The New York herald., 1868-08-18


the Patent Office. During the past week three hun
dred and eighty applications and slxty-fve caveats
have been fled.
OPINIONS OF ATTORNEY GENERAL EVARTs.
WASHINGTON, August H. 1868.
The following are the opinions Of the Attorney
General sent this afternoon to the Secretary OF the
Treasury, regarding the Alaska Collectorship and
the Collector Of Customs for the port Of New Or
leans:-
Collector of Customs for Alaska.
ATTORNEY GENERALS OFFICE, August II, 1868.
Hon. HUGH MCCULLoCH, Secretary of the Treasury
SIR-In your letter of the 2sh ult you state that
law passed just at the close Of the late session
of Congress extending the customs laws over the
Territory OF Alaska and authorizing the appoint.
and that there was no time for nomina-
tion to be made for the office before ad-
oarnment Of Congress Upon these facts you
| be filed by the President during the recess OF
the senate, and If not, what provision can be lawfully
made for the execution Of the customs laws In that
Territory until Collector can be appointed. The
case then presented is OF original vacancy, and
2, 1867 regulating the tenure OF certain civil offices.
The power OF the President to make temporary ap
pontment In this depends upon the extent of the
| Constitutional authority TO nl up all vacancies that
may happen during the recess OF the Senate by grant
ing commissions which shall expire at the end OF their
next session. The only consideration which the pre-
else question here raised upon similar state OF facts
appears to have received IN this 0ice was given by
Mr.. Attorney General Mason, In an opinion touching
| the power of the President to al the federal
| onlces, established by the act OF March g. 1s45,
| ion, 363I. Mr.. Mason held that where offices are
created by law, taking effect during the session Of
| the Senate, and no nominations are made they can
not be filled by executive appointment during the
recess OF the Senate. II this opinion announces the
correct constitutional doctrine the President has no
power to make temporary appointment for Alaska.
opinion, that the view adopted is not supported by
| i1ch q
ths' learned Attorney >, General VIII the
question: and further that In another opinion given
| o year afterwards by Mr.. Mason there is abundant
evidence that his views Of the right Of the President
to grant temporary commissions in the recess Of the
Senate were subsequently quite different from those
officers In Florida ana Iowa. for in the latter opinion
| he expresses his general concurrence In the con-
struction Of the constitutional provision under
sderaton adopted by his predecessors and enforced
by the continued practice OF the Executive Depart
ment OF the government ron the ume Of Of s estan,
communicate herewith, In response to your Inquiry
as to the power OF the President to M the existing
| vacancy in the ONCE Of Collector Of New Orleans
have stated the Interpretation OF the constitutional
phrase describing the vacancies which may he tempo.
rary filed by the President which has been adopted
| by my learned predecessors In this ONCE, and in
| which freely concur. Under that Interpretation
Of this constitutional power BY the President
between cases OF continuing vacancies IN
the y the new cTeaoa
Of the once and those which 80 originate by law
| full termination OF an incumbency. Certainly the
need OF the Official service in the public interest is
presumptively as great In one case as in the other
and the executive duty OF the President for the dis
charge OF which this constitutional power IL vested
In him. is not qualified by the circumstance that the
office Is to be filed for the first time The ONCE to
| unless some legal mpedment to filing 1t exists.
do not find its case embraced within the operation
cepted construction Of the constitutional authority
OF the President. l have no doubt OF his power TO
grant commission to Collector Of Customs for
session OF the Senate. with great respect, / have
| the honor to be your obedient servant
| WIN. L. EVARTS, Attorney General.
| Collector for the Port Of New Orleans.
ATTORNEY GENERALS OFFICE, August II, 1858.
| Hon. HuGB McCrLLocH Secretary OF the Treasury
ton to the Coectorsbp Of New ' orleans a. and ase
| question which you submitted for my determine
ton, as arising thersfrom The case is ths;.on the
Customs at New Orleans rendered his resignation OF
that Office and subsequently, on the same day, was
sworn in and took his seat as Senator OF the United
| states from Louisiana No action was then taken
| upon his resignation by the Executive Department.;
but before the adjournment Of Congress, which oc-
Cured on the 27th OF July the President to the
Senate the nomination OF successor to Mr.. Kellogg
had by the Senate Whether the nominations were
rejected or laid over by the Senate does not appear.
The once Is now exercised by deputy previously
section OF the act Of March O. 1893 Il Statutes, 6a4
on this state OF facts you submit for my opinion the
| First-whether the deputy may lawfully discharge
the duties OF the oice OF Collector until successor
to Mr. Kellogg ~ lawfully appointed, and whether
in such a case the latter and his sureties are re-
| sponsibe for the conduct OF the formerS
| yecond-Whether the President under the cir
| cumstances, has the power to appoint Collector
Third-Whether the President or the Secretary OF
the treasury under the sixth section OF the act OF
MAY 49, 17s2 Il statutes 2soD mas lawfully authorize
any person TO exercise the functions OF Collector,
and require from him security Tor the faithful dis
charge OF the duties thereof until the oce shall be
| regularly nedf
| answer will give TO II may render unnecessary my
nary inquiry is whether the Office OF Collector of the
port OF New orleans is now vacant, and II II IL by
| what reason IL becomes vacantf nave not doubt
| that the ONCE OF Collector at New orleans became
vacant by the resignation OF Mr.. Kellogg and by his
complete institution as a member OF the Senate; and
II Is not important 10 inquire, In the present case,
which OF these was the efficient means OF his with
was adequate 10 the purpose and the effect OF either
under the actual circumstances or the case was ac-
| compllshed during the session OF the Senate. so,
too n there had been no express resignation OF MS
| ofice Mr. Keloggs acceptance OF the place In the
Senate and his Induction into 10, In view OF the pro-
| ylso OF the constitution that no person holding
any ONCE under the United states shall be member
must be considered az having the legal character OF
a resignation OF the Office OF Collector. The case II
one, therefore, OF an Office which became vacant
during the late session OF the senate by reason OF
resignation. MAY the President now Ill the vacancy
by granting commission which shall expire at The
end OF the next session OF the SenateS The ques-
ton thus presented, so far as 1t arises under the
\ x.aft fnnn tth nft tID