New-York tribune., 1868-08-13
TIE PRESIDENT CANNOT DISPLACE CONMIS-
SIONER ROLLINS


letter TO United States Attorney General Eyats and the
opinion OF the Attorney General in response thereto are
annexed:
DEAR SIR: Iuclosed hand you n copy Of letter nd-
nal Rcycnc tn nc President of the United States the
sh day of June 1867 aud also copy OF the PIe'GcntS
circumstances, the following questions are presented
for your consideration FIRST: Is me oihge OF Iomnis'
solcr OF Internal Revenue vacant SecOd II the "cc
vacant when did the vacancy occur and can success
20 Mr Rollins be appointed during the recess oil the
The omct Of Commissioner Of Internal Revenue being
very important and responsible one l Is desiiIuE tl
there should doubt To the legal status Of the per
in charge Of IT, desire that you viii favor me WIN
your opinion upon the question tlhs presented 10 E' ~
your earliest convenience Very respectfully your obcd!-
H. McCrr1ocH. Secretary Of the Treasury
To the Hon. WIN. NJ. Eyarts Attorney General.
ATTORNEY GENERALS OFFICE, Aug. 10, lscs
ne Hon Ifuyh ~ .0rioch '.1r'ar1 of he L'ta.1T. -
sdcraon by your ct'cy Of the h inst in relation 20 nc
present condition Oft Once 90 "l I'eII
Of Comui. ioncr of Internal Revenue 10 which hc bad
been appointed by tie President Of the United states, by
ana with the advice and consent of e senate addressed
the President under date Of Juuc s. lsds TIE Following
o,rtcror Isrras,l Revenue w,'us.1ey, Ja'gs l.ia
NOAH. L r ,oa e r,, s,au of ry ole. tie ret
,ro. H. D.. ~ 81 JOY .. -. % .'.,, l- ." -
'"s- y '' T. A. Rolls. Coars' Of Literal E,,,.a.
The ''s m 1s,ai o. r. 4 p-r, - Cor,, Of a.erral
Ee.tr.c t.'r J..eg. fs-g. stills f5f acr,rt,L'
Upon these facts You dcsg Iuy answer 20 Two qucs,
tous viz: First Is the office Of Commissioner ol Internal
Revenue vacant. Second IL the uiltc Is NJca'i W..i
oid tho vacancy occur ard CI successor 10 hr hs'
Tic Office al COMMISSIONS. uf Internal Bcy,nuc is 1f
You suggest. very important aud Responsible ono ~
Intelligent, efficient. aud li.hiaI "dlil ration l' Z" .',
terof the scltcst interest 60 thc public fcyeuur 3a I.
public credit; and IT'S justly -ull'vi 'i s""rl"N. ..-
and the Laws. u respect % this office aad 0 a,in '''A
on' ss.l hc iWu.l.'. lH' que ''.' & "', 'l 1..' I
60 mc COME io hc 40 u.ac,'HI .il ' .'''.,n '', m H
the pcUNe administration ul tac Government uy ny
force of cine gctc Legislation o tougc Known "e tr
TcuuGc-ott ti,ItOmcc BIZ thAt h'' iurt, ga ul."
,l'ss ct "o"r-. , i.sn l"g,"9sa ugs @ .9N & r."
which cannot be terminated except bY te 'unculi'1rr
Of tic r,,sden and tlg senate, iH c appointment oi
So or- tine President, 10y force Of me Constitution
and thc avs had tHc power g" terminate ,lr ono, H'"
~, Wv, l,rei 5r tiou Of Ai. Office should
rtlut upou the time or manner oi The Pir-r"h his rA'
tlou ls proper authority n thr premises lac l''t'a,
cilcct therefore o tHc legislation referred Too ls ue fret
Tic purpose OF tie Tenure ofOnico ciyl BIN was to
change the d0ctiiuc and practice 90 the GuNtfhmc ty
which removal from Office at tlc mere discretion "I i"t
President had been osi""-h' 81 ''' aug. "' '"
been thought necessary air"d.nt vi tAc L',t"l. .'
duty aud responsibility u.o't We co.. -l' ''''H l'
maintain tue ,hloucy "hd h"'"'f ' 'H' fY'''
service u fulfilling the manifold aId ucr>faui "slId
lions of administration. and u cErtuuu" uI thr laws
THIS purpose. which might nave u''h H"Il'. l3 Ip'I'
lucut of the concurrence oi t, -.a.r Nih ii' I.rcu-
in ctctug removal from ".!rr ad }ci lct ino ca
pacy oi rcHo'" as separate "h' I"N' P,H"'ll. H"l no.
open 10 thc eNlgcucics 81 thr IL"e h''t,' nave '''"
]
ton ot the oitccrs hold up"n Ala once { iHr ulri WIZ
of Inc Executive aud the Senate rNrpt by iuc sole aud
specific mode OF the appointment to1.tln"''on' % niu
qualification of % huetc.so! 4"r liih N" "p"' M 'II
/ into which he shall once nave h.tu W.Ht'tI
riIi and me- Tlc consequence Of th. !. tuat there D.,
no other possible mode ot 'acatiug uc Office thu' pro
tractcd against thc win ~ o oiecr during the session
o thc Senate however fagtrls and lupcuous h, per
suial official ouudEct may br, except through The con
Durr tAr recess 81 Tie -cr1c tlo remedial proceed
ing OF temporary suspension Tor r-r l ihc Ltccu'c,
thclcu provided and MAY result H ic i"t"' M o tue
officer vItout the necessity u tr suuliarcuus appoint
The language Of tie scctiou securing The right auG title
10 The oficc-nolucr rI, too de'l O" admit Of doubt.
pou,d ,,or ar ra'srt Of ic se"a,e 60, r
/ 'oa aao ,..' L'I'.'I l' . , , -t.i y, .i @ T -
/ ia,i. except is herein o,lcrs sc pio,i.,I"
air Rollins tAcu al the date OF this letter 10 the pros-
dent, VIA, entitled 40 hold the office of Commissioners of
internal Revenue until successor should b-cu APP
I.utrd y and with the advice and Of the sen.
ate. and shOuld have qualified and the only interruption
OF ms his personal hight possible, under the Law, was
! the general process of Impeachment aud Judgment
thereon; the special proceeding ~ SUSPENSION, acc,
ton aud Judgment thereon. provided hy Tie act lisclf
and which obviously puthcs of the nature % lmpcach
luent. II rested thcn-uudcr the operation OF this law
solely With Mr. Rollins tO determine whether hc would
voluntarily put end 10 hi, hold upon the office, by
rrluqu-hmcnt or resignation OF 10; aud the question
whether the office IS now vacant must ia my opinion,
turn entirely upon just construction uf the effect of tc
letter OF Nh Rollins Ia this regard This letter Is mani
fcsty framed wlth ne intent oil carrying an impression
that the writer does place himself ~ respect 30 ms ,hc!al
audit d
the president, l cuhhc'tlo theitN''H, upon uHrlchl
footing from that n which the law against or without
/ reference To his wishes, leaves lbm But upon duly
weighing All parts OI I'M. oHlcdI communication 10 the
President which respect 10 the Comni ZION would require
me il possible, 10 give some official efficacy 20. cannot
hesitate TO pronounce 10 entirely without any legal opera
lion whatever upon Ar Eoliiuss tenure Of his office
am obliged to gard 10 rs present tcudcr OF tcsigna
non in actual REIMBURSEMENT Uf The Office only upon aud
after the event which s named and described by the
ms event in the language OF Mr.. Rollins, addressed to
the President is, the qualification Of my successor
f. wl be perceived that this event which is rpen
tLis tcuder Of resignation" INTO ielinquishmcut Of
tIc senate and OF the successor Of Mr. Rollins, which,
by the terms of the Tenure OF civil Occ act depuyes
INN of his office and, consequently OF any power viii
III ItSaIu t ~ ~ ,, aI or LEGAL forcc W6ntryer in &
; a hc discretion disposition OF the President any
,,er aver the Office OF Commissioner OF Internal eyr-
pO"ci he did moi possess without H. II remains o,
tr me- 10 consider whether the endorsement upon t,
Letter of MT Rollins made by the President on the 5 OF
le,o, anerae upoD the position OF the Office OF Com.
sioucr Internal Revenue respects It's vacancy
bs prcseit authority to hll IT, Undoubtedly II an officer
M the Government places ia the hands Of the President
condtonal resignation, which takes effect as an official
or legal relnquishlpent OF his oihce upon such
! assent TO the condition or not as may seem 10
| him discreet, and IN such case an Endorsement
Of tins description would indicate his acquescence In the
dienostons of the Office which had been made by the
conGitionaI resignation have, however, Ia the nuga-
toTv character which have assigned to the letter OF Mr.
pniius sufficiently shown that IN my opinion, II pos
scssrd no legal or Official operation whatever upon the
oece or the Presidents authority over IT, to winch the
udorseuent could attach itself aud must consider that
the o0ice OF Commissioner OF Internal Revenue aud Mr.
punss hold upOn it the If his letter had
not been written. or the Presidents Endorsement made
tLereon and that the office vacant This cOneu-
@ rendeTs II unnecessary 10 consider reply TO your
second question which arises only in case Sdc sGGud have
d'nosed of the matter submitted wholly with the
premises OF the existing legislation governing the qus
H. and without any discussion OF the larger topics
shinS the conformity repugnsnce Of this lerslaton
,b The Constitution, for nOuchdiscusson would be ap
propriate the inquiries TO which you had called my
| attention. IA ro,. o,o A..
NJ v.ti