The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-02-26

In respect to so much of the resolution as
relates to the designation of an officer to ACT
as Secretary of War od interim, L have only 70
saw that | have exercised this power unuef
the provisions OF the first section oil the act
of February Is, 1895, which, so far as they are
applicable to yacaI eies caused by femoVais, L
understand to be still in force.
The legislation upon the SUBJECT OF "a inter-
inn appeintments In the Executive Depart
mept stands as to the War Office as follows:
The section of the Act OF theIth of August
1889. made a provision Tor vacancy in the
very case of a removal of the, head of the War
DEPARTMENT, and upon such q vacancy gives
| the charge and custody of the records, books
| and papers to the Chief Clerk. Next by the
| Act of the 9Th OF May, 1892, section eighth, it
is provided that i'll case OF a vacancy OCCASION
ed by death, absence from the seat of govern
ment, or OF sickness of the head of the War
Department, the President may authorize q
person to perform the duties OF the office until
a successor IS appointed or the disability re-
moved. The. act, il will be observed,
does not provide for the case Of vacancy
caused bv removal. Then, by the first
section of the act of February 49, 1875, it is pro-
yided that, in case of any vacancy the Presi-
dent may appoint person to perform the du-
ties while the vacancy exists. These acts
are followed by that of the Goth of February,
1868, by the first section of which provision is
again made for vacancy caused by death,
Resignation, absence from the Seat of Govern
meut, or sickness of the head of any Executive
Department, or other officer in either of said
Departments, whose appointment is vested in
the President at bis discretion, to pei form the
duties of the said respective officers until such
absence or inability by sickness shall close,
provided that no one vacancy shall be sup
piled in the manner aforesaid for longer
term than six months. This law, with some
notifications, re-enacts the act of 1892, ana
provides, as did that act, for the sort of vacan-
cies to be filed: but like the act of 1892, it
makes no provision for a vacancy occasoned
by removals. 1t has reference altogether to
vacancies arising from other causes. Accord
ing to my construction of the act 'ot 1868,
while it impliediy repeats the act OF 1892 regu-
latinS he vacancies therein described, it has
no bearing Whatever upon SO much OF the act
OF II5o as appies TO vacancy caused by re-
moval. .l .t.t....a- "a.
The act-of 1873, therefore, furnishes the rule
TOT vacancy occasioned by removai-one OF
the vacancies expressly referred to In the act
OF the 7th OF August, 1883, creating the De-
partment OF war. Certainly there ia no eX-
press repeal by the act of 1868 of the act of
1895. The repeal, if there is any, is by imph-
cation, and can only be admitted SO far as there
is clear Inconsistency between the two acts.
Inc act OF lI95 IS inconsistent with that OF
1903 as 10 a vacancy occasloned by DEATH res
Ignatlon, absence OF sickness, but not at all
lneonslstent as 70 vacancy caused by remov-
a.. ~ Is assuredly proper that u the fresloent
snouiu nave the same power 10 M temporarily
Py p.aoo saot c y ueaen VI .ne eApli-
IIioii of q 'ee II, ~, instances, Tue lncuil.,
o n ~ S'at;i, oo nm
W eAeioise Tug iuce'ons, anu the puolc service
snouiu fe9uI9 ns iniuiealate expulsion;
reueuy shoulu exist ana De at once applied
au9 .lne pe aiioweu the Freslaent 10 seiect
anu appo!he successor, as Is rmitted MN
IN case OF q vacancy caused oy the death or
the termination OF 40 ofhclal term. The ne
cessity, therefore, 1or an dd interim appoint
ment IS lust as great and, indeed, may be
greater IN cases OF removals than in any others.
Before 1t be held, therefore, that the power
given by the act OF 1870 IN cases OF removal
Is abrogated by succeeding legislation,
an express repeal ought to appear
So wholesome power should certainly not
be taken away by loose implication. 1t may
be, however, that in this, as in other cases of
implied repeal, doubts may arise. Ii is con-
fessedly one OF the subtitle and debateable
questions which arise in the construction of
statutes. If, upon such question, l have fall
len into an erroneous constructions, submit
whether 1t should be characterized as a viola
ton OF official duty and law. --4a~
-. have deemed it proper, 4Fintdfifcation of
the course which have considered it nv duty
to take,-to place before the Senate the reasons
upon which have based my action Although
L have been advised by every member of nv
Cabinet that the Tenure of Office act is mn
constitutional and therefore void, and al
though [ have expressly coneltrred in that
opinion in the veto message which had the
honor to submit to Congress when returned