The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-04-27
PenPoSe in Behalf
OF Colonel Quay


Attorney General fancy sustained the right oil
the president to appoint to fill a vacancy which
had Happened during a session Of the senate
but "existed" after il had adjourned. In that
case it was held to be the intention Of the
constitution that Offices created by law, and
which are necessary to the operations of a gov.
ernment, should always he full, and that when
vacancies "happen" they shall not be protracted
beyond the time necessary for the president to
fill them
In the administration OF President Tyler in
1871 the question was again raised, and Attor-
ncy.General Legare took the same view Of the
constitution in this connection his predecessors
It is interesting, however, to note that he even
advanced step further, and advised that the
president has the right to make an appointment
TO hl vacancy which existed after session
of congress ntcivened to which a nomination
could have been made.
Attorney General Mason advised President Polk,
in 1916, to the same effect in the following
words
even though the vacancy occurred before the
session of the senate, il that body, during its
session, neglected to confirm a nomination to
I'LL it, the president may ill it by temporary
appointment; and public considerations seem to
require him to do So" Opinions of Attorneys
General, volume (, page j23.)
Thus not only is the president declared to
have the power, but it is declared to be his duty,
from public considerations, TO see that the rub
lie offices are kept filed.
The same question was raised by President
Lincoln, with his attorney general, in 1862, on
the question of his power to I'll a vacancy on
the bench of the supreme court during a recess
Of the senate, which vacancy existed during and
before the last session OF the senate, and the
right of the president to fill such vacancy on the
bench of the Supreme court was sustained by
Atorney.General Bate. Opinions of Attorneys
General, volume 10, page 3j7)
Again, in the case of Peter McGough, ap.
pointed by President Lincoln collector of in
tcrnal revenue for the Twentieth. district Of
Pennsylvania, it was declared by the attorney
general that where the president made a TEN.
porary appointment OF collector of internal
revenue during a recess of the senate aud no
nomination made during the next regular
session, or during extra session called there
after. that the president, after the adjournment
of the extra session, might fill the vacancy by
second temporary appointment. (Opinoins Of
Mtomeys-General volume ., page l79)
Thus the power of the executive advanced
another step, and it was the opinion of the at.
torncy general that he could make a second ap.
pontment even after the lapse of two sessions Of
the senate, to neither Of which the nomination
had ever been sent On the same rrlnciple the
power of governor of state to appoint a sen.
ator is ineXhaustitlc. 1t has been argued that
One important distinction is 10 he borne in
n"Iu however AS SCI lorth by Attorney -6ei''
Prai ntahberrN' IN leco' distinction is made he
tween temporary appointment by the president,
without the consent OF the senate ana an ap'
Poih'nieht l"r lull term, naue WIN the con
sent o1 the senate similar distinction obtains
between the appointment by an executive to fll a
vacancy in the United States senate, in which
the governor does not give full title to the of.
flee, but makes only temporary appointment
uhtil the legislature can make an election. The
following Is the language OF the attorney-general
IN thls connection:
- say by the temporary appointment Of the
president; Tor, in strict language. 'he president
cannot invest any officer with iull title to the
once without the concurrence OF the senate.
whether the president appoints in the session OF
IN the recess he cannot and does not fill the Of
nee without the concurrence OF the senate. lie
may fill the vacancy IN the recess, but only by
an appointment which lasts Until the end of the
E'Nt session Opinions Of Attorneys. General,
volume II, page ll)
similar constructions have been adopted b,
succeeding attorncySGcncral; by Attorney Gen
clal Williams, in l715; by Attornoy-General Dcv
ems IN 49, ana by the same encouragement
in 1850, when he advised the secretary of the
treasury on the question, raised by III appoint
menC ot John +. liartrartt as collector OF the
port at Philadelphia; by Attorney General Brew
scr in 1883 and hy Attorney General Miller, in
lsSo, who advised President Harrison that the
rule is the same as to the power Of the prcsi
dent 10 MI a vacancy in the of an office ere
atcd hut not filled during the session Of tho ser
ate which had adjourned.
,,u,>rIc or ,,u,nnr,..,
''''" VI ''" IA
II VIII be observed ina; the word happen
IN an OF the 'llnl"nS ana eases above cited was
construed to be used in the sense of "happen'
TO exist and 1t was held to apply to all kinds
OF vacancies whether the vacancy happened Oh
occurred by DEATH resignation, removal the be-
ginning oi the term ot new office, where nc
incumbent had either been elected appointed