Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-13
WARRINGTON.

WASHINGTON, August I2.-The fol-
lowing is Attorney General Evsrt's
opinion on the case OF the Commissioner
Of Internal Revenue:
I Hon. Hugh MeCulloch, Secretary OF Treasury
Sir: have given TO the sutjsct sub
/ miJted to my Consideration by your let
/ ter Of the 7th inst, in relation to the
1 present condition of the sffairs of the
Commissioner Of Interasl Revenue, the
most careful attention. The case pre-
sents itself as follows: Mr.. Z. A. r d.
/ lius, holding the civil office Of Commis-
/ sioner of Internal Revenue, to which be
I had been appointed by the President, by
and with the advice aDd consent of the
/ Senate, addressed to the President, under
dste oi June, 1865, the following letter /:
Sir: In pursuance to a purpose
7 known TO my friends for several mouths,
I [ hereby tender you the resignation OF
any office, TO take effect upon the qdalifi-
cation OF my successor, nominated by
yourself and confirmed by the Senate.
am, Sir, very respectfully.
/" Z. A. ROLLINS,
"Cona. Internal Revenue"
Upon the fifth day Of August the Pres
ident put upon the bsck Of this letter
the following Endorsement; The resig-
nation of E A. Rollins ss Commissioner
Of Internal Revenue is this day accept
ed"
Upon these facts you desire my an
swer to two Ques ions, viz. : First-Is the
Office OF Commissioned Of Internal Reve-
nue. vacant? Sseond-If vacant, since
wbsD, and can s successor be appointed
during recess of the Seuste?
The ohics is, as you suggest, q very i'm
80 1rsl-
faithful administration Is 3 mstter OF the
greatest interest TO the public revenue
aad the public credit, aud 1t is justly a
subject OF soiicitude with the President
that his full dnty, under the Constitution
Snd the laws, in respect 10 this office and
its admin ,StFatiOn slliu be fulfilled.
The questions which You ad2ress me
come 10 be of prse0icsl aud substantial
interest in the Executive administrs-
tion OF the Government only by force Of
the recent legislation OF Congress, known
as the "Tenure- of-OfIiee " bili-that has
impressed upon g class of officers, IL
ending the one under consideration, 8
tenure of-Offiee at the will of the Office
holder, which cannot be terminated by
the President, except on appointment
and Confirmation by the Senate, and in
d0ctjon 10 of1ios Of his successor.
The precise effect Of this legislation Is
the first point for consideration. The
purpose of The Tenure OF Office bill wss
t. charge tas doe.ring ana practice of
the Government, By which removal
from Office, 1T discretion, had been
established as proper snd Deoes- I
ssfy attendant of the Executive duty
and responsibility uCder the considers I
lion 10 maintain the effiCisney and fideii
ty of tie puuiic service Ia fulfilling the
manifold and incessant obligations of
The administration ana IN the execution
Of tie laws. This purpose, which might
have been united to 3 requirement OF tue !
coEcuTreuca Of the Senate with the Elk
ecu;lvs IL effecting sremOvsl from efiice,
and yet left the capacity OF removal ss u 4
and Indispensable act, open to (
tie exigeGc,es OF the paJlic service, has I
been carried by the law 10 the extent OF S
prec;udIpg 3 termination OF the officers .
hold upon Office by tbs united will OF the 1
President aud Senate, save and except I
by appointment, confirmation and quail
dcatIoa of a successor. THIS tenure mold /
upon ofiice is put distinctly 10y
tnis act as matter Of the officers
right and title. The consequence (
Of this j., there is 10 other possible mode
D: vacauug ths of1ice thus projected
against the viii OF the officer during the
session of the Senate, however hsgitiou
and Injurious his personal or official con-
duct may be, except through the cODdi,
iional process OF impeachment. During
recess OF the Senate, the remedial pro-
seeding of temporary suspension by the
Executive, followed by sceusation to The
Senate and Judgment thereon, is pre-
sided, and may result ia the removal of
lie officer without the necessity Of sim
Iltane0u5 appointment and Confirmation
IF his successor.
Mr.. Rollins, At the date OF bis letter to
he President, was entitled to hold his
)fiice until q successor had been ap-4
pointed by aud with the advice and COR
cent OF the Stnale. aud should have been
qualified; and the only interruption Of
ais, his personal right, possible under
re law, WAS the general process
II impeachment and Judgment there
IN, or the special process of suspen- |
ion, accusation ana judgment thereon.
4 rested then, under the operation Of
his law, solely with Mr.. Rollins to de
srmine whsther he would voluntarily
ut an end to his hold upon the offige I
md the question whether the Office is
10Y vacant, In my opinion, turns en-
rely upon just construction of the eff I
l.
framed with intent TO convey
he impression that the writer does !
lace himself Ia respect 10 his official
no public service, aud to the power sud
uty of thePfesldent In connection there
With, upon different basis from that
rhich the law leaves him. But upon
uiy weighing all parts Of this cfiieiai
cannot hesitate to pro-
Ounceit entirely without any legal ope-
alton whatever upon Mr.. Rollins ten.
/ am obliged to regard
be present tender of his resignation an :
etusi REIMBURSEMENT only upon and 1
ftar the event named and prescribed by Q
he writer, namely: TIE confirmation
Y the Senate of his successor. IL will
e perceived that the event which Is To
pen this tender Of resignation into re- I
nquishment Is precisely the action OF
be Executive and Senate and OF the sue
essor OF Mr.. R0lliss, which, by the
Tenure-o.-J1fice act deprives him of
is offics, aud consequently OF any power g
r will in res ard TO its reiiuquishment.
cannot, therefore, give to this letter 4
ny official or legal force whstever, In
IAcing at the discretion of the President
1y power over the Office Ia question,
hich he did not possess without the
tier. Z
Concerning the effect of The Presidents a
0srsement, I have to say that ia nv
onion | have sufficiently shown that
le letter possessed no legal or official ,.
,erstion upon the office or Presidents
over to which the indorse-
ent could attach Itself Aud | must
,nsider that the Office OF Commissioner
Internal Revenue and Mr. Rollins =
Did upon it remains the same as il the In
tier bad never been written, or the
Endorsement tut thereon, and
70 office Is vacant. Thls conclusion n,
nGers unnecessary a reply TO your
cond question. have disposed of this az
after wholly With the premises of the oh
,issiDg legislation governing the ques- 81 81
1n, aud without any discussion OF the oy
rgeT topics touching the conformity or TT
pugnancs Of thla legislation with the a.