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


pose of the Constitution is CO npletely acc ,m I.
plished," a Opinions, 633l
The Considerations which support and en-
force this, as the necessary and proper con-
in Mr.. Wirt's opinion, and in the opinions OF
his succ"- -sors. Attorneys General fancy, Ls-
gare and Mason, and in the more recent re-
view Of the whole subject pre- cnted in Mr..
Stanoery's opinion of August 30, 1865, ad.
dressed to the Postmaster General, that deem
it unnecess lry to do more than 10 refer You to
those learned Conslituf iopal dtsqui.ions
Upon such an established constitutional doc.
time il is hardly useful 10 express an opinion,
as upon an original question. have, however,
upon motives OF renewed interest in tue whole
subject Of Executive authority in appointments
TO office. excited by rc cent legislation OF Con.
gress, attempted to weigh anew the opposing
interpreta lions Of this clanse Of the Constitu
ten, and the arguments affecting a just conclu-
sion upon the question, and cannst but give
my concurrence to the views of my learned
predecessors to whom have referred.
proceed now to examine the recent legisla-
ton Of Congress, known as the Tenure Of
Civil.Omce act, as bearing upon this subject
The only position Of that act which Is ap-
piled to the regulation Of executive authority
IN the nlling OF admitted vacancies in Office is
the third section, which reads as follows:
That the President shall have power to fill
all vacancies which may happen during the
recess OF the Senate by reason of death or res
lgnauon by granting commissions, which
snail expire at the end of their next
SESSION thereafter. And if no appointment,
tSs 1y and, and with ne advice and consent OF
vacant or temporarily filled as aforesaid during
such next session of the Senate, such office shall
remain in allegiance, without any salary, fees,
or emoluments attached thereto, until the same
shall be filled by the appointment thereto by
and with the advice and consent of the Senate;
and during such time all the powers and duties
belonging to such office shall be exercised by
sucn other officer as may by law exercise such
powers and duties in case OF a vacancy in such
Office"
The first clause Of this section of the act, re-
peats the language of the clause of the Consti-
tuition which here cited aud does not attempt
any legislative Interpretation OF the phrase
(which may happen curing the recess OF the
senate: which 1t adopts from the Constitu-
tlon. Upon the text of the act, therefore, II is
impossible to argue that the repetition OF the
words of the Constitution puts or purports to
pht any Interpretation upon them
1hey are SIMPLY adapted by the Act in their
true constitutional sense, Whatever that sense
may be. But when we consider the general
knowledge which all persons having respons.
IDLE connection with The conduct OF affsIirs, as
well as all legal and political Students had of
the uniform Interpretation of these words of
the Constitution which had been accepted and
acted upon by the Executive branch Of the Gov
eminent.
have been accepted and acted upon BY Execu-
tive branch of the Government, it il almost a
conclusive presumption tina, Congress ac-
cepted the words OF the Constitution in iLs
adoption of them INTO legislation affecting the
exercise of Executive authe rlty In the same
sense in which they had been accented aud
acted upon the Executive branch of the Gov
eminent This being so il will be observed
that in case OF vacancy now under
consideration arising by resignation, there
rs Is, nothing ,Silg 1,, in the operative enactment
by any implication affects or purports to AT.
feet the Pres dents authority in filing the Of
nee, unless and until il snall have fallen into
the predieamento OF .:abeyance" described in the
section. This condition of s.abeyance" is lim-
tied to arise upoh the expiration OF the snext
session OF he So, ats,'' without the office hav.
ing been hlled "by and with the advice and
consent OF the Senate.''
This preGicament of ssabeyance." in it, ap-
p'ication TO the office made vacant by MIR. KEEL
loggr resignation, can only arise by the expi-
rttIon of the next session OF the Senate, with
out that body's having coucurred in a full
appointment 10 II. IT taat event should occur,
tnen the operative enactment OF the ID section
Collector at New Orleans would be for the
Il ne Obliterated from the ublic service But
until then i cannot perceive that the power Of
the President TO act upon the vacancy in the
Office. as 1t now stands, Is affected by the pro.
provisions OF this act.
am, therefore, of opinion that upon the well
considered and long continued Interpretation
OF this clapse of the Con stitution the President
has power to ill the vacancy in the office of
Collector at New Orleans by granting q COM
mission that shall expire at the end of the next
session Of the Senate, and that the s'Tenure of
Civil ONCE" act does not in terms, nor in in.
tent nor in legislative construction Of this
clause OF the Constitution, affect this power of
the President in the case submitted for my
opinion.
The disposition have made OF the principal
inquiry addressed to me, doubtless supersedes
the need Of definite consideration of the
alternative advice which / am asked for, as
to the possible modes OF keeping open the
poft of New Orleans and collecting the
customs revenue there in case the President
had not the power OF appointed a collector.
l have, however, looked at those questions
sufficiently
ters Of much difficulty, and as the closing
OF the mouth OF the Mississippi TO foreign com.
mecce and the transfer of that commerce TO the
Atlantics Ports, would be an occurrence
Of astounding influence upon vast interests,
ON happy to find no embarrassment In the
regular Official administration of the collection
Of the revenue at New Orleans from the defect
Cf executive power in the premises.
With great respect, l have the honor to be
your obedient servant,
WIN. NJ. EvAETs, Attorney General.