The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. U. S. v. Hartwell, 6 Wall. 385, 394; U. S. v. Maurice, 2 Brockenbrough 103.

A public officer is the incumbent of an office "who exercises continuously, and as a part of the regular and permanent administration of the Government, its public powers, trusts, and duties." Sheboygan Co.

v. Parker, 3 Wall. 93, 96.

Unless a person in the service of the Government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States. Mouat, 124 U. S. 303, 307; U. S. v. Germaine, 99 U. S. 508, 510; U. S. v. Hendee, 124 U. S. 309; U. S. v. Smith, 124 U. S. 525.

U. S. v.

Appointment of officers in general.-The general rule deducible from this clause is that the appointment to any office of the United States established by Congress must be made by the President, with the concurrence of the Senate, unless it is otherwise provided in the Constitution or by legislative enactment. Scully v. U. S. (C. C. 1910), 193 Fed. 185; (1853) 6 Op. Atty. Gen. 1; (1875) 15 Op. Atty. Gen. 3; (1878) 15 Op. Atty. Gen. 449; (1883) 17 Op. Atty. Gen. 532; (1908) 26 Op. Atty. Gen. 627.

The nomination to an office by the President, confirmation by the Senate, signature of a commission, and affixing to it the seal of the United States were all the acts neces sary to render the appointment complete. U. S. v. Le Baron (1856), 19 How. 73, 78, 15 L. Ed. 525.

The officers of the United States are divided into two classes: First, those whom the President shall nominate, and by and with the advice and consent of the Senate appoint; and, second, inferior officers established by law whose appointment may be vested in the President alone, in the courts of law or in the heads of departments. Scully v. U. S. (C. C. 1910), 193 Fed. 185.

The appointing power, by antedating the appointment or commission of a public officer, can not create a liability on the part of the Government, but the legislative branch of the Government can. Collins v. U. S. (1879), 15 Ct. Cl. 22.

An appointment by the President does not take effect until the date of the Senate's confirmation; and though the officer enter immediately upon the duties of his office he can not be regarded as an officer de jure during the interval, and will not be

entitled to the salary of the office prior to confirmation. Bennett v. U. S. (1884), 19

Ct. Cl. 379.

Neither the President alone nor the President and Senate can give a retroactive effect to an appointment so as to entitle an officer to the emoluments of his office prior to the time of his actual appointment, except where expressly authorized by statute. Id.

The Senate can not originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the President's nominations; and such nominations fail whenever it disagrees with them. (1837) 8 Op. Atty. Gen. 189.

The Senate may suggest conditions and limitations to the President, but can not vary those submitted by him; for no appointment can be made except on his nomination, agreed to by the Senate without qualification or alteration. Id.

The nomination for an office to, and the confirmation thereof by, the Senate, do not of themselves confer the office upon the person nominated, as the President may withhold the commission. (1867) 12 Op. Atty. Gen. 304.

The power of appointment conferred by the Constitution is a substantial and not merely a nominal function, and the judgment and will of the constitutional depositary of that power should alone be exercised or have legal operation in filling offices created by law. (1871) 13 Op. Atty. Gen. 516.

The word "employ " is sometimes used in a sense equivalent to "appoint." (1883) 17 Op. Atty. Gen. 504.

The President can appoint to office only those who are eligible under the Constitution. His appointment of one not eligi ble is a nullity. (1895) 21 Op. Atty. Gen. 211.

The nomination and confirmation of a person who, at the time, is ineligible for the office by force of Art. I, sec. 6, can not be made the basis of his appointment to such office after his ineligibility ceases. (1883) 17 Op. Atty. Gen. 522,

When Congress, in pursuance of its authority under this clause sees fit to give the sole power of appointment to the President, it does so by language appropriate to that end, such as the unqualified phrase may appoint" in R. S. 1680; see also post 2642; sec. 19, act May 28, 1896; act Mar. 3, 1897; and, on the other hand, when Congress means the appointment to an office established by law to be made by Senate the intention to that effect is specifically shown by the language used. Act June 11, 1878, sec. 2; act June 4, 1897, 30 Stat. 58; act Apr. 12, 1900, secs. 17, 18,

34, 40; act Apr. 30, 1900, secs. 66, 69, 80,

(1900), 23 Op. Atty. Gen. 138. Establishment of offices by law. Under this and the following clause it was held that all offices under the Federal Government must be established by law, except where the Constitution itself otherwise proValet, U. 8. v. Maurice (C. C. 1823), Fed. Cas No. 15,747.

An agent of fortifications is an officer of the United States, whose office is estabEshed by law. Id.

Encroachment on appointive power by Congress or the judiciary. It was not the pritpose of see, 5 of act July 13, 1866 (12 Stat. 92), post, 2446, to withdraw the power, with the advice and consent of the Senate, to supersede an officer in the military or naval service, by appointing anetter in his place. Blake v. U. S. (1880), 165 1. 8. 227, 236, 26 L. Ed. 462.

The act changing the official designation of persons appointed to the Naval Academy was within the power of Congress and was Lot an assumption of the power of appointment belonging to the Executive. Crenthw c. U. S. (1890), 10 Sup. Ct. 431, 434, 214 U. S. 99, 33 L. Ed. 825.

Art Sept. 27, 1890 (26 Stat. 492), authorizing the establishment of a public park is the District of Columbia, provided that The Chief of Engineers of the United States Army, and the engineer commissioner of the Istrict of Columbia, with three citizens apointed by the President, should be a park commission. Held, that the act was estitutional, and not an attempt by ConTs to exercise the appointing power,

ce its effect was merely to lay upon the two engineers, being officers already apposted, new duties germane to their offices. shoemaker v. U. S. (1893), 147 U. S. 282, 13 Hap. Ct. 861, 37 L. Ed. 170.

The clause vesting the appointing power In the executive branch of the Government prudes an exercise of such power by Cogress. Wood v. U. S. (1879), 15 Ct. Cl. 11

ngress may retire an officer from active service and place him on the retired list upon a rank different from that which atthes to his office by general laws, and y change the mere rank of an officer on the active or retired list at pleasure witheat coming in conflict with the Constituta I-L

lich nutne exceptions Congress may at #y time reduce the salaries of public offCUTE The only contract which arises from a s'atute establishing a salary is to pay the trumbent thas salary while that law Ps in force. Fisher v. U. S. (1879), 15 01 CL-823.

The right of Congress to prescribe quali frata for office is limited by the necessity

of leaving scope for the judgment and will of the person or body in whom the Constitution vests the power of appointment. (1871) 13 Op. Atty. Gen. 516.

The powers of Congress to "declare war," "raise and support armies," "make rules for the government and regulation of the land and naval forces," and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" do not include, by impl1cation, a power to designate by law a person to fill a military office, since this would be in direct conflict with the power of appointment expressly given the President. (1884) 18 Op. Atty. Gen. 18, 26, 27.

The appointing power of the President rests in his discretion, and his exercise thereof is not reviewable, so long as it conforms to the limitations imposed by law. U. S. v. Newman (1914), 42 App. D. C. 78.

Power of Congress to require exercise of power. Congress can not assume the power to require the President and the Senate to exercise their appointing power. (1884) 18 Op. Atty. Gen. 18, 23.

A bill which imposes, or attempts to impose, upon the President, a duty to appoint a person designated therein, is without any support in the Constitution. It is an assumption of an implied power which is not based upon any express power, and clearly invades the constitutional rights of the President. (1884) 18 Op. Atty. Gen. 18, 27.

Appointments by heads of departments in general. The appointing power provided for by the latter part of this clause is intended to be exercised by the department of the Government to which the officer to be appointed most appropriately belongs. In re Hennen (1839), 13 Pet. 230, 257, 10 L. Ed. 138.

Under this clause all its officers must be appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a department, and as there is no statute authorizing the Secretary of the Navy to appoint a paymaster's clerk, nor any act requiring his approval of such appointment, and the regu lations of the Navy not requiring any such appointment or approval for the holding of that position, the appointment did not make one so appointed an officer of the United States. U. S. r. Mouat (1888), 8 Sup. Ct. 505, 506, 124 U. S. 303, 31 L. Ed. 463.

Appointments to office can be made by the heads of departments of the United States Government in those cases only in which Congress has authorized it by law; and therefore the appointment of an agent of fortifications by the Secretary of War, there being no act of Congress conferring

that power on that officer, is irregular. U. S. v. Maurice (C. C. 1823), Fed. Cas. No. 15,747.

The heads of departments have no constitutional prerogative of appointment, and, their power being derived from legislation, must be governed thereby. Perkins v. U. S. (1885), 20 Ct. Cl. 438.

A clerk appointed pursuant to an act of Congress by an assistant treasurer with the approbation of the Secretary of the Treasury was appointed by the head of a department within the meaning of this clause. U. S. v. Hartwell (1867), 6 Wall. 385, 393, 18 L. Ed. 830.

The head of a department has no constitutional prerogative of appointment to of fices independently of the legislation of Congress. Matter of Miller (Sup. Ct. D. C. 1887), 5 Mackey 507.

Distinction between appointment and nom. ination. There is no distinction between an appointment and a nomination other than the fact that the President nominates for appointment when the Senate is in sèssion, and appoints when he fills a vacancy temporarily during the recess of the Senate. (1901) 23 Op. Atty. Gen. 599.

Who are "officers of the United States " in general. A mere clerk in a public office is not an officer of the United States. U. S. v. Smith (1888), 8 Sup. Ct. 595, 597, 124 U. S. 525, 31 L. Ed. 534; U. S. v. Haas (D. C. 1906), 167 Fed. 211; Melcher v. City of Boston (1845), 50 Mass. (9 Metc.) 73.

Where one is appointed under authority of law by the head of a department, and his duties are continuing and permanent, and his emolument fixed, he is an officer of the United States. U. S. v. McCrory (1899), 91 Fed. 295, 296, 33 C. C. A. 515. Under this clause an "officer of the United States," within Pen. Code, sec. 117, post, 439, punishing bribery, is one who is either appointed by the President by and with the advice and consent of the Senate, or by the President alone, the courts of law, or heads of some executive department of the Government. U. S. v. Van Wert (D. C. 1912), 195 Fed. 974; Same v. Brents, Id. 980.

The word "officer" is frequently used in a broader sense than that indicated by the constitutional method of appointment. Hendee v. U. S. (1887), 22 Ct. Cl. 134.

Whether a person is an officer or not depends upon the nature of his employment, and not upon the terms used in conferring it. (1883) 17 Op. Atty. Gen. 504.

If the employment is one that embraces the ideas of tenure, duration, emoluments, and duties, which latter are continuing and permanent, not occasional or tempo

rary, it contains all the essential elements of an office. Id.

Permanent agents.-A permanent agent is one appointed by the President, with the advice and consent of the Senate, in contradistinction to one specially appointed by the head of a department, for some particular service, and on terms agreed on. Armstrong v. U. S. (D. C. 1833), Fed. Cas. No. 548.

Army and Navy officers.-The ofice of a captain in the Army who has placed his blank resignation in the hands of his superior with authority upon certain conditions to fill it out and forward it for acceptance became vacant upon the officer's receipt of notice that his resignation had been accepted by the President. Mimmack v. U. S. (1878), 97 U. S. 426, 437, 24 L. Ed. 1067.

Where the President's acceptance of the resignation of an Army captain vacated his office, the President's subsequent revocation of his acceptance did not restore the officer to military service. Id.

An appointment, with the advice of the Senate, to a post chaplaincy in the Army was held to operate, proprio vigore, to discharge the incumbent from the service, and invest the appointee with the rights and privileges belonging to the office. Blake v. U. S. (1880), 103 U. S. 227, 230, 26 L Ed. 462.

If an officer's connection with the Army be entirely and legally severed, he can enter the Army again only by the appointment of the President by and with the advice and consent of the Senate. Montgomery v. U. S. (1884), 19 Ct. Cl. 370.

Where an order of the Secretary of War directs that an officer in the Army be mustered out, the President has not power to revoke the order and restore the officer. Palen v. U. S. (1884), 19 Ct. Cl. 389.

The right of the President to command armies is different from the power to appoint officers. The power of appointing is not incident to the President as commander in chief, but subject to the consent of the Senate. McBlair v. U. S. (1884), 19 Ct. Cl. 528.

Lieutenants in the Artillery and Marine Corps may be exchanged, with their own assent, where the ranks of other officers will not be interfered with or prejudiced; but such exchanges can be effected only by the action of the appointing power of the President, by and with the advice and consent of the Senate, and will not be made unless the good of the service requires it. (1830) 2 Op. Atty. Gen. 355.

The President and Senate, by nomination and confirmation, may correct the date of military appointments, even after as great a lapse of time as has occurred in the case

of Capt. Twiggs. (1838) 3 Op. Atty. Gen.

Appointment is the election of persons, not now in the Army, as officers of it, or the designation by selection of an officer aady in the Army to a vacancy which is not required by the law or the regulafiers to be filled by promotion according to seniority (1881) 17 Op. Atty. Gen. 197.

Regimental officers of such regiments as may be formed by contributions of companies from two or more States are to be appointed by the President of the United Bates, under the provisions which make I'm Commander in Chief of the Army and Navy, and which authorizes him to ap port all officers of the United States whose appointment is not otherwise provided by law (1898) 22 Op. Atty. Gen., 135.

If a battalion is made up of companies col tributed by two or more States, the ers of the battalion as such must be apposted by the President. (1898) 22 Op. Atty. Gen. 147.

It being the futention of Congress, as expressed in the sixteenth section of act Feb. 21901 (31 Stat. 751), not to require confirmation of appointments in the grade of emprain in the quartermaster's department, the appointment of Capt. A was not a rece es appointment, the concurrence of the Se ate was not necessary, and the action the President alone constituted a final and complete appointment. (1901) 23 Op Atty. Gen. 574.

An officer properly appointed of any grade on the active list may be retired with a rank higher or lower than that which be lors to his office if Congress see tit so to Bit Congress can not appoint to a me and different office without coming in enn fict with the Constitution. Moser v. U S. (1907), 42 Ct. Cl. 86.

The President, by and with the advice atent of the Senate, may, by reappentment and commission, restore the lost rak, treluding seniority, to an officer of

Arvor Navy. (1856), 8 Op. Atty.

pointment in that manner Congress has the power to authorize. Collins v. U. S. (1878), 14 Ct. Cl. 568.

The word "inferior" is not used in the sense of petty or unimportant; it means subordinate or inferior to those officers in whom, respectively, the power of appointment may be vested. Id.

Power of appointment under the United States can not be communicated by act of Congress to persons not named to that end by the Constitution. (1856) 8 Op. Atty. Gen. 41.

Congress may, at its pleasure, distribute the appointment of inferior officers between the President, courts of law, and heads of Departments, or confide the same exclusively to one or more of these depositaries; but it can not constitutionally vest such appointment elsewhere, directly or indirectly. (1871) 13 Op. Atty. Gen. 516.

Accordingly, an act requiring the Presi dent, the courts, and heads of departments to appoint to office the persons designated by an examining board as the fittest would be at variance with the Constitution, inasmuch as it would virtually place the power of appointment in that board.

Id.

But though the result of an examination before such a board can not be made legally conclusive upon the appointing power, against its own judgment and will, yet it may be resorted to in order to inform the conscience of that power. Id.

And notwithstanding that the appointing power alone can designate an individual for an office, still, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications, and require that the designation shall be out of a class of persons ascertained by proper tests to have those qualifications. Id.

Congress may place any restrictions it pleases upon the employment, by officers of the United States, of any kind of servants to assist them in the discharge of their duties. (1907) 26 Op. Atty. Gen. 363.

Powers of officers. All the officers of the Government, from the highest to the lowest, are but agents with delegated powers, and if they act beyond the scope of their | delegated powers their acts do not bind the principal. U. S. v. Maxwell LandGrant Co. (C. C. 1884), 21 Fed. 19; id. (C. C. 1886), 26 Fed. 118.

duty of a public officer. U. S. v. Buchanan (1850), 8 How. 83.

Every public officer is required to perform all duties which are strictly official, although they may be required by laws passed after he comes into office, and may be cumulative upon his original duties, and although his compensation therefor be wholly inadequate. In such case he must look to the bounty of Congress for any additional reward. Andrews v. U. S., 2 Story 202.

An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and prudent man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case, and if he fails and neglects to do so he is culpable. U. S. v. Baldridge (1882), 11 Fed. 552.

Presumptions as to official acts. -The acts of an officer to whom a public duty is assigned, within the sphere of that duty, are prima facie within his power. U. S. v. Arredondo, 6 Pet. 691; U. S. v. Clarke, 8 id. 436, 452; Percheman v. U. S., 7 id. 51; Delassus v. U. S., 9 id. 177, 134; Strother v. Lucas, 12 id. 410, 438; U. S. v. Peralta, 19 How. 343, 347.

When a particular functionary is clothed with the duty of deciding a certain question of fact, his decision, in the absence of fraud, is conclusive. Lynde v. The County (1872), 16 Wall. 6.

He who alleges that an officer intrusted with important duty has violated his instructions must show it. The courts ought to require very full proof that an officer has transcended his powers before they so determine. U. S. v. Peralta, 19 How. 343, 347; Delassus v. U. S. (1835), 9 Pet. 117, 134.

When a public officer is to do any act on proof of certain facts, of the competency and sufficiency of which he is to judge, it is to be presumed, from the doing of the act, that the proof was regularly and satisfactorily made, and its sufficiency is not subject to reexamination. Phil. and Tren. R. R. Co. v. Stimpson (1840), 14 Pet. 448. Suspension, removal, or dismissal, and reappointment or reinstatement. It was not the intention of the Constitution that inferior officers should be held for life. The power of removal is an incident to the power of appointment. In re Hennen (1839), 13 Pet. 230, 257, 10 L. Ed. 138.

An officer of Volunteers in the Army, dismissed from the service during the recent Civil War by order of the President, could not be restored to his position merely by a subsequent revocation of that order. U. S. v. Corson (1885), 114 U. S. 619.

A vacancy created by the dismissal of an officer in the Army can only be filled by new appointment by and with the advice and consent of the Senate unless occurring during a recess of that body, in which case the President may grant a commission to expire at the end of its next succeeding session. Id.

The President has power by and with the advice and consent of the Senate to displace an officer in the Army or Navy by the appointment of another officer in his place, and, when that has been done, he can not again become an officer except upon a new appointment. Quackenbush v. U. S. (1900), 177 U. S. 20, 25, 20 Sup. Ct. 530, 44 L. Ed. 654.

Where a civil service employee was discharged from the Department of the Interior because of inefficient rating, the courts of the United States could not supervise the action of the head of the department in discharging him. Keim v. U. S. (1900), 177 U. S. 290, 293, 20 Sup. Ct. 574, 44 L. Ed. 774, affirming (1898), 33 Ct. Cl. 174.

In the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove any officer, even though appointed by and with the advice and consent of the Senate, and to take away such power of removal would require very clear and explicit language. Shurtleff v. U. S. (1903), 23 Sup. Ct. 535, 536, 189 U. S. 311, 47 L. Ed. 828.

The power to remove an Army officer vests in the power to appoint, and this power is a discretionary one which can not be questioned by the courts. Ex parte Schaumburg (C. C. 1846), Fed. Cas. No. 12,441.

When an appointee has received a commission from the. President, takes the oath of office, and gives the requisite bond, the incumbent is superseded, and his removal is complete. U. S. v. Bank of Arkansas (C. C. 1846), Fed. Cas. No. 14,515.

Where the appointing power is the President and Senate, acting concurrently, the President alone has not the power of removal, in the absence of legislation and precedent to the contrary. U. S. v. Avery (C. C. 1867), Fed. Cas. No. 14,481.

Though the power to regulate removals from office belongs to Congress, that body having for three-fourths of a century practically conceded the authority to the President to make removals without the advice of the Senate, the court will not deny the President such authority. Id.

The power of removal of an officer is incident to the power of appointment where no definite tenure of office is fixed by law. In re Eaves (C. C. 1887), 30 Fed. 21.