Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-07-24
APPOINTEES
Controller Bowler Defines Their Status
Regarding Salaries.
EXHAUSTIVE REPORT ON THE QUESTION
The Case of Lieutenant Comman-
der Perkins Considered.
FAV VORABLY DECIDE ED

Judge Bowler, controller of the treasury,
has defined the position of his office with
regard to the payment of the salaries of
officers of the government, civil and mill
tary, appointed by the President during
recess of the Congress to vacancies which
existed while that body was In session. The
question was raised by Paymaster C. w.
Slamm of the navy In the case of Lieut..
Commander Charles P. Perkins of the
navy. His inquiry was whether he was
authorized to pay the officer named the pay
Of his office as it accrued or whether such
payment must be withheld until he has
been confirmed by the Senate.
In his decision this question Con-
troller Bowler says:
1T appears that Lieut.. Commander
George W. Tyler died on February IT, 1895;
that Lieut.. Charles P. Perkins was entitled
by order of seniority to promotion to the
vacancy caused by his death; that by no
fault on his part Lieut.. Perkins was not
examined until June 6, and that the ex-
anintng boards recommendation of Lieut..
Perkins was not approved by the President
until June 1S- Congress adjourned June IL;
thus 1t appears that at no time during the
session of the Senate was there a vacancy
In the office of lieutenant commander, to
I'LL which, under the law, was it possible
for the President to nominate any one to
the Senate for confirmation, for, by section
li9t, Rev. Stat, no officer can be promoted
until he has passed the examination there
In prescribed, nor, by section 1902, until
the recommendation of the examining
board has been approved by the President:
While, by section 1862, such examination
may be delayed in the case of an officer
VINO, because of absence on duty or other
cause not involving fault on his part can
not be examined at the time required by
law or regulation.
The Chief Section Considered,
Section 1861 is as follows:
No money shall be paid from the treas
ury, as salary, to any person appointed
during the recess of the Senate to fill a "a
cancy in any existing office, If the vacancy
existed while the Senate was In session
and was by law required 10 be filed by and
with the advice and consent of the Senate
until such appointee has been confirmed
by the Senate
This section is taken from the last
clause of section 2 of the army appropria-
tion act of February o. 1858 That
section was added to the act in the
Senate by an amendment offered by Mr.
Trunnbull OF Illinois; the first part (now
section 1760) because of the appointment
by President Lincoln of a large number of
brigadier generals over the number of such
officers limited by law. The purpose Of the
second part of the section (now section
1i6D is thus stated by Mr.. Trumbull:
Another Provision.
There Is another provision in the
amendment. The Constitution provides
that the President of the United States
may make temporary appointments to fill
vacancies which occur during the recess of
the Senate. This is to prevent the pay
ment Of any officer who shall be appointed
during the recess of the Senate II the va
c&ncy existed while the Senate was in ses-
SION 1 think that the nominee should then
Sanqta he q c1
by the Senate, and the President thinks
proper not to send In any other nominee
during the session. and he then appoints
person after the Senate has adjourned
that person should not be paid until the
him.
Vacancies have occurred while the
Senate was in session Suppose one existed
now, and that vacancy is not filled up; the
Senate, for reasons satisfactory to itself,
declines to confirm, perhaps, the person
nominated, and the vacancy is not filled up
when the session closes: then, after we ad-
1ourn, an appointment is made to that Of
nee; that person acts an officer, and l
understand, receives pay. A good many
cases occurred at the last session of Con-
greSS. Congressional Globe, S7th Con-
gIess, Sd Session, 1861
MIR. Fessenden of Maine specifically re-
ferred to it as applicable to the case of a
military officer, and as applying to cases
where no action was taken by the Senate
as we'll as to cases where nominations had
been rejected 1t appears, however, to
have been generally ignored as to appoint
ments in the army and navy, and no doubt
In many cases under the civil branch of
the government.
No Record Can be Found.
"a careful examination of the records Of
the office of the second controller fails to
show any ruling of that office upon the
subject. and inquiry of the judge advocate
general OF the army and of the navy shows
that 1t never was considered by either OF
those officers, and is conceded by both to
apply to officers of the army and navy, as
well as to those in civil life. That it does
so apply seems clear. not only from the
language of the section, which is general
In character. but also from the specific
reference in the first part Of the original
enactment to AN officer, civil military or
naval and from the act to which it was
appended, as well as from the statements
made In the Senate a. the time of It's en-
actment- See also II Opin. A. G., 153 where
1t is assumed as of course that 1t applies
to the army.
The Purpose of the Law.
THE manifest purpose of the section, as
shown by the statements of its author was
TO prevent payment to any officer who was
appointed during the recess Of the Senate
TO fill vacancy existing during the session
of the Senate which could have been filed
in pursuance of a previous nomination to
and confirmation by the Senate. the object
evidently being to compel the President to
nominate during the session of the Senate
persons acceptable to the Senate, and to
preclude payment in such cases to others
appointed after the adjournment of the
Senate until the Senate had an opportu-
nifty to act upon them.
MIR. Perkins May he Paid.
While technically a vacancy In the Of
flee of lieutenant commander did In fact
exist during the session of the Sonata
which has in fact been filled by the Presi-
dent In the recess of the Senate by the ap-
pointment of a person who has not We.
been confirmed by the Senate, thus bring
Ing the case of Mr.. Perkins within the
strict letter of the section, yet am clearly
of the opinion that no vacancy existed
while the Senate was in session within the
meaning of the section, for the evident
meaning Is that there shall be a vacancy
capable by law of being filed during the
session of the Senate, and. for the reasons
above stated, 1t was not possible for the
President under the law. to nominate any
one tc the Senate during its last session
Ihat the purpose of the section, rather
than Its strict letter, should be followed
(See Comp, Dec, aO7)
For these reasons I am of tho or;nion