New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1880-07-07
THE TENURE OF OFFICE ACT.
AN OPINION By TIE ATTORNEY GENERAL - TIE
PRESIDENT HAS THE POWER TO FILL VACANCIES
NOT FILLED BIZ IHE SENATE

An OPINION BY TIE ATTORNEY GENERAL - TIE
PRESIDENT HAS THE POWER TO FILL VACANCIES
NOT FILLED BY HE SENATE.
WASHINGTON, July 6. 49, Attorney General
Dcvons has given opinion the power OF the Pres-
dent during recess OF Congress TO appoint persons to
vacancies occurring either during the or during
The session Of the Senate and appointments for which
the senate may have failed to confirm The opinion
was el;cel by letter from Secretary Sherman rcll
tive 10 the appointment Of John F. Hartrauft Collector
at Phladelphia Is addressed 10 Secretary Sherman
and Is as follows:
SIR: Your letter Of the 17th INST informs that tie
commission OF A. h. Tuition. Collector OF The Port
Pmlade pha. expired on the 31st ~ Iay last while the
datenomindtrd John T. Harir To the Office and hat
tba senate adjourned the 10 inst. without HctuZ
Ppe.dent has now under Section 760 OF the Revised
Salutes appointed SAD Hartmann 70 iii the vacancy IN
signed by the President. presented Tor you to
cOuntersgn assume. OF course. that this is minis
when vacancies "ay happen during the OF the
Senate apd Is 10 expire by IT. terms at lie end OF It's
The question presented by properly divides itself
inr0 two inquiries namely, What u the Constitutional
exisilpg during the recess Of the Senate and What
effect to be given 90 the legislation famiary known
769 OF the Revised The right gwen fy The
to the President IL relation to this subject
Is In the following words
The President shall have power to i'll mp all
ces that happen during Toe recess Of the Senate by
their next session."
rhe construction OF this paragraph early subject
of consideration II To De- understood limiting
the power Of the President to Ill bv his temporary AZ
nortnent only such vacancies az actually occurred by
casually ntier Tie Srnat had dourpcd. obvious
mat many important Offices would remain untitled, and
thai the pubic interests might be seriously jeopgrd.zd
thereby.
the action Of the Executive that tine uniform cons;ruc
ton mas been that The words happen during the
recess" iMc 20 DO considered as equivalent 10 may
heppcn exist during the rsrcss and that the PresI
dent IL therefore entitled to I'll not only vacancies
which have occurred to the adjournment Of
the Senate bnt such vacancies existed during
which tailed refused To act upon After
careful examination satisfied that only has the
practice OF Presidents been uniform In TINS regard but
that II has been sustained whenever brought into
trOversy by the advice OF the respective Attorney
Generals.
About twenty pages are devoted to quotations from
the opinions OF Attorney Generals Mason, Cushing,
Bates Eyars and others in support OF this position.
In referring to tie Tenure Office the Attorney.
General quotes freely from former opinion Of sir.
Evarts aud concludes that the act in question does
assume trench upon the OF the President,
seems even recOgn the construction which all
Presidents have placed upon that power
In conclusion Mr.. Deycns says:
In direct answer your inquiry. am OF opinion that
the vacancy tho COllectOrshp OF the Port OF Pba-
de pha having occurred during the OF the SEN
ate and the Senate having adjourned without acting
upon the nomination sent to it, the President
appoint the nominee any other person to fill the
caucy temporary commission TO expire at the end
of the next session OF the Senate and condition
OF the ONCE Is not affected by provision OF the Tenure
OF Office act and will not be until the end or the
session Of the Senate without confirmation OF nominee.