The times. [volume] (Richmond, Va.) 1890-1903, 1899-05-11
JUDGE EWART CAN
DRAW HISSALARY
Comptroller TraceweII Gives Lengthy
Decision in His Favor.
THE MAIN POINT AT ISSUE
Was Whether Vacancy Existed in the
Office when the President Made
the Last Recess Appointment.
Labor-saying Machinery.

WASHINGTON. May 10 Special.-The
case of Judge Hamilton C. Ewart, OF the
Western District Of North Carolina which
figured -o largely in the executive ses-
siols of tha Senate toward the close of the
last s.ou. vas tha subject OF n lengthy
decision by Comptroiler-or-the-T
TuceW.u To-day Tie matter was
brought up by the disbursing clerk Of the
Department of Justice. who asked for
900 opinion a5 TO The right to- pay the
salary of Judge Ewart under the last re-
cess appointment dated April 3D. 1899 UNI
der which Doe is now acting. The Comp
rol,r decided in favor OF Judge Ewart.
The decision recites tho history OF the
case, which is briefly as follows:
HISTORY OF THE CASE.
on January T., 1898, Judge Dick resign
Ell as Judge OF the Western District of
North Carolina, 10 take effect when his
successor qualified, and on January ID.
ls,s. tAe President sent the name Of Ham,
N.ou O.. Ewart 90 the Senate as his sue
cessor. Judge Dick continued To- act as
Judge until july d., 1895. on July u. 1898
the Senate having finally adjourned, Mr.
Ewart received recess appointment and
ente.ed upon the dschaiga OK his duties
ON July iC lNs This commission eX-
pirel March 4. 1892. ON December 18th
Judge EWarrs name was again sent 10
the Senate. but Congress took no action
thereon. 50 chat Judge Ewart now holds
his office under the second recess APP
pointmenr Of April 18th last
THE FIRST DECISION.
The question as % the right of Judge
Dwarf 20 be paid his salary under the
first temporary appointment was decided
favOrably 20 Judge Ewart on September
j. 1s9s it was held that the vacancy
IN the Office Of district judge did not oc-
cur until after the adjournment Of the
Senate and the case as then presented
was not considered as being governed boy
section 1851 OF the Revised statutes
which provides:
NO money shall be paid from the
Treasury as salary 10 any person appoint
ed during the recess Of the Senate 10 fll
a vacancy in any existing Office II the
vacancy existed while the Senate was
in session and was by Law required 20 Do
filed by and with the advice and consent
OF the Senate. until such appolntee has
been confirmed BY the Senate"
THE CRUCIAL QUESTION.
The comptroller finds the controlling
questions for consideration, whether a
vacancy existed ia the Office April %. ls99
when the President made the last re-
cess appointment Of Judge Ewart. and
II 50 when the vacancy happened. The
first vacancy. he says undoubtedly hap
7ened when Judge Dicks resignation be-
came effective that IS July l6. lsss, when
Judge Ewart qualified and which was In
he recess Of the Senate. The recess ap-
,olntment Of July 70, 1885 expired on
March 4, 1899. Notwithstanding the fact
hat the President had In thesmeantime
tent in Judge Ewart's name for perma-
lent appointment on which the Senate
adjourned without action.
The vital question IS the comptroller
avs. was there a vacancy In the Office
IN Aprll 18th. last. when the President
rave to Judge Ewart the recess appoint
merit under which he Is now acting as
Judge? lie then adds:
There was vacancy in the office OF
district Judge on the 18th Of April last.
-hls vacancy evidently and OF necessity
happened after the close OF the session
Z the Senate and section I'll Is not apr