Vermont daily transcript. [volume] (St. Albans, Vt.) 1868-1870, 1868-08-18
Opinions Of iff0TncU-G cpcrOf
f.rVyfs.

Culloch of the 2Sth ult., has prepared
and communicated to the Secretary an
elaborate and lengthy opinion regard
ing the legal and constitutional powers
and prerogatvcs of the President in the
matter of appointing q Collector of Gus
toms at Alaska, which office was created
by an act passed at the last session of
Congress but for which no uomin on
was made, owing 90 the adjournment of
the Senate before an opportunity was af-
fordcd for making such nomination, and
also in regard to the appointment of a
Collector at New Orleans, which Office
was vacated by the resignation of w. p.
Kellogg, who toook his seat in the Sen
ate as Senator from Louisiana.
In regard to the Alaska Collectorship
Mr.. Evarts, after reviewing the language
of the Constitution and the laws as ap-
plicable thereto, says 1.-THE office to
which you refer should be set in opera
ton al once, unless some legal objection
to filling it exists. | don't find its case
within the operations of the tenure of
civil Office act and under the accepted
constitutional authorityo the President.
have no doubt of his power to grant
commission to collector of customs for
Alaska which shall expire at the end of
the next session of the Senate"
Mr.. Evarts furnished a separate and
very long and elaborate opinion in re-
gard to the New Orleans colIectorship
lie states the case as follows : con the
10th of July, 1865 Mr.. w. II. Kellogg,
Collector OF Customs at New Orleans,
rendered his resignation of that Office,
and subsequently on the same day was
sworn i'm and took his seat as a Senator
of the United States from louisiana
No action was then taken upon his re-
signation by the Executive Department.
but before the adjournment of Congress-
which occurred on the 9th of July, the
President sent to the Senate a nomina-
ton Of successor to Mr.. Kellogg, as
Collector.
No confirmation OF successor was
made by the Senate. Whether the nom
nations were rejected or laid over by
the Senate does not appear.
The office is now performed by dep
uty previously appointed by Mr.. Kel-
logg under the 22d section OF the act of
March 3D. 1889, first statistics GA.
Mr.. EVarts further says: 81 have
not q doubt that the office of Collector
at New Orleans became vacant by the
resignation of Mr.. Kellogg, and by his
complete institution as a member of the
Senate, and it is not important to in
quire in the present case which Of them
| WAS ullc cliicic1ll nltdllS Vi IL WltlltlTtN
al from the Office. Either, in my judy
ment, was adequate to the effect. So,
too, if there had been no express resig~
nation of his office Mr.. Kellogg's ,ac-
ceptance ofthe place i'll the Senate and
his induction into it, III view of the Pro-
vision of the Constitution that no per-
son holdingany office under the United
States shall act as member either House
during his continuance in office, must
be considered as having the legal cha
racter of a resig nation of the office of
Collector.
The case is one, therefore, of an office
which became vacant during the late
session of the Senate by reason of resig-
nation. May the Pre- ident now fill the
vacancy by granting commission
which shall expire at the end of the
next session of The Senate? The Ques-
ton thus presented, so far as it arises
under the special and limited cOnstitu-
tiOnal authority of the President to act
upon vacancies in office without the adj
vice and consent of the Senate, is IA
miliar one, and though not unfortunate
ly the subject of consideration in one
form and another by my learned prede-
cessOrs in the office of Atty-General.-
The result of their deliberations has
been uniform, and has furnished the
guide upon which the practice of the
Executive has been equally uniform
The constitution says: "The President
shall have power to fill up all vacancies
that may happen during the recess Of
the Senate by granting commissions
that should expire at the end of thencxt
session.
The only doubt ever suggested upon
the constitutionality of this clause OF
the constitution has relation to the true
Interpretation of the phrase that may
happen during the recess Of the Senate
The subject was fully discussed by Mr.
West in the year 1923, and no view OF
argument that could shed light upon {
! correct decision was omitted for his con
sideration of it. He arrived at the con
clusion that the vacanciesin Office which
might be filled by the President under
this clause of the constitution was MOI
confined by it to vacancies originating
or beginning to exist during the recess
of the Senate, but embraced all vacan
cies that from any cause should harper
to exist at the time when the Senate
cannot be consulted as to filling them
| am therefore of the opinion that upoI
the well considered and long continued
Interpretation of this clause of the con
stitutiOn, the President has power to fill
= the vacancy in the office of collector a
New Orleans by granting commission
that shall expire at the end of the next
session of the Senate, and tina
the tenure of civil Office ac
, does not in terms nor in intent, no
: in legislative constitution of this clause
of the constitution effect this power o
; the President in the case submitted fol
my opinion.
ENGLISH ESTIMATE OF GRANT-Tht