Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-08-16
ATTORNEY GENERALS OFFICE
AnQnSt Eth 1859 4

Hsr. Hugh kcCallOch, Secretary of the TreasUry.
SIs: have carefully considered the facts in
relation to the Collectorship Of New Orlean- ,
and the questions which you submit for my
determination arising thereon.
The case is this: On the 18th Of ] uly, 1868,
Mr.. w. p. Kellogg, Collector OF Customs Ut
New Orleans, rendered his resignation of that
office, and subsequently,, on the same day,
was sworn in and took his seat as Senator
OF me United states rom Louisiana. No
by the Executive Department But before the
adjournment Of Congress, which occurred on
the 2th Of July, the President sent to the Sen.
ate nomina auons o6 a successor to Mr.. KELLOGG
as collector. No confirmation of a successor
was had by the Senate. Whether the nomina-
tlon'was rejected or laid over by the Senate
does not appear. The office is now exercised
py deputy previously appointed by Dir. Kel.
logg under the enty.second section of the
act OF March 2, 1893, q stats, 6i.) On this
state OF facts you submit for my opinion the
!. Whether the deputy may lawfully dis
charge the duties Of the ONCE Of Collector un-
til successor to Mr.. Kellogg is lawfully an.
and his sureties are responsible for the conduct
os the former.
,. Whether The President, under the circum.
stances hrs power to appoint collector tenn.
8. whether the President, or the Secretary of
the Treasury, under the 9Th section OF the ect
of May s. 1892, n stat 2SO) may lawfuliy au.
noTzs any person 70 exercise tI the functions Of
the faithful discharge of the duties thereof un-
til the office shall be regularly filled.
will consider the second section first The
answer ! will give to 1t may render unneces-
sary any opinion on the first and third ques.
tons. A preliminary inquiry is, whether the
ONCE ol Collector OF the Port Of New Orleans
Is now vacant. and II it is, by what reason 1t
became vacant / have no doubt that the ofice
Of Collector at New Orleans became vacant by
the resignation OF Mr.. kellogg, and by his
complete institution as member Of the Sem
Hnf Nrrta mt to Svr. A., -
present case, which Of these was the efficient
means Of his withdrawal from the office.
Either, in my judgment, was adequate to
M the actual a"c circumstanoes @ @ Of the "ase eaSe.
was accomplished during the session of the
Senate. SO, too, if there had been no express
resignation Of his once Mr.. kellogg's accept.
ance OF the place in the Senate and his induc-
ton into it. in view Of the provision Of the Con-
stitution that sno person holding auy office
under the United States, shall be member OF
either House during his continuance in office"
must be considered as having the legal charac-
ter Of q resignation of the Office Of Collector.
The case is one therefore of an Office which
became vacant during the late session Of the
President now NIL the vacancy by granting a
commission which sh- II expire at the end Of
the next session OF the Senate!
The question thus presented, so tar as it
tional authority Of the President, to act upon
vacancies in office without the ad vice and con.
sent OF the Senate, is familiar one, and
though not unfrequently the subject of con.
sideration, in one form and another, by my
learned predecessors in the ONCE of Attorney
General, the result of their deliberations has
been uniform. and has furnished the guide
upon which the practice Of the Ex .cuttve hes
been equally uniform.
The Constitution says: " The President shall
have power to NIL up all vacancies thar may
happen during the recsss Of the Senate bv
granting commissions that shall expire at the
end of the next session. The only doubt ever
suggested upon the construction OF this clause
Of the Constitution has relation to the true in.
terpretanon Of phrase, /" that may happen dur.
ing the recess Of the Senate"
The subject was fully discussed by Mr.. Writ
in the year isz3, and NO view or argument that
could shed light upon correct decision was
omitted from his consideration OF il. He ar.
rlyed at the conclusion that the predicament Of
vacancy IN office which might be filled by the
President under this clause OF the Constitution
was not confined by it to vacancies originating
or begin ming to exist during the recess OF the
Senate, but embraces "all vacancies that from
any casualty happen 70 exist at q time when
the Senate cannot be consulted as to nlling
Ahem." IL 10 upon this Interpretation alone