Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-04-08
INDIAN TERRITORY COURTS
The Controller of the Treasury's Opinion
as to Payment Of Salaries.
The Judges Can Receive Pay, but the
Marshals and District Attorneys
Must Await Confirm tiOn.
a. n

Judge Bowler, controlleraof the treasury,
establishes several Important legal prin-
ciplcs in an opinion given today In regard
to the payment of the salaries CT the judges
and other officers of the courts created by
the act ITO provide for the appointment
of additional judges of the United States
court in the Indian territory" approved
March l, 1855. He holds that there is
ample authority for the payment OF the
clerks of the several courts. the deputy
clerks of said district courts, and the clerk
of the court of appeals, ana also the mar
shals and deputy marshals, in addition 10
the judges, district attorneys. ana coh1Ihis-
sioners specifically named AS constaoies
are not specifically named In the act anu
do not &C me under any OF tne uests
of the officers therein provided Tor, the con-
troller saws there is at present TO appro-
priation available for the payment OF thelr
salaries, although no doubt Congress
thought they were providing for the pay
ment of all the officers created by the act
of March l. 1895, and would, he says. nave
made provision for the constaples had lneir
attention been called to the matter. lheir
failure to make such an Appropriation can
not however, he says, be corrected py the
executive branch OF the government.
Date of Payment.
The controller also discusses the con-
ditional judges provided for by said act
can be paid from the date of their qualfi-
cation, or whether they come within the
restrictive provisions of section 1I6l, X. ;.
Section 1861 provides that mo money shall
be paid from the treasury, as salary, to
any person appointed during the recess OF
the Senate, to fill a vacancy in any exist
ing office, if the vacancy existed while the
Senate was in session, and was by law
required to be filled by and with the advice
and consent of the Senate, until such ap,
pointee has been confirmed by the Senate.
Article 2, section 2, paragraph 3, of the
Constitution of the United States provides:
THE President shall have power to I'LL up
all vacancies that may happen during the
recess of the Senate by granting commits
sions, which shall expire at the end of
their next session"
TT has been uniformly held by the
various Attorneys General. from Attorney
General Writ 10 the present time" says
Controller Bowler, that under the clause
from the Constitution above quoted it is
within the power of the President to fill
vacancies existing during a recess of the
Senate which originated during session
of the Senate, the words may happen dur
ing the recess being considered as equiva-
lent to may happen to exist during the
recess. And it has been specifically held
that this applies to offices which have been
created during session Of Congress, and
which have not been filed by an original
appointment by and with the advice and
COuSeut u TIE senate.
Had Constitutional Power.
1t follows from these opinions of the va
rious Attorneys General, which have been
followed In practice by the executive, that
the President had the constitutional power
and authority to appoint the additional
judges provided for in the act of March 1,
1895. without recourse to the clause in Sec
ton 2 of said act specifically empowering
him to make such appointments during the
recess Of the Senate. That the President
relied upon his constitutional right to make
appointments under such circumstances is
clearly shown by his act in appointing the
district attorneys and marshals provided
for in section of said act and in regard
to whose appointment during the recess no
such authority was given as that in regard
to the appointment of the Judges.
Marshals and Attorneys Must Wait.
at follows that the marshalseand district
attorneys are not, at present. entitled to
receive the salaries provided by law for
those offices, but must await the receipt
thereof until they have been confirmed by
the Senate; and SO, also, the additional
judges appointed under the act; of March l,
1885, notwithstanding the clause quoted
from section of said act, pdrporting to
empower the President to make the ap-
pointments during the recess Iof the Sen
ate. That clause conferred no power upon
the President which he Ibid not already
the judges SO appointed,G and, therefore,
does not repeal or modify the provisions OF
section 1861, Revised Statutes, expressly
prohibiting such payments If Congress
intended that the judges should be paid,
Notwithstanding the provisions of section
1861, Revised Statutes, they certainly have
failed to express their intention, and
know of no way to ascertain their inten-
ton except from the language they have
used; and if such were their intention il
seems probable that they would have in
cluded the marshals and district attorneys
ard not restricted payment to the judges.
The controller therefore decides that the
judges, marshals and the district attorneys
cannot be paid until their appointments
have been confirmed by the Senate. The
other officers provided for in the act OF
March /, 1895, not being appointed by the
President by and with the advice and con-
sent of the Senate, but by other officers, to
wit the clerks by the courts; the deputy
clerks by the clerks themselves; the dep
uty f1arshals by the marshals; the com
Dlissioners and constables by the judges
may be paid their salaries monthly, ex-
cept the constables, for whom no appropria
I~