considers.
ton. adopted by his predecessors and enforced
by the continued practice OF the Executive
department of the Government from the time
of its establishment.
In an opiHion, which i have the honor 20
comm unicate herein with in res ponse to your
inquiry as TO he power of the President to fill
the existing vacancy in the Office of Collector at
New Orleans, have stated the Interpretation
OF the Constitution phrrs describing the va
cancies which may be temporarily filled by
the President, which has been adopted by my
learn' predecessor in this Office, and in which
i fully concur. Under that Interpretation am
unable 10 discriminate. in respect to the exercise
OF this constitutional power by the President
between cases OF continuing vacancy in the
rec -ss OF the Senate, which originated
during the session by the ere LION Of the office
and these which so orIeinare by n LAWFUL ter
minatIon OF an incVMbe1cy. Ger inIy the
ned OF the official service in the public inter-
lie inters I is peremptoriIy as great in one clse
as the other, and he executive duty of the
Pr sident for he discharge Of which this con.
s.itu,. .oral power is W tt in him is not quali-
fed by The C circumstance thar the Office is TO be
fill for the first lime.
The office to which you refer should be set
IN opeI ation at once, unless some legal i'm pedi.
ment to filling it exists. do not find ITS case
embraced within the operation of the tenure
OF civil ONCE act, and under the accepted con.
structlon OF the Constitutional authority of the
Pr sident. i have no doubt of his pow.r to
grant commission 10 Collector of Customs
for Alaska, which shall expire at the end Of
the ext session Of the Senate
With great resp CT, / have the honor to be
your Obeoient servant,
VN NJ Attorno., 4.