The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-07-09
vxecusfye Appointments Dnr'"S Wv
Recess or the Senate

Recess OIL tue oes'
Auorpcy. General Devens mas .Sont n
on,niou on the power OF the fie' n
onnoInt during the recess oil oo" ~. roce.s
vacancies occurring either duripS W.. ",o and
mr. during the sessions OF tDe oeps ,oav
oanoint,nents for which the Sepa'e p'"y
have failed 10 confirm. me oP'ns,v, '',,nan
elected by a letter from Secretary ~ n
relative TO the appointment OF ooon a.
Unrtranlt collector at Philadelp"'"' """
as follows: xyashinoton.
4" Ueparfment Of Justice, Wasn'o Snere
June rs, 1880. Hon. John sherman, The
tary Of Treasury Sir.-four 'eue, ~ ;nu
I7th instant informs me that tne coil',",s .,
~ A. p. Tuition a. collector OF Tue po', ~
philadelphia expired on the OF. VI , ,ha,
last while the Senate was In session ,n"S
I'm. President after that dale non' u ,ha,
John +. Hartranft to the once ~" , ,a
the Senate adjourned on the Io'n +,
without acting upon sara hotlI'ai ao,,, has
,rr,her informs me that the President uas
nnw under section 1869, Revised statutes,
"o,ointad said Uartranft to till the vacancy
~ aid office. and that the commission OF
la u,r,r,nft signed by the President II
now presented for you 10 coun''
assume. OF course, that thiS 70 a
on I'M
hv the Constitution when vacancies may
b3nnen during the recess OF the senate,
AMI is IN expire bv It's terms at the emu OF
ira next session. The question presenter
hv vou nropery divides Itself into TWO lh,
oyirieS-nanely, What Is the CONSTITUTIONS
authority OF the President TO act upon Va
concies i'm Office existing during the recess
81 rho Senatey and what effect Is TO be gwen
N the legislation Familiarity known as tue
.tenure.of.ofIice act embodied IN 'he sec
lion I 200. Revised Statutes? The rgDt
civen nv the Constitution 10 the president
in relation to this subject is in the follow
ING words: The President shall bave
mower TO on up all vacancies that may
bonnen during the recess Of The sem
ale by granting commissions which shall
expire at the end OF their next ses-
sicn) The construction OF this paragraph
was early subject OF consideration. III
II was TO be understood as limiting the
mower of the President TO ill by his tempo
rary appointment only such vacancies as
actually occurred by casualty, after the
Senate had adjourned, it was obvious that
many importsnt Offices would remain UNI
filled. and that the public interests might
be seriously jeopardiZed thereby. IL VIII
| be found bv brief historical examination
of The action OF The Executive that the unl-
| form construction has been that the Words
.may happen during the reces are TO be
considered as equivalent to may happen TO
exist during the recess and that the Pre'l-
| dent is therefore entitled to I'LL not only
| vacancies which have occurred suOSc-
quently to tbe adjournment OF the SEN
! ate. bat also such vacancies ~ existed
during its session which 1t failed or re-
fused To act upon. After careful cX9mlna-
tion I am satisfied that not only has The
practice OF Presidents been Uniform IN this
regard. but that il has Deen sustained, when
ever brought into controversy. by the al
vice OF the respective ait0rney-generals."
some twenty pages are devoted to quota
tions from the opinions II Att0rneY-Gene-
raj, Mason, Cushing, Bates. Eyart>, aud
| others i'm support OF this position. In re-
Ierring to the tenure-of-oilice act the Atior-
ney. General quotes freely from former
opinion OF Mr.. Eyarts, and concludes tbat
the act i'm question does not assume to tiench
upon the power OF the President, and
seems even to recognize the construction
which All President, have placed upon
that power. In conclusion, Mr.. Devon,
saws SIN direct answer 10 your inquiry
am OF oDinign that the vacancy in the col
lectorship OF the port OF Philadelphia hay-
Iug occurred during the session Of The SEN
ate, and the Senate having adjourned with
out acting upon the nomination sent 10 H.
the President may now appoint the noml-
nee or any other person to oil the vacancy
by a temporary commission to expire at The
end OF the next session OF the senate. and
that the condition OF the office i not affected
by any provision OF the 'tenue'oi-oflice
act. and will not be until the end Of The
next session OF the Senate without confirm
alton Of a nominee.
every res pectfuIly, your obedent SER
want. CHARLES DEVENS,
"Attorney-