The dullservice law never contemplated

Morfernce with the President's > of removal from office of an officer. Fixing r. Stahl (C. C. 1897), 83 Fed.

wer of the President to dismiss an vr of the Army is discretionary and not pted to cases arising under certain acts His action can not be redtere. The tenure of office of all vrs, +1 xpt those in the judicial departEvet, is dering the pleasure of the Presi⚫mless Congress shall have given some - duration to their office. Gratiot v. 18 (1865), 1 Ct. Cl. 258.

The President may dismiss a military or 1 offer without the concurrence of Serate, McElrath v. U. S. (1876), 12 +11 201

If an order dismissing an officer is not at if efficient, it will become efficient , the officer will be removed) by the 1-esent's appointment of his successor, with the advice and consent of the Senate. K

A statute which provides that the Presite, and he is hereby, authorized to state a veteran officer and to retire him that grade, as of the date he was presy mustered out, confers authority on སྐྱེས Tres dent alone to reinstate the officer at the advice and consent of the Sen

Collins . U. S. (1878), 14 Ct. Cl.

here the President is authorized by w to reinstate a discharged Army officer ** từ do so without the advice and cont of the Senate. Collins r. U. S. 1979), 15 CU CL. 22, reaffirming 14 Ct. Cl.

where the President exercises the diseretan vested in him by an act of Con

of reinstating an officer, and exwas will by an order to that effect, er acquires a vested right to the 11

• fywer to remove is incident to the **** to appoint. Twing v. U. S. (1880), 1 13. The tenure of appointment plotment of the members of the polce not being fixed or limited te they hold at the will of the vested with the power of appoint* may be removed by the authority neident to the power of appoint

tion, and given notice thereof, he can not again restore him to office except by a new appointment in pursuance of a nomination to and confirmation by the Senate. Id.

The President had the power to dismiss a military officer in 1863 under act July 17, 1862, 12 Stat. 596, sec. 17. Montgomery v. U. S. (1884), 19 Ct. Cl. 370.

An officer summarily dismissed by order of the President can not be reinstated by the President's recalling of the dismissal. Id.

Where in the judgment of the President he has done a wrong by putting an officer out of the Army, the only way provided by law to rectify the error is to reappoint him by and with the advice and consent of the Senate. Palen v. U. S. (1884), 19 Ct. Cl. 389.

The constitutional authority in Congress to vest the appointment of inferior officers in the heads of departments implies authority to limit, restrict, and regulate their removal. Perkins . U. S. (1885), 20 Ct. Cl. 438.

The power to appoint includes the power to remove or suspend, unless some provision of law interferes with its free exercise. Howard v. U. S. (1887), 22 Ct. Cl. 305.

When an officer is removed before his term expires and the appointment of his successor is confirmed, the action of the Senate is a ratification of the removal. Parsons v. U. S. (1895), 30 Ct. Cl. 222.

The civil service act does not prescribe a tenure of office, nor does it restrict the Executive in his power of removal. Ruggles c. U. S. (1910), 45 Ct. Cl. 86.

The power of the President to dismiss an officer from the public service, without the consent of the Senate, was affirmed by Congress soon after the adoption of the Constitution, and has since received the sanction of every department of the Government. (1847) 4 Op. Atty. Gen. 603.

In case of appointments and removals by the President, where the removal is not by direct discharge, or an express vacating of the office by an independent fact, but merely by the operation of a new commission or appointment, then the virtue of the old commission ceases only when notice of the new commission is given to the outgoing officer, either by the President, or by the new officer exhibiting his commission to the old, or by other sufficient notification. (1853) 6 Op. Atty. Gen. 87.

The President of the United States possesses constitutional power to dismiss officers of the Army or Navy coextensive with his power to dismiss executive or admin

Istrative officers in the civil service of the Government. (1856) 8 Op. Atty. Gen. 223. Under act Jan. 31, 1823 (3 Stat. 723), the President had power to dismiss a defaulting officer without first giving him notice of the charges reported against him. (1859) 9 Op. Atty. Gen. 313.

Consistently with the spirit and purpose of tenure of office acts Mar. 2, 1867, and Apr. 5, 1869, the President may revoke the suspension of an officer and reinstate him in the functions of his office, after the rejection by the Senate of a nomination to fill his place. (1870) 13 Op. Atty. Gen. 221.

The word "superseded" as used in those acts, imports that the person suspended is still the incumbent of the office, and that the interruption of his performance of its duties is temporary and provisional. Id.

The effect of revoking the suspension is only to restore to his former condition the actual possessor of the office, to whose removal the Senate has given no advice or consent. Id.

Resignation.-That a public office may be vacated by resignation is established by long and familiar practice, and is recog nized by express provision of law. Nor can there be any doubt that a resignation may be effected by the concurrence of the officer and the appointing power; its essential elements are an intent to resign on the one side and an acceptance on the other. It may be either in writing or by parole, expressly or by implication. To perfect a resignation nothing more is necessary than that the proper authority manifest in some way its acceptance of the offer to resign. It then becomes effectual, and operates to relieve the incumbent either immediately or on the day specially fixed according to its terms. An offer to resign is revocable prior to acceptance; after acceptance and before it has taken effect it may be modified, or withdrawn by consent of both parties, but this control extends no further. When a resignation once takes effect the official relations of the incumbent are ipso facto dissolved; he has no longer any right to, or hold upon, the office. (1873) 14 Op. Atty. Gen. 259.

An order of the President suspending an officer, under R. S. 1768, takes effect upon due notice thereof to the officer, unless by the terms of the order it is to take effect at a stated time after notice. Receipt of the order by the officer is due notice. (1875) 15 Op. Atty. Gen. 62.

Where an officer is suspended but continues afterwards to perform the duties of the office (there being no one at the time authorized to enter upon the performance of such duties), his acts are those of an

officer de facto and are valid so far as they concern the interests of the public. Id.

No duty is devolved upon the President to send in nominations to the Senate in place of suspended officers or to fill vacancies unless that body shall continue in session for 30 days. (1877) 15 Op. Atty. Gen. 376.

Where no nomination in place of a suspended officer has been sent in and the Senate adjourns, or, a nomination having been sent in, the Senate adjourns without confirming it, the officer suspended there upon becomes reinstated, but he may be again suspended by the President as before. In the case of a vacant office, under like circumstances, the office would be in abey ance upon the adjournment of the Senate. Id.

The President, in nominating a person to the place of a suspended officer, need not give any reasons for the suspension. Id

Power of the President respecting the suspension of civil officers appointed with the consent of the Senate and his duty in regard to the nomination of persons in the place of suspended officers, and also in regard to the filling of vacancies in civil offices happening during a recess of the Senate, under the provisions of R. S. 1768 and 1769, stated. (1877) 15 Op. Atty. Gen. 376.

Where an officer has been suspended dur ing a recess of the Senate and another person designated to perform his duties, under R. S. 1768, the President may at any time revoke the suspension and thus reinstate the officer. (1877) 15 Op. Atty. Gen. 381.

When Congress vests the appointment of inferior officers in the heads of departments, it may limit the power of removal. Matter of Miller. (Sup. Ct. D. C. 1887), 5 Mackey 507.

It was the purpose of Congress, in the repeal of the tenure-of-office sections of the Revised Statutes 1767-1775, repealed by act of Mar. 3, 1887 (24 Stat. 500), to again concede to the President the power of removal, if taken from him by the original tenure-of-office act, and, by reason of the repeal, to thereby enable him to remove an officer when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office. Parsons v. U. S., 167 U. S. 324. (1853) 6 Op. Atty. Gen. 4; (1868) 12 id. 421; (1875) 15 id. 421; (1897) 4 Comp. Dec. 58; (1898) 4 id. 466, 601, and Blake v. U. S., 103 U. S. 227.

Tenure of office.-The Executive power is continuous without regard to the governing person, and there is no interruption of the authority or renewal of the cre

als of their public ministers on a cange of Presidents. (1855), 7 Op. Atty. - 342.

The power to appoint includes the power to remove, when the Constitution has not of berwise provided, and when the laws of Camerons have not fixed a tenure of office. Laarte Hennen (1839), 13 Pet. 230;

11. Recess appointments.

Parsons v. U. S. (1897), 167 U. S. 324; U. S. v. Avery, Deady 204.

When Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interests. U. S. v. Perkins (1886), 116 U. S. 483.

Failing vacancies in general.-A vacancy erated by a dismissal of an officer in the Army can be filled only by new appointtwat, by and with the advice and consent Senate, unless occurring in the recess ast body, in which case the President may grant a commission to expire at the its next succeeding session. U. S. v. 18×5), 114 r. S. 619, 5 Sup. Ct. 9 L. Ed. 254. Where there is no vacaney to which an an be appointed, it is not a case the President is authorized “to fill up a'i vacancies." Peck v. U. S. (1904), 39 1. 123

In the provision in sec. 3 of tenure of are act Mar. 2, 1867 (which, with the 15 Lizent made by see. 3 of act Apr. 5, 11 reproduced in sec. 1769, R. S.), arthering the President "to fill all vacancee wich may happen during the recess of the Senate by reason of death, etc., by pating commissions which shall expire end of their next session thereafter." must be presumed to have emBy the words of the Constitution used thren, vix, which may happen during The recess of the Senate," in the same sense wa:- they have been accepted and acted sp by the executive branch of the Gov** get_ (1880), 16 Op. Atty. Gen. 523,

fing opinion of Attorney General E art in (168) 12 Op. Atty. Gen. 449. 1. -ng the intention of Congress, as expersed in the sixteenth section of act Feb. 21 (11 Stat. 751), not to require conats of appointments in the grade of in the Quartermaster's Depart te te appointment of Captain A, of fiat department, on June 14, 1901, was recess appointment, the concur of the Senate was not necessary. "be action of the President alone Sw and complete. (1901), 23 Op. Gm. 574. The only vacancy which the scient is authorized to fill under ℗x 16 and 26 of that act is an original varan."J. After such vacancy has been

filled there is no longer an original vacancy in that particular place, and any subsequent vacaney must be filled by promotion or by detail. Id.

The President has the right under the Constitution, and impliedly under R. S. 181, post 172, to make a temporary ap pointment, designation, or assignment of one officer to perform the duties of another in the ease of a vacancy caused by death, disability, or otherwise during the recess of the Senate. (1904) 25 Op. Atty. Gen. 258.

What constitutes recess of Senate.-The recess of the Senate during which the President shall have power to fill a vacancy that may happen means the period after the final adjournment of Congress for the session and before the next session begins while an adjournment during a session of Congress means a merely temporary suspension of business from day to day, or for such brief periods of time as are agreed upon by the joint action of the two Houses. (1901) 23 Op. Atty. Gen. 397; (1901) 23 Op. Atty. Gen. 599.

Holiday adjournment. The President is not authorized to appoint an appraiser at the port of New York during the current holiday adjournment of the Senate, which will have the effect of an appointment made in the recess occurring between two sions of the Senate. (1901) 23 Op. Atty. Gen. 599.

ses

Meaning of the words " may happen."— The phrase "vacancies which may happen during the recess of the Senate," found in this clause of the Constitution, and R. S. sec. 1769, authorizing the President to fill vacancies in office, means "vacancies that may happen to exist during the recess of the Senate." In re Farrow (C. C. 1880), 3 Fed. 112.

The President has power to fill, during a recess of the Senate, by temporary commission, a vacancy that occurred by expiration of commission during a previous session of that body, the term in the Con

stitution "may happen during the recess," being equivalent to "may happen to exist during the recess," without which interpretation it could not be executed in its spirit, reason, and purpose. (1823) 1 Op. Atty. Gen. 631.

The words " may happen," in this clause, mean "may happen to exist." Therefore the President has power whenever and however a vacancy first occurred, whether by death, resignation, etc., or by the creation of a new office by act of Congress, which is an "original vacancy." to fill the place during the recess of the Senate by a temporary appointment under a commission which shall expire at the end of the next session of the Senate. (1907) 26 Op. Atty. Gen. 234.

Time when vacancy occurs in general.— The exercise of the power of the President to fill vacancies during a recess of the Senate is not limited to those which occur during a recess. (1832) 2 Op. Atty. Gen.

525.

The President may fill vacancies that may happen during the recess of the Senate, even though the vacancy shall occur after a session of the Senate shall have intervened. (1841) 3 Op. Atty. Gen. 673.

The President has full and independent power to fill vacancies in the recess of the Senate, without any limitation as to the time when they first occurred. (1866) 12 Op. Atty. Gen. 32; (1875) 14 Op. Atty. Gen. 563; (1884) 18 Op. Atty. Gen. 29. The predicament of a vacancy, which may be filled by a temporary appointment by the President, under the Constitution, is not confined by it to vacancies originating of beginning to exist during the recess of the Senate, but embraces all vacancies that from any casualty happen to exist at a time when the Senate can not be consulted as to filling them. (1868) 12 Op. Atty. Gen. 449.

The President has power to fill, by temporary appointment, in a recess of the Senate, a vacancy then existing which occurred during the next preceding session of that body. (1877) 15 Op. Atty. Gen. 207.

Vacancy happening when Senate is in session. An appointment by the President to an office, during a recess of the Senate, to fill a vacancy happening by the expiration of a term when the Senate was in session, can not constitutionally take effect. District Attorney of United States (D. C. 1868), Fed. Cas., No. 3,924.

In re

If vacancies are known to exist during the session of the Senate, and nominations are not then made to fill them, they can not be filled by the Executive during the subsequent recess. (1845), 4 Op. Atty. Gen. 361.

The construction of this provision in the Constitution, by which this provision is construed to comprehend all vacancies that

may happen to exist in a recess of the Senate, and according to which the Presi dent has authority thereunder to fill, during a recess of the Senate, not only vacancies that have originated in the recess, but also such as originated whilst the Senate was in session, reaffirmed, upon full review of the opinions of former Attorneys General on the same subject, all of which are shown to concur in that construction. (1880) 16 Op. Atty. Gen. 523.

The provision in sec. 3 of tenure of office act Mar. 2, 1867 (14 Stat. 430; also in R. S. 1769), putting "in abeyance" an office "so vacant," etc., if no appointment thereto with the consent of the Senate is made "during such next session of the Senate," does not assume to act upon the power of appointment given to the President by the Constitution. It acts upon the office itself, but does not thus act until the expiration of the next session of the Senate. Hence, in the case of a vacancy which has originated during a session of the Senate, the office can not be affected by that provision until the end of the succeeding session of the Senate; and during the intervening recess of the Senate the President may fill the vacancy by a temporary appointment. Id.

An office which has become vacant during a session of the Senate may be filled during the next ensuing recess of the Senate by a temporary appointment by the President. (1883) 17 Op. Atty. Gen. 521.

A vacancy in an office which happens during a session of the Senate, but remains unfilled until a recess of the Senate occurs, may be filled by the President during such recess by a temporary appointment. (1889) 19 Op. Atty. Gen. 261.

Offices created and taking effect during session. Where a session of Congress passes without the filling of an office which was created and took effect during a previous session of the Senate, the President can not make a valid appointment during a recess of the Senate. Schenck v. Peay (C. C. 1869), Fed. Cas. No. 12,451.

When an office is created by a law taking effect during a session of the Senate, and no nominations are made thereto, the office may be filled by Executive appointment during the recess of the Senate. (1868) 12 Op. Atty. Gen 455; (1884) 18 Op. Atty Gen. 28 (1889) 19 Op. Atty. Gen. 261.

Failure of Senate to act on nomination.Where, under the operation of act of Mar. 2, 1875, and the joint resolution of Mar. 3, 1875 (No. 7), two vacancies existed in the office of paymaster in the Army, with the rank of major, and nominations therefor were sent to the Senate by the President, but which that body failed to confirm before adjourning, held, that it is competent

for the President to fill the two vacancies, dering the recess of the Senate, by temrary appointments, and that he is not jet to any restrictions as to the per ts whom he may thus appoint. (1875) 14 Op Atty. Gen. 563.

Legality of appointment of person whose nomination is afterward rejected. One appted to office when the Senate was not in session, who entered upon the duties of the office and continued to serve until notifed that his nomination had been rejected, rast be deemed to have been legally appeted and entitled to the office. Gould v. U S. (1984), 19 Ct. Cl. 593.

Second temporary appointment.-Where the President made a temporary appointLent of a collector of internal revenue during a recess of the Senate, and no nomination was made during the next regular session, or during an extra session called thereafter, held, that the President, after the adjournment of the extra session, might fill the vacancy by a second temporary ap printment. (1865) 11 Op. Atty. Gen. 179. Expiration of commission.-The commisBon of an officer appointed during a recess, who is afterwards nominated and rejected, is not thereby determined. (1842) 4 Op. Atty. Gen. 30.

The President has the right under the Constitution, and impliedly under R. S. 11, to make a temporary appointment, desiration, or assignment of one officer to rform the duties of another in the case si a vacancy caused by death, disability, or

otherwise, during the recess of the Senate, and such temporary appointment. designation, or assignment is not limited by law to any particular period. (1904) 25 Op. Atty. Gen. 258.

Salary and compensation of appointee.See also post, 16, and notes thereunder.

An office which has become vacant during a session of the Senate may be filled during the next ensuing recess of the Senate by a temporary appointment by the President; but by R. S. 1761, post, 16, payment of the salary of the appointee, in such cases, is postponed until he has been confirmed by the Senate. (1883) 17 Op. Atty. Gen. 521.

The President may send to the Senate for approval of his action the names of officers on the retired list of the Army nominated by him for advancement under act Apr. 23, 1904 (33 Stat. 264), after the adjournment of the last session of Congress, but who died before the convening of the present session; and upon approval by the Senate, the personal representatives of the deceased officers will be entitled to receive the advanced pay due such officers without further action by Congress. (1905) 25 Op. Atty. Gen. 312.

The salary or compensation of a person so appointed can not be paid, 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. R. S. 1761, post, 16; (1907) 26 Op. Atty. Gen. 234.