Year: 1868

the advice and consent OF the Senate, is familiar
one, and though not unfrequenty the supJecl OF
consideration In one form and another by my learned
predecessors in the ONCE OF Attorney General tne
result OF their deliberations has been UNIFORM anu
has furnished the guide upon which the
practice OF the Executive has been equally
uniform. The constitution says:-"The President
shall have power to I'LL up all vacancies
that may happen during the recess OF the Senate Dy
granting commissions which shall expire at the end
gested upon the construction Of this clause OF the
constitution has relation to the true Interpretation
the senate.S The The subject was fully discussed by
Mr.. Writ In the year 1923, and no view or argument
mat could shed light upon coFrec' 9ecsUn %as a.
the conclusion that the vacancy in ofice, which
might be filled by the President under this clause OF
the constitution, was not confined by 1t to vacan-
ces originating beginning to exist during the re.
OF the Senate, but embraces all vacancies that
the Senate cannot be consulted as to nlling them.
1t Is upon this Interpretation alone thar,
In Mr.. Wirt,s Judgment the the, whole prppos purpose
e Opinions, $685. The considerations which support
and enforce this as the necessary and proper con-
struction Of the constitution are so fully stated in
Mr.. Wirts opinion and IN the opinions Of his sue
cessors-Attorney Generals Taney, Legare and
Mason-and In the more recent review OF the whole
subject presented in Mr.. Stanbery's opinion OF
August so, 1866, addressed to the Postmaster Gene
ral that deem unnecessary TO do more than refer
you to those learned constitutional disqusitions.
Upon such an established constitutional doctrine it
Is hardly useful to express an opinion as upon an
original question. i nave, however, upon m0tlVeB
OF renewed interest in the whole subject OF eXecu-
tive authority in appointments to Ofce eXerted by
recent legislation Of Congress- attempted to weigh
anew the opposing Interpretation OF this clause or
the constitution and the arguments affecting just
conclusion upon the question: and cannot but give
my concurrence to the views Of my learned prede-
cessors, to whom have referred


Iproceed now to examine the recent legislation OF
Congress, known as the Tenure Of Civil ONCE act, as
act which is applied to the regulation OF Executive
authority in the filling of admitted vacancies In olce
the President shall have power to fill all vacancies
which may happen during the recess OF the Senate by
reason OF death or resignation, by granting commits
sions which shall expire at the end OF the next ses-
sion thereafter, and II no appointment by and with
the advice and consent OF the Senate shall be made
to such Office so vacant, or temporarily filled as
aforesaid during such next session Of the Senate,
such office shall remain in allegiance, without any
salary, fees or emouments attached thereto, until
the same shall be filed by appointment thereto
by and with the advice and consent Of the
Senate, and during such time all the powers and
such other officer as may by law exercise such
powers and duties in case Of vacancy in such office"
The first clause OF this section OF the act repeats the
language OF the clause Of the constitution which l
have cited, and does not attempt any legislative in
depreciation Of the phrase (which may happen
from the constitution upon the text Of the act.
Therefore it is impossible to argue that the repeti
ton Of the words Of the constitution puts or pur-
ports to put any Interpretation upon them. They
simply adopted by the act In their true consitu
tionai sense whatever that sense may be. But when
we consider the general knowledge which all per-
sons having a responsible connection with the con-
duct Of affairs, as well as all legal and political
students had of the uniform Interpretation OF these
words of the constitution, which had been accepted
and acted upon by the executive branch OF the
government, 1t Is conclusive presumption that
Congress accepted the words OF the constitution
in its adoption Of them into legislation affect
ing the exercise OF executive authority In the
same sense In which they had been accepted and
acted upon by the executive branch of the govern
ment. This being 3d. 1t will be observed that in the
case of the vacancy under consideration arising



enactment OF this third section which, In terms or
by any implication, aect5 or purports to AFFECT the
Presidents authority in lilling the olce unless aud
until 1t shall have fallen into the predicamcnt Of
"abeyance" described in the section. This condi-
ton of ''abeyance Is limited to arise upon the ex-
praton OF the next session OF the Senate" without
the Office having been filed .'by and with the advice
and consent OF the Senate" This predicament OF


abeyance,r in its application to the office made va
cant by Mr.. Kelogg's resignation, can only arise
by the expiration of the next session OF
the Senate, without that body's having concurred
in full appointment to 1t. II that event
should occur, then the operative enactment of the
Collector Of New Orleans would be- for the time OBJ
liberated from the public service; but until then
cannot perceive that the power of the President to


Is affected by the provisions OF this act. am, there
fore, Of opinion that upon the well considered and
long continued Interpretation OF this clause OF the
constitution the President has power to Oil the va
cancy in the office OF Collector at New Orleans by
granting commission that shall expire al the end


Of the next session Of the Senate, and that the
Tenure Civil ONCE act does not In terms nor In


intent nor In legislative construction OF this clause


OF the constitution affect this power ofhe President
in the case submitted for my opinion. The disposi.
tion have made OF the principle inquiry addressed
to doubtless supersedes the need OF adente con-
sideration OF the alternative advice which am ask
ed for to the possible modes OF keeping open the
port OF New Orleans and collecting the customs
revenue there, in case the President had not the
power OF appointing q Collector. have however,
looked at those questions sufficiently to feel that
they involve matters OF much difficulty, and that the
closing OF the mouth Of the Mississippi to foreign
commerce. and the transfer OF That commerce to the
Atlantic ports, would be occurrence Of astound
ing influence upon vast interests l am happy to
find no embarrassments as to the regular Offlcal
administration Of the collection OF the revenue OF
New Orleans from the effect OF executive power in
the premises.


With great respect have the honor to be your
obedent servant,


VIM. N. EvARTs, Attorney General.