The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-12-30

that the present tenure of Office law is
unconstitutional, and this makes case
for judicial determination, which would
probably result in a decision that con-
gress has power to regulate the subject
of removals in connection with the ten
ure q office. But it is perfectly clear
that under section 1867 of the Revised
Statutes the president can ask the con-
sent of the senate to the removal of any
such officer, which the senate can give
or withhold at its pleasure; or he can
make a nomination to the senate
of n person whom he desires
TO have succeed the incumbent, and il
the senate advise and consent to the APP
pointments the former incumbent would
be displaced, for the tenure of Office
liked by the law is qualified by the
power Of removal which the president
and the senate can exercise together.
Socond-During recess of the senate
the president can, at his discretion, sus-
pend any civil officer who holds his
office for term of years, except judges
of the courts, until the end of the next
session OF the senate, and can designate
some one to perform the duties in the
meantime. Within thirty days after
the senate shall be again in session the
president can nominate person in the
place Of tho suspended officer. II
the senate see fit to confirm
the nomination, the suspended officer
is pro fscto removed. If the senate does
not confirm the nomination the pres-
dent is required, as soon as practicable,
to make another nomination at the
same session. This provision implies
that the senate is to act on successive
nominations until it has confirmed
one. Ii it confirms none Of them the
suspended officer is not restored to the
office unless by the legal force of the
term suspension" he has by necessary
implications of law right to demand
restitution to the office if the session of
the senate is terminated before the
office has been filed by new appoint
ment
What then is the legal meaning and
operation Of "suspension?" If we con-
strue it by the provisions of the act of
1867 it is apparent that it means a tenn
porary displacement for some cause
therein assigned, and this act gave the
suspended officer right to resume the
office if the senate did not concur in the
cause assigned for his sus-
pension. But the suspension" under
the act OF lS69,and the Revised Statutes,
is OF wider Specification; no cause
need be assigned for it by the president,
but it may be made in his discretion;
and in the event of the refusal of the
senate to confirm some one else in the
place of the suspended officer, the law,
as it now stands, does not say that the
suspended officer shall resume the of
flee, and it does say that the president
shall make second nomination. 1t
would seem, therefore, that "suspen-
sion" is now practically equivalent to
removal, as removals were previously
regarded, and that the office, If the
senate adjourns without confirming
some nominee, remains in allegiance nm
til 1t is filled by appointments by and
with the advice and consent of the
senate. 1t is perfectly clear that the
right of the suspended officer to be re-
stored to the office is wholly taken
away.
Third-The third question can only be
by saying that in the case
supposed, the Office is 10 be filled, if pos
sible, by the concurrence of the presi-
dent and the senate at the first session
next after the suspension Of the incum.
bent; and ifIot so filed at that session
the office remains in allegiance until it is
so filled, and the powers and duties are
to be exercised in the meantime, with
on. salary, fee, or emolumeuts, by such
other officer as may by law exercise
such powers and duties in case of a VA.
cancy in the office. (Ravised Statutes,
section l169). II is som what remarka-
bic that the law should have bsen left
in this unsatisfactory state, for if the
office from whish the incumbent has
been suspended duringa recess of the
senate is not filed by a new appoint
ment atthe next session, two very in
convenient consequences follow: First,
that the "other officer" who may be des-
ignated to perform the duties must
serve without salary, fees, or emolu
mentsi second, that there may be cases
when there is no such other officer who
can, by law, exercise the powers and
duties, or cases where it is doubtful
what other officer ought to be selected.