The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1868-05-26

.haolpte vacancies III oincc, Moesus ss-.-o.,
nesrs to me. make 1t both useless. an ,...a lsc.l
s,;tutionsl For in case OF al apso' ~ c.
rscancy in the recess of the senate, Ans ou -.
saea .; ;,sals in direct terms. anthorlzes the
n.:a.n.tn iii 4 temporarily, tocontinne tor
I.i 49, :. - short : period as he may desire,
% 'ous =. - heyond the end of the uext ssa-
nov eA.1 -. csnate. Hence, If this law Vas
s'on y - confer on the President the power
\ - IN leraI vacaneiexin ethces 0ceuninx IN
,Sa recess. il is nugatory-it is perfectly use,
for tbs President was previously vested
nv tina Constitution with this authority.
- Sra - anime that the intent-uf fhi6 nv
- : rrorida. for absolute legal vacancies IN
oEca ncc,r,;n 10 during the session OF t1e Sen-
~ ro,ld wake il clearly unconstitutional
eas ,ha Constitution provides, as we have
~. ~ ,hat tbe President '.shall nominate and
! y. < IA with tbs alrice apu consent o. me
Il S.,,a,. shall appeint all ephcsrs ~hese sps
no;ntment are not otherwise provided tor IN
IL Coustitation itself, whether createu by
,ha Constitution or by law. The President
mnst therefore, obtain The consent. Of the
Senate when III session neiefe ne can
make an appointment to NIL an spsoiuse
I491l vacancy, with the exception OF ono
clsas of officers only, inferior oihcera, VINO
NAV be appointed by the President alone
when Congress shallso provide ny law. but
the Office Of Secretary Of War is not OF this
CASA /, il not an inferior office, and is de-
clared by the law OF 1889 to be superior
Office. and the Secretary is styled "a prinni-
nal officer Congress could not, therefore.
bv law vert the appointment Of this and simi-
lar officers exclusively in the President, either
or a short or a long period. To maintain
that Congress could by Law dispense with the
advisory power Of the Senate, would be equiv
alent to declaration that Congress could by
Law amend the Constitution, or abolish 1t en-
tirely; for If Congress conld suspend one Of
its provisions they msy suspend any or ell Of
them. This would be reducing the authority
Of that great charter 10 the grade of a statute
only.
The limitation of such appointments to q
period not exceeding six months could not
change the const;tutionality of the provision.
For, If Congress could by a statute dispense
with the advisory power over appointments
during the sessions Of the Senate for single
day, they could for year. or ten years, OF
forever. II is not q question of TINA during
which such appointments may run, bnt Of
constitutional power, to deprive the Senate
OF an opportunity TO exercise judgment IN
Tho case. The Constitution vests this au.
thority IN the Senate, without regard to the
length of time OF service Of the appointee
and it does not confer the authority on the
President to disregard it, nor on Congress
the power to sci aside either for a long OF
short period
| Congress could, Of course abolish the wal
| or any other department created by law,
/ They could also abolish the office Of Secretary
! Of War, or mite the War Department with
/, roue other department temporarily or per
/ msnently, and require The head OF that othel
! department TO perform the duties of both, Oh
/ might reduce it TO the grade of a bureau IN
/ another department, and authorize an inie
/ rior officer To perform the duties now devolv
( ing on the Secretary and probably might
/ by law, authorize the President to do this 3
| his discretion but this Is not what is claimed
iv The President under the law of 1872 III
does not claim that this authorizes him L
abolish the War Department or the Office 0
/ Secretary of War, or TO unite 1t with an,
other department Temporarily. or To devoiv
the duties of Secretary Of War on the hea'
OF another department, or to reduce i !,
grade. and derolge it's duties on an inferio
ofieer. He claims that Congress has by hi
las, approved August !, 11sa, vested III hin
the right to authorize any person fadopt
ing the words OF Inc statute at his discre
ton TO perform the duties of +" Secretary Q
War during the session OF the Senate, Their
being an actual legal vacancy in said Office
for a period not exceeding six months.
Now, if this is the true meaning Of thi
law, it authorizes the President, as we hav
seen, to dispense with the advisory power {
the Senate, when in session, in the appoint
ineat of great officer to fill "a principal
Office for period Of six months; and. as til
would be in direct conflict with the Constitt
ton, the law as thus construed must be vol;
10 give this law force We are thereto,
compelled to construe the word 'tvacancy
/. mentioned in the act as meaning earpore
vaeaney-the absence of the officer from b
eifice-ths legal tenure Still continuing
him, as when the officer is ont of the city;
disabled by insanity or sickness; is in cus,od
or in prison, or is necessarily occupied wi
z ether duties. This Interpretation Is IN pc
! feet harmony with the literal and usual mes
!. ing Of the words of the statute itself, g
case OF vacancy in the Office of Sc
? rotary of the Department
War whereby he cannot perfor
the duties of his said Office It shall |
lawful for the President of the United State
in case he shall think it necessary,
authorize any person, at his discretion, to pc
form the duties OF the said Office" dc Ar
any other construction would render the qua
flying phrase, whereby they cannot perfor,
the duties of their said respective offices,
meaningless. II is settled rule Of constrn,
ton that yon must, IL possible. give ever
word Of statute Gaming and force BIZ
what meaning can be attached to this clause
if applied to an actual legal vacancy, as
death, resignation, removal, or expiration {
legal term of service. In sueh cases the Of
icer, and bis legal functions as such, hav
ceased to exist. There is no officer in exist
L rnl3f nfNw IL,
such such cases, aahereby they eanno. perform ii
duties of their said respective ofiices.n
sheer nonsense. The law does not provid
that in case of any vacancy, or all vaeau
eies, but in case of vacancies Of this descrir
fion, swherehy the officers cannot perfsrr
the duties of their Offices
The same reasoning would apply 10 anptf
er qualifying phrase in this act AUDITORIUM
the President to make temporary appdip
ments. II is in these words: ala CAGE b
shall think ii necessary How is it possibl
to app'y this language TO an actual legalya
cancy in a superior Office, such as Secretar
ofStste; Secretary Of War, 10. The necess
ty Of having an officer TO fill these great off
ces was settled by Congress when the la
was enacted creating them. If an acatu,
vacancy occurred, the necessity OF Glline
could not be question But If the officer wa
sick or absent from the city. whereby b
could not perform the duties Of his said Office,
the question Of necessity for the appoin,mer
OF some one. by detail or otherwise, to per
form these duties. until he recovered or "a
turned to his post. would arise. And no on
wopid be more Ct person TO Judge Of tbs
necessity than the President.
81 | may observe here, in passing, that III
allegation so frequently made during this .r
Z al by the Presidents counsel and by Sen,
tors in this consultation. that ssthe practice
, OF making temporary appointments, the Ser
ate being in session, to fill absolute legal v,
caneies in office, .'has been freaaent ander
broken, almost from the formation of Ii
Conveniently is not supported BY facts.
have examined. as carefully az INV tim
wonld pernit, all that long list of cases )
temporary appointments, supposed bv III
Presidents council to bear on this case, !
they stand recorded in the printed recor
OF this trial, beginning on page SIS and enc
/ ing on page $50, and End that nearly all !
them we're made. AS the list itself shows. a
account ofthe absence or sickness Of N
regularly appointed officer. And nearly Il
OF The residue we're made to fill vacancies AZ
cruing Turing the recess Of the Senate. and