Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-08-12
The Revenue Csnnissisnsrship
IMPORTANT OPINION OF ATTORNEY
GENERAL EvARTS.

oy tne secretary Oh tne treasury Tor MS cons
TREASURY DEPARTMENT., August :. 1sss-
L ear Sir: Enclosed / hand you a COW OF a let.
ter addressed by MI Z A. Rollins, Ccmmis sion.
United States, ON the sth day of June. 1864. and
also copy Of the Presidents endorsement
thereon, Dated August 5th, 1858
Under these circumstances the following
questions are presented for your consideration:
Fust, Is the Office of Commissioner of Inter
nal Revenue vacant9
Second, II the Office is vacant, when did the
vacancy occur, and can successor TO Mr.. Rol.
Inns be appointed during the recess Of the Sen.
atei
The office of Commissioner of Internal Rev
one it is desirabl. thai there should be no douot
as TO the "legal status" OF the person in charge
Of il.
/ desire that you will favor me with yeur
you at your earliest convenience.
(Signeo,) II. McCULLoCH,
Secretary of the Ire isury
Hon. WS. NJ. EvARTs, Attorney General
ATTORNEY GKSKRAL's OFFICB, August 10
le6s-Lion. Hugh AcCsIloeh, Secretary IF the
TreosnJy-Sir: 1 have given tue to subject SUBJ
mitted to my consideration by your letter on
the 7th instant in relation to the present po-
sition of the office OF Commissioner of Internal
Revenue, the most careful attention.
The case presents itself as follows: Mr. F.
A. Rollins, holding the civil once of COMMITS.
sioner OF the Internal Revenue, to which he
had been appointed by the President Of the
United States, by and with the advice and con-
sent OF the Senate, addressed to the Pres iteut
under date OF June s, 1e6a, the following letter
TREASURY DEPARTMENT, OFFICE OF INTER-
NAL REVENUE, Washington, June 8, ss-SlR
friends for several months I hereby tender
you the resignation of my Office, to take effect
upon the qualification Of my successor nom.
mat by yourself and confirmed by the Ssnate
Il RESPECTFULLY.
E. A. ROLLINS,
Commissioner of Internal Revenue.
Upon the 5th of August instant, the P1esi.
dent placed upon this letter the following en-
oorsement:
"The resignation Of E. A. Rollins, as Cou,nis.
sloner OF Internal Revenue, dated June {, 1s6s,
Upon these facts you desire my answer to
"First. Is the office OF Commissioners of In
ternal Revenue vacant! -
Second. If the office is vacant, when did
the vacancy OCCUR; and can a successor to Mr
Rollins be appointed during the recess OF the
The ofiice of Commissioner of Internal Reye.
nne is, as You suggest, a very important
and responsible one. Its intelligent, efficient
and faithful administration is matter of the
greatest interest to the public revenues and the
public credit, and 1t is justly subject of soici.
tude with the President that his full duty,
under the Constitution and the laws. in respect
TO this office and its administration shall be ful.
filled.
The questions which you address to me come
70 be OF practical and substantial interest IN the
Executive administration of the Government
only by force OF the recent legislation of Con-
gress, known as the ssTenure Of civil office
bill, that has impressed upon class of off,
GERS which includes that now under considera.
ton, tenure at the will Of the office holders,
which cannot be terminated except by the con
currehce of the President and the Senate in the
induction into the office. So long as ths
President by force Of the Constitution
and the laws had the power TO terminate the
off1ceholder's possession OF his office by a re.
moval al the President 9 discretion and a eainst
the will ofth oficer, the tenure OF the latter's
desired adherance TO or r"signatio of his office
would have no special significance, for they
could impose no restraint upon the time or
manner Of the Presidents exertion of his pro.
per authority In the premises. Tne preci G
effect therefore, Of the legislation referred to is
the first point for consideration. The purpose
ofthe tenure Of civil office act was to chan se the
doctrine and practice Of the Government by
which removal from once, at the mere dis.
cretion Of the President had been established
as proper, and, as had been thought, neces.
sary attendant OF the executive duty and re.
sponslbaIity under the Constitution, to main
tain the efficiency and fidelity Of the pn olic
service in fulfilling the manifold and incsss sant
Obligations Of administration, and in execution
Of the laws.
Tins purpose. which might have been Inn
tied to requirement OF the concurrence OF the
Senate with the Executive in effscting a re.
moyal from ONCE, and yet left the Capacity Of
removal, as a separate and independent act,
open 70 the exigencies of the puolc service
has been carried by the law to the extent OF
precludin Q ter minaiion Of the officers hold
upon his Office, by the united will OF the Ex-
ecutiye and OF the Senate, except by the sole
and specific mode of the appointment, con.
drmarion and qualification OF a success sor
This firm hold upon an Office into which he
shall once have been indicted is put distinctly
by the act as matter of the officers right and
title. The consequence Of this Is that there is
no other possible mode OF vacatlng the office
thus protected against the will OF the officer
during the session of the Senate, however fla
gitiOus and injurious his personal or Official
conduct may be except through the constitu-
tional process of impt ptachment. During the re-
temporary suspension for cause by the Efecu.
tive, followed by accusation to the Senate, and
Its Judgment thereon is provided, and may re-
suit in the removal Of the officer without the
necessity OF the Simultaneous appointment, con.
firmation and qualification of his successor
The language of the section securing hIsright
and title 10 the ONCE holder is too clear TO ad-
NIT OF doubt.
That every person holding any civil Office to
which he has been appointed by and with the
advice and consent Of the Senate, aud every
person who shall hereafter be appointed to
any such ONCE, and shall become duly duali-
fled to act therein, -. and shall be entitled TO
hold such ofiice until q successor shall have
fed, except as herein otherwise proyidsd!''
MI. Rollins then, at the date Of his letter to
the President, was entitled TO hold the Once of
cessor should have been appointed by and with
the advice and consent of the Senate, and
should have qualified, and the only interrup.
tion OF this his personal right possible under
this law was the general process Of Impeach-
ment and Judgment thereon, or the special
proceedings Of suspension, accusation, and
judgment thereon, provided by the act itself,
and which, obviously partake OF the nature of
impeachment. II rested, then, under the opera.
tion Of this law. solely with Mr.. Rollins TO
determine whether he would voluntarily put
an end TO his hold upon the Office by a relin.
Quishment or resignation OF II, and the ues.
ton whether the ONCE is now vacant must,
in my opinion, turn entirely upon q
Just construction Of the effect OF the
letter Of MIR. Rollins this regard
This letter is, manifestly, framed with the in.
tent Of carrying en- impression that the writer
does place himself in respect TO his office, and
to the public service, and 10 the power aud
duty of the President IN connection Herewith,
upon q different footing from that in which
the law, against or without reference 10 his
wishes, leaves him. But upon duly weighing
all parts Of this Official communication 10 the
President, which respect 10 the COMMISSIONS
would require me, If possible TO give some ofi-
clsl efficacy to, cannot hesitate to pronounce
II entirely without any legal operation what.
ever upon Mr.. Rollins tenure of his Office. /
am obliged 10 regard il as present tend-r of
resignation which Is 70 become q resignation
In actual relinq uishment Of the ONCE only
upon and after the event which is named and
described by the writer as n condition pre-
cedent 10 Its having thar effect. This
event, in the Language of Mr.. Rollins
"A ~ -