Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-28
TENURE OLE 0FFICE.
Powers of the President-OpInion of
Mr.. LineoIn's Attorney General.

act. Upon all other counts Of the indct-
ment against him he was acquitted, when,
at very early stage of the present session,
the House Of Representatives, by an over
majority, voted down the reso-
luton of impeachment. Since that time
no possible new ground for impeachment
has been found, except the removal of
Stanton. Granting the action of the Presi-
dent in the Stanton case to be violation
of the civil tenure act-though it is very
easy to prove that it is not-one very i'm
portant question involved in the determina-
ton in Johnson's guilt or innocence is
whether the President is bound to execute
law which he believes to be uuconstitu-
tional. Upon this the opinion of General
Jackson is well known, backed as it was by
official acts which left no doubt on the sub
iect. Never, until the present day, was the
doctrine of Congressional supremacy and
Executive subordination preached by any
political party, still less enforced with such
a penalty as is now threatened against Mr.
johnson. Republican politicians and
newspapers have recently Joined in chorus
on this subject, which, however, shows no.
thing so much as how little they know,
either of the theory or practice of the gov
eminent in the p1atter.
To-day dug up from the books of the
Internal Revenue Bureau a document
which ought TO have some weight in de-
termlning this important question, and
which has not yet seen the light of print.
1t is the legal opinion of gentleman who
ought to be received as good Republican
authority-ex-Attorney General Speed. 1t
is not doing injustice to Gen. Logan, Gen.
Schenck, Mr.. Bingham, or any of the Con-
gressional lights, on the subject of i'm
parchment, to say that Mr.. Speed knows
quite as much law as any of them. Con-
gress, in 1865, passed a law vesting the
power of appointing Assistant Assessors in
the District Assessors. Mr.. Speed is asked
whether this provision is constitutional,
and, if not, whether the President may,
acting in the belief that it is unconstitu-
tional, disregard it. l su5join the material
portions of the opinion
ATTORNEY GENERALS OFFICE, April
%, 1S65.-Hon. Hugh Mccullough, Sec
rotary of the Treasury: | have duly con-
sidered the important and interesting ques-
tons suggested by the Commissioner of
Internal Revenue, touching the recent
legislation of Congress with reference to
the office of Assistant Assessor of Internal
Revenue, and which you have submitted to
me for my opinion. The questions may
be thus stated:
al. Whether the provision of the act of
March 3, 1865, vesting the appointment of
Assistant Assessors in the Assessors of the
respective assessment districts, is consti-
tutional.
az If il be unconstitutional, in whom is
the power of appointing Assistant Asses
sors by law vested?
"3. If the President is, by law, vested
with that power, shogld he exercise it
against the express provision of the act of
Congress, before any judicial determina-
ton has been had of the two preceding
questions?
a. The first section of the act of March
8, 1865, provides that, within each assess
ment district, the Assessor, whenever there
shall be a vacancy, shall appoint, with the
approval of the said Commissioner, one or
more Assistant Assessors, who shall be
resident in such assessment district.
"The question suggested by this enact
ment is, whether it was constitutionally
competent for Congress to confer on the
Assessors the power of appointing their As
sistants. The Constitution provides :
=" Sec. 2, Art. 2, That the President shall
nominate, and by and with the advice and
consent of the Senate, shall appoint EN-
bassadors 4 and all other officers
of the United States whose appointments
are not hereinafter provided for, and
which shall be established by law. But
the Congress may, by law, vest the APP
pointment of such inferior officers, as they
think proper, in the President alone, in
the courts of law, or in the heads of de-
partments.
"This is the constitutional provision
which the act Of 1865 may be supposed to
infringe. Manifestly the statute is in vio-
lation Of the constitutional provision il
the Assistant Assessors are, within the
meaning of the Constitution, officers.
The Attorney General proceeds to argue
to show that according TO the highest au-
thorities the Assistant Assessors are officers
of the United States.
81 am Of .opinion therefore, that the pro-
vision of the act of 1865, to which have
referred, vesting the power of appointing
Assistant Assessors in the respective As
SCISSORS, is clearly unconstitutional.
"The third and last question on which
you have desired an expression of my
opinion is whether it is the duty of the
President to exercise the power of appoint
ment in the case of these officers, in view
of the express provisions of the act Of 1865,
distinctly declaring the will Of Congress
that he should not appoint them, and di-
rectly against that expression of the will
of the Legislature, and especially before
any judicial determination has been had OF
the first two questions to which have di-
rected my attention.
"If the President should be of opinion,
on the foregoing reasoning, that he posses
SEES the power, constitutionally, to make
appointments to the office of Assistant As
SCISSORS, think that it is clearly his duty
to exercise that power. The question Of
his constitutional authority in the case
presented, depends upon the view that the
President may take of the unconstitution-
ality of the existing legislation on thesub-
iect of that office. If ne fully concurs in
the view ! have taken of the question,
there il no escape from the conclusion thai
he alone can lawfully iii the offices. 1t is
his dGtu to do all that he has lawful poorer
to do when the occasion requires an exer-
else of his authority. To do less on such
an occasion would be pro tdnto to abdicate
his high Office The Constitution is the
supreme lava law superior and para.
mount to any other. If any law be repug-
nant to the Constitution, it is void. In
other words, it is no law. 1t is the pecu-
liar province and duty of the judicial de-
partment TO say what the law is in particu-
lar cases. But before such cases arise, and
in the absence of authoritative exposition
of the law by that department, il is equally
the duty of the officer holding the execu.
tive power Of the government, TO determine
for the purposes of his own conduct and
| action, as we'll the operation Of conflicting
laws, as the unconstitutionality of any one
1T will be observed, let me remark il
conclusion, that the action Of the President
in appointing to the office in question, will
not preclude or affect judicial inquiry and
decision on the points that have been pre-
scented. If two persons should claim thC
authority Of exercising, in any assessment
district, the Office of Assistant Assessor, one
| by appointment Of the President and the
other by appointment of the Assessor, the
| question would be then peculiarly one fol-
| iudiCiaI detarmi Observation-Disclosures a;tho-