The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-09-08

not thus provided Tor appointment is will
the President, whose success In hi
weighty charge " essentially depends
on the competency Of appOintecs. Thu
the reasons for u constitutional provision
all forbid that any judgement, and will
but those of the constitutional appointing
power, should have legal operation
in the matter OF appointment Th(
most important civil appointments
are made by the President will
advice and consent oi the Senate
II Congress can compel the President
to nominate d person selected by another
it can compel the Senate 10 advise auC
consent to that nomination. II the tore
most man in competition tests Is entitled tC
office, that test must be conclusive upOr
all whose action Is required to please him
in office, aud, in fact, the action Of all o.
them Is merely formal, except that on
Judges in test; but advice and consent
imply the exercise of judgment and will
so does nomination; so does appointment
There Is this difference: that the judg.
ment and will of the Senate can regard
only the person proposed by the Presi'
dent, while there Is no similar COnstitu'
tionRl limitation upon his judgment and
will. But there Is no right in Congress
to cOnstrain either to adopt the judgment
and will of others. Such cOnstraint frus.
trates the constitutional design that the
judgment of the Senate shall revise the
judgment Of The President, and that
Judgment both shall concur in In filling
an office 1.rgf..gw 40. ~
Although 1t might not be thought expe-
dent to apply the competition test (if es-
tablishGd) to appointments in which the
Senate must concur, II should be remem.
bGred that there Is as much constitutional
right to do so rs in case Of appointments
OF tho other class. When the appoint.
ment to an inferior Office Is vested in the
President alone, his individual act accom-
plishes what Is done by himself and the
Senate together In an appointment to u
superior office, and should be as indie
pendently performed as each part of the
compound process. lnthe latter case the
appointing power may avail itself OF the
Judgment of others, rs one means Of in
formation for want Of personal knowledge
Of the candidates. II has been 50 from
the foundation OF the Government; but
this has been done In discretion. can
see no constitutional objection TO tho EX.
amining Board rendering no imperative
judgments, but only aiding the appoint.
ing power with Information. A legal
obligation to follow the Judgment Of such
Board, Is inconsistent with the constltu.
tiOnal independence of the appointing
power. The agreement has been that
there Is An unquestiOned right in Congress
TO create qualifications for them. This Is
admitted but this right to prescribe
qualifications Is limited by the necessity
OF leaving scope for the judgment and
will Of the person or body In whom the
Constitution vests the power Of appoint.
ment. Those parts Of the Constitution
which confer this power are rs valid as
those parts from which Congress derives
It's power TO create offices, and one part
should not be sacrificed TO the other. An
office connot be created except under the
condition that 1t shall he filed accord.
Ing to the constitutional rule. The
legislation of the cOdntry from an
early period has been supposed to
authorize different constitutional view
from that which Is herein expressed. A
practical construction of tho constitution,
says the Supreme Court in Veaze Bank
~. Eennoe & Wallace (lIep. 544), Is enti.
tied u great consideration and should be
followed In all cases of doubt, but when
q congressional construction Is inCOnsis.
tent with the plain meaning Of the con.
stitution rs ascertained by the authOrita.
tive canons, that meaning cannot lie over.
ruled by such construction, how OltensO.
ever repeated. Congress has at various
times authorized appointments lndepend.
emily Of the President, courts Of law, or
heads Of departments in tho department,
bureau, or the custom service in the inter.
nal revenue service, in tho land office and
in some other branches Of the civil ser.
vice. Upon this esislation 1t may be OBJ.
served, first, that in some OF these cases,
such as those Of deputy marshals and de.
putty clerks, the persons appointed are
representatives Of the officers who appoint
them, and who arc responsible for
their conduct, and perhaps 1t was con.
sidered by Congress that the Office was
substantially In the principal. Second,
That II was no doubt considered by Con.
gress that some of the persons whose ap.
pointmcnts were thus provided for, were
not officers In the constitutional sense Of
the term. Many effiploynents now uni.
versally held to be Offices were not esteem.
ed such at the outset, but with the growth
OF the government were raised 10 that
rank, thus the force OF tho legislation oil
Presidents is somewhat weakened, yet II
can not be denied that some of them take
for granted that Congress il absolute in
the matter Of appointments. Such, how.
ever, Is not the constitutional rule, Con.
gress has power to distribute at its pleas
tire tho appointment Of Inferior officers,
between the President, Courts Of law
and heads OF Departments, or TO
vest such appointments exclusively
10 one or two OF those repositories, but II
has not the power TO vest appointments,
else where directly or indirectly. Attor.
ney General Segare says; Congress has
no power, to vest the appointment Of any
employee coming fairly within the defni.
tion Of an inferior officer Of the Govern
ment in any other public authority but the
President, the heads Of departments, or
the judicial tribunals. "A opinions 164)
He also was Of the opinion that where a
Custom House officer Is appointed by the
collector, with the appreciation of the
Secretary Of the Treasury, this apprOba-
tion is really the appointment, or else the
appointment Is null and void under the
Constitution. t104-16O) So the Supreme
Court has held that clerk appointed by
the Assistant Treasurer, with the appro.
baton of the Secretary Of the Treasury,
was appointed by the head of the De-
partmght within themeaning Of the con-
stitutional provision on the subject Of the
appointing power u. 8. "a. Hartwell, 0
Wallace Rep 89S-4.) Attorney General
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