Evening star. [volume] (Washington, D.C.) 1854-1972, 1899-05-10
Controller Traeewell's Decision on
Recess Appointments.
DEFINING PRESIDENTIAL AUTHORITY
Views of Jurists on When Vacan-
cies Occur.



ell that Judge II. G. Ewart of North Caro-
into a long and interesting historical re-
view Of the Presidents right to make re-
cess appointments. The question as to
Judge Ewart's pay was submitted by Henry
Rechtin, disbursing clerk of the Depart
ment of Justice. In the following communi-
cation:
During the last session of the Senate
Hamilton Cover Ewart served as district
judge for the western district of North
Carolina under recess appointment issued
July II. 1898 On December Is, 1888, the
President sent to the Senate Mr.. Ewart's
nomination to the same position, but no
action was taken thereon by the Senate
On April Il. 1899. the President issued to
Mr.. Ewart another recess appointment,
under which Mr.. Ewart has qualified.
Il nave the honor to ask whether L am
authorized to pay MIR. Ewart's salary from
the date Of his qualification under this
last recess appointment
Judge Ewart's Case Stated.
Controller Tracewell says that the follow
ing facts pertinent to the question sub
mitted:
"On the Eth day Of January, 1898 Judge
Dick of the western district of North Caro-
lima rendered his resignation to take effect
upon the appointment and qualification of
his successor. On the 18th day of January
1898. the name of Hamilton G. Ewart the
present incumbent, was sent to the Senate
by the President. Judge Dick continued to
act as Judge until and including the 18th
day of July. 1898. On the 18th day of July
lS9S. the Senate having finally adjourned
the said Hamilton 6. Ewart received a re-
cess appointment from the President, under
which he qualified and entered upon the
discharge OF his duties as such Judge on
the 18th day OF July, 1898.
This commission rected that it would
expire at the end Of the next session of
Congress. viz: March T. 1890 On the 18th
day of December. 1895 Mr. Ewart's name
was again sent to the Senate, but Congress
finally adjourned for the session on the 9TH
day of March, 1879, without action taken
thereon
1T will be seen that Mr. Ewart is now
holding the Office under the second recess
appointment given him by the President on
April II last.
The question as to the right of Judge
Ewart TO be paid his salary under his first
temporary appointment was submitted to
the controller, and determined favorably to
Judge Ewart on September 10, 1898
1T was then held that the vacancy In the
office of district judge did not occur until
after the adjournment of the Senate, and
the case as then presented was not consd-
cred as being governed by section 1861 of
the Revised Statutes. which provides:
No money shall be paid from the treas
ury salary to any person appointed dur
ing the recess of the Senate to fill a va
CanCy in any existing 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 appointee has been confirmed by
the Senate
THAT decision upon the point as to when
the vacancy happened is fully supported by
an opinion of Attorney General Eyarts, re-
ported in the case OF Gilpin agt. O'Neale.
h,4n tit,rr hon tod TO he
authority OF the President to fill a judicial
office of this character by a temporary ap-
pOintment which by necessity, must ex-
plre at the end of the next session of the
Senate and not by an appointment to hold
the office during good behavior, Is provided
by the Constitution.
The same question is as properly sug
gest.d in the present case. l deem it. how
ever, sufficient to repeat in this connection
" hat | said that subject in the former
decision. | will assume that the action of
the President and of the Senate in respect
to appointments of this character for more
than one hundred years is in accord with
the require ments OF the Constitution. In
this assumption l am supported by the
opinions of many different Attorneys Gen
eral.
Ward. decided by the Supreme Court on
March 20 last, it was contended that the
President could not, during a recess of the
Senate. and without its concurrence by
any portion OF the judicial power of the
United States government as defined in ar
uCle ; Of the Constitution. because the ar
ticle requires that judges of the United
States courts shall hold their offices during
good behavior. and hence that no person
can be appointed to such Office for less
period and authorized to exercise any por-
ton of the Judicial power of the United
States as therein defined
The court for reasons set out In that de-
cision did not express any opinion or render
any decision upon this contention. A foot
note 10 this decision by the reporter is rot
without interest to the student of legal and
constitutional history, and fully shows that
my assumption of the practical construc-
ton given this article Of the Constitution Is
correct: and with this practical construc-
ton To guide me ] shall deem it my duty to
follow the path so blaZed out until the
courts shall decide appointments of this
character to be void 1 attach this note of
the reporter as note to this decision.
Authority of the President,
The authority OF the President to make
these temporary appointments, and his only
authority. in far l am aware Is found
in article 5, section .. subsection 3, of the
Constitution, which reads:
IS The President shall have power to fill
up all vacancies that may happen during
the recess OF the Senate, by granting COM
missions which shall expire at the end of
their next session
1T is unnecessary in this connection to
consider what might have been the euect
of sections 1853 and 1869 part of the tenure
of Office act. upon the last appointment of
Judge Ewart, for the reason that these sec
tons We're IN terms repealed by the act of
March 3 1897 GA Stat, 800 chapter 1881.
The controlling questions for considera-
ton are. whether a vacancy existed in the
office of the district judge for the western
district of North Carolina on April b. 1890;
when the President issued to Mr.. Ewart his
last recess appointment, and if a vacancy
did so exist, when did such vacancy hap
pen?
The first vacancy in this office undoubt-
eddy happened when the resignation of
Judge Dick became effective; in other
words. when 1t became operative, viz. on
the day when his successor qualified being
the 10th day of July. 1898 This was in the
recess of the Senate. There was then a
vacancy in the Office of district judge on
the 18th day of July. 1898.
Judge Eyart at this date qualified and
entered upon the duties as judge under the
recess appointment given him by the Presi-
dent on the 18th day of July, 1898 by and
under which he was to serve such judge
until the expiration of the next session of
Congress, viz: Until the 4th day of March,
1899. On the 31st day of January preceding