The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1868-02-25
quiesce in its correctness. In a matter
Of annh nrraua canaan nanna WA

tional advisers. Ihave therefore sought
to bring the question at as early day
as possible before the Supreme Court OF
the United States for final discussion.
In respect to so much of the resolution
as relates to the designation of an
officer to ast as Secretary OF War ad IN
term, have only to say have exercised
this power under the provisions of the
first section of the act of February 18th,
1895, which, SO far as they are applica-
BILE to q vacancy caused by the removal,
understand still to be in force. The
legislation upon the subject of ad in
term appointments in the Executive
Department stands as to the War Otbce
as follows: The section of the act OF
August z, 1899, made provision for
vacancy in the very case OF removal
of the head of the War Department,
and upon such vacancy gives charge
aud custody of the records, books aud
papers to the Chief Clerk.
By the act of the Sth of May, l192,
section 8, it is provided that in case OF
a vacancy occasioned by the death, ab-
sence from the seat of government, or OF
the sickness of the head of the War De-
partment, the President may authorize a
person to perform the duties OF the office
until a successor is appointed or the
disability removed. The act, 1t Will be
observed, does not provide for the case
of vacancy caused by the removal.
Then by the first section of the act of
February 18th, 1905, it is provided that
in case of vacancy the President may
appoint a person to perform the duties
while the vacancy exists. These acts
ere not followed by that of the I'd OF
February, 1863, by the first section OF
which provision is again made for
a vacancy caused by death, resig-
nation or absence from the seat OF
Government, or sickness of the head OF
any Executive Department, and upon
the occurrence of such vacancy, pow
er is given to the President to author
ize the head ofany other Executive De.
nartment or other officer in either OF
said Departments whose appointment
is vested in the President at his dlScre-
ton, to perform the duties OF said re-
spective officer until a successor be APP
pointed or such absence or inability by
sickness shall cease; provided, that no
one NdCauCy suaii 10 supPA'So IL shS
manner aforesaid for larger
term than six months, and this
law, with some notifications,
re-enacts the act of 1892, and provides,
as did that act, for the sort of vacancies
to be filed. But, like the act of 1892,
il makes no provision for a vacancy oc-
casioned by removal; it has reference
altogether 40 vacancies arising from
other causes, according to my construc-
ton. The act of 1868, while it implied
" repeats the act of 1892 regulating va
caneies therein described, has no bear
ing whatever upon SO much of the
act of 1895 as applies to vacancy caus-
ed by removal. The act of 1875, there
fore, furnishes rule for vacancy
occasioned by removal. One of the va
cancies is expressly referred to in the
act of 9TH August, 1889, creating De-
parment of War. There is none eX-
pressed. If there is any it is by impli-
cation, aud can only be admitted SO far
as there is clear inconsistency between
the two acts. Tue act of 1898 is incon-
sistent with that of 1868 AS to vacancy
occasioned by death, resignation, alb
sence or sickness, but not at all incOn.
sistent as to a vacancy by removal.
1t is assuredly proper that
the President should have the same
power to ill temporarily vacancy &C.
casiened by the removal as he has to
supply place made vacant by death or
expiration of the term. If for instance
the incumbent of an office should be
found wholly unfit to execute the
functions and the public service
should require his immediate eX.
pulsion q remedy should exist and
be at once applied and tim be allowed
the President to select and appoint u
successor, as is permitted him in case of a
vacancy, caused by death or termination
of an official term. The necessity there
fore for an AL interim appointment is
just as great and, indeed, mag be great
err in cases Of removal than in
others before it be held; therefore
the power given by act of 1895 in cases
Of removal is abIogated by succeeding
legislation. An express repeal ought
to appear so that so wholesome apower
should certainly not be taken away by
loose implication; it may be, however,
that in this, as in other cases of implied
repeal, doubts may arise. 1t is con-
feSsedly one OF the subtle and de-
batable questions which arise in the
construction of statutes IT, upon such
a question | have fallen into IN crron-
eous construction, submit whether it
should he characterized rs violation
of official duty and of law. | have
deemed it proper in vindication of the
course which heve considered it my
duty to take, to place before the Senate
reasons upon which | have based my
action; hough l have been
advised by every member of
my Cabinet that the entire tenure of
Office act is unconstitutional and there
fore void, and although / have express
ly concurred in that opinion in the veto
message which had the honor to sub
NIT TO Congress when l returned the
bill for consideration, have RETAINED
from making Il removal Of any officer
contrary to the provisions of the law,
aud have only exercised that power in
the case of Mr.. Stanton, which, in my
Judgment, did not come within its
provisions. | have endeavored to
PIOCCCu Win tuC greatest CltS DCS-
ton, and have acted in an extreme and
eXceptionable case, carefully follow
ing II course which | have marked
out for myself as general rule, faith
fully to execute all laws, though passed
over my objections, oh the score of con-
stitutionality. In the present instance
| have appealed, or sought to appeal to
that final arbter fixed by the Consti-
tuition for the determining of all
such questions. To this course
have been iinpelled by solemn
obligations which rest upon me to sus-
tain Inviolate the powers of a high
office committed to my hands. What
ever may be the consequences merely
personal to myself, l could not allow
them to prevail against public duty
so clear to my own mind and so import
ant. If what was possible had been
certain; if l had been fully advised
when l removed Stanton that ia thus
defending the trust committed to me
my ewn removal was sure to follow, /
could not have hesitated. Actuated by
public considerations of the highest
character l earnestly protest agaisst
the resolution of the Senate which
charges me in what have done with
O violation of the Constitution and
laws Of tho TTnitad Sta.as