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the other hand, Congress itself designates the person or persons who are to appoint to a given office created by it, there the power and the duty of appointment comes imediately from Congress, and only mediately from the Constitution" (30 Op. Atty, Gen. 177, 179 June, 23, 1913.1

"I entertain no doubt that the power of appointment of officers, the duty to appoint whom devolves directly on the President and Senate by virtue of the Constitution itself, is one involving a discretion not to be entirely controlled by Congress. This power is from a source above Congress, namely, the Constitution, and can not be destroyed by the inferior power. 1, (30 Op. Atty. Gen., supra, at 179, June 23, 1913. See also: 13 Op. Atty. Gen. 516, Aug. 31, 1871; 18 Op. Atty. Gen. 18, June 23, 1884; 31 Op. Atty. Gen. 80, Dec. 27, 1916; 33 Op. Atty. Gen. 438, Feb. 27, 1923; Messages and Papers of the Presidents, vol. 5, pp. 597-599; Annual Report of the Secretary of the Navy for the year 1884, pp. 42-43; File 26 509-539:2, July 7, 1926.)

"Nor does the fact that Congress is given power by the Constitution 'to make Rules for the Government and Regulation of the land and naval Forces' enable it to control the President's discretion in respect of those appointments which the same supreme Law requires him to make. The general power to reglate such forces can not be taken to nullify the #pecific mandate to the President to appoint to bffices where Congress has made no other provision. ". (30 Op. Atty. Gen., supra, at 180, June 23, 1913. See Also: 14 Op. Atty. Gen. 164, Jan. 9, 1873; 18 Op. Atty. Gen. 18, June 23, 1884.)

"It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised. We see nq Conflict between the latter power and that of appointment and removal, provided of course that the Qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation. (Myers, Admx. v. United States, 272 U.S. 52, 128, Oct. 25, 1926.)

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"To Congress under its legislative power is given the establishment of offices, the determination pf their functions and jurisdiction, the prescribing pf reasonable and relevant qualifications and rules pf elegibility of appointees, and the fixing of the term for which they are to be appointed, and their Compensation--all except as otherwise provided by the Constitution." (Myers, Admx. v. United States, supra, at 129, Oct. 25, 1926.)

"Congress cannot appoint him an officer of the Army to a new and different office, because the Constitution vests the appointing power in the President with the advice of the Senate, or in certain cases in the President alone, the heads of the executive departments, or the courts of law; but Congress may transfer him to the retired list, and may change his rank and pay at any time, without coming in conflict with that provision Art. II, sec. 2, cl. 27 of the Constitution." (Wood v. United States, 15 Ct. Cls. 151, 161, Dec. Term, 1879, aff., 107 U.S. 414, Oct. Term, 1882. See also Moser v. United States, 42 Ct. Cls. 86, Jan. 7, 1907.)

"Congress can not by mere legislative fiat restore retired naval officers to positions which they previously held on the active list. One who has been removed from office in the United States Army or Navy can not be restored to it except by a

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"The great question of protection to contract rights and vested interests, which forms such an Interesting and important feature of our constitutional law, is not. dominated by the turn of a phrase. Our courts, both state and national, look on these questions through the form to the substance of things; and, in substance, a statute under which one takes office, and which fixes the term of office at one year, or during good behavior, is the same as one which adds to those provisions the declaration that the incumbent shall not be dismissed therefrom. Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will; and one legislature cannot deprive its successor of the power of revocation. (Crenshaw v. United States, 134 U.S. 99, 108, Mar. 3, 1890. See also: United States v. Hartwell, 6 Wall. 385, 393, Dec. Term, 1867; Field . Giegengack, 73 F.2d 945946, Nov. 5, 1934.)

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The qualifications of a candidate are presumed to have been ascertained and found satisfactory previous to his appointment to office; and a subBequent administration can not, in the absence of fraud, deprive the incumbent of his office, although evidence should be produced that he did not possess the statutory qualifications for appc intment. (28 Op. Atty. Gen. 180, Feb. 14, 1910.)

An officer in the Dental Corps of the Navy was given a commission under date of Mar. 15, 1932, covering his promotion to dental surgeon with the rank of lieutenant commander to rank from June 4, 1931, which was the date of rank of his line running mate. Subsequently, under authority of an act of May 7, 1934, ch. 257, 48 Stat. 1346, he was advanced on the precedence fist and was assigned a new running mate, whose date of rank was June 2, 1927. Held, as this did not involve appointment to a new office as contemplated by Art. II, sec. 2, cl. 2, of the Constitution, it was wholly within the power of Congreės and a new appointment involving nomination to ana confirmation by the Senate was not required. Not only was a new commission not required in this case, but such action was not authorized. All that was required was a notification to the officer that in accordance with the provisions of the above-mentioned act he had been advanced to a specified position on the list of dental surgeons with the rank of lieutenant commander, and that the date of rank would be considered to be June 2, 1927. (File 00-Weigester, Charles S/P17-1 (341210), Mar. 5, 1935, C.M.O. 3-1935, p. 11.)

Diplomatic agents.- "These words Ambassadors, other public Ministers and Consuls are descriptive of a class existing by the law of nations, and apply to diplomatic agents whether accredited by the United States to a foreign power or by a foreign power to the United States, and the words are so used in section 2 of Art. III. These agents may be called ambassadors, envoys, ministers, commissioners,

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charges d'affaures, agents, or otherwise, but they possess in substance the same functions, rights and privileges as agents of their respective governments for the transaction of its diplomatic busines8 abroad. Their designations are chiefly significant in the relation of rank, precedence or dignity. (In re Baiz, Petitioner, 135 U.S. 403, 419, May 5, 1890. See also 7 Op. Atty. Gen. 186, 190-193, May 25, 1855.)

Officers of the United States. "The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But forseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those especially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the Government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt." (United States v. Germaine, 99 U.S. 508, 509-510, Oct. Term, 1878.)

"What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, has been very fully considered by this court in United States v. Germaine, 99 U.S. 508. In that case, it was distinctly pointed out that, under the Constitution of the United States, all its officers were 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 the heads of the Departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, 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." (United States v. Mouat, 124 U.S. 303, 307, Jan. 23, 1888. See also: United States v. Smith, 124 U.S. 525, 532, Feb. 6, 1888; McGrath v. United States, 275 F. 294, 300-301, July 6, 1921; Hoeppel v. United States, 85 F.2d 237, May 18, 1936, cert. den. 299 U.S. 557, Oct. 12, 1936; Brooks v. United States, 33 F.Supp. 68, 69, Nov. 2, 1939.)

One whose position is without tenure, duration, continuing emolument, or continuous duties, and who acts only occasionally and temporarily in special cases, is not an "officer" within the meaning of Art. II, sec. 2, cl. 2, of the Constitution. (Auffmordt v. Hedden, 137 U.S. 310, Dec. 8, 1890. See also United States v. Hartwell, 6 Wall. 385, 393, Dec. Term, 1867.)

"It is quite true that the words 'officer of the United States,' when employed in the statutes of the United States, is to be taken usually to have the limited constitutional meaning. *** But we find that this Court in consideration of the context has sometimes given it an enlarged meaning and has found it to include others than those appointed by the President, heads of departments, and courts. (Steele v. United States No. 2, 267 U.S. 505, 507, Apr. 13, 1925, citing United States v. Hendee, 124 U.S. 309, Jan. 23, 1888.)

Inferior officers.- "This provision of the Constitution divides inferior officers into two classes according to the source from which the power of appointment is derived. When Congress creates an office, but does not vest the power of appointment

thereto in any of the persons specified, then the Constitution operates proprio vigore and immediately casts upon the President, by and with the advice and conset sig or the Senate, the duty of appointing thereto. There, on the other hand, Congress itself designates the person or persons who are to appoint to a given office created by it, there the power and the duty of appointment comes immediately from Congress, and only mediately from the Constitution." (30 Op. Atty. Gen. 177, 179, June 23, 1913.)

"It would be impossible to define, except arbitrarily, the meaning of the words 'inferior officers,' in their application to officers of the different branches of the public service who have no official relation to each other, and it would not be easy to separate all the officers of the government into two classes and draw a satisfactory line which would divide the inferior, in the sense in which it is claimed that word is used, from those of the higher class, nor is it necessary to attempt to do either. In our opinion, the words, as used in connection with the other language of the same clause, have a plain, definite, and intelligible meaning, capable of unmistakable application to effect the purposes of that provision of the Constitution. Having specified certain officers, ministers, consuls, and judges of the Supreme Court who shall be nominated by the President and appointed by and with the advice and consent of the Senate in all cases, the Constitution leaves it to Congress to vest in the President alone, the courts of law, or the heads of departments the appointment of any officer inferior or subordinate to them respectively, whenever Congress thinks proper so to do. Thus it may authorize the President or the head of the War Department to appoint an Army officer, because the officer to be appointed is inferior to the one thus vested with the appointing power. The word inferior is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested-the sense of petty or un important; but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested-the President, the courts of law, and the heads of departments." (Collins v. United States, 14 Ct. Cls. 568, 574, Dec. Term, 1868. See also 23 Op. Atty. Gen. 574, 577-579, Nov. 7, 1901, 4

"Whenever, therefore, Congress thinks proper to vest in the President alone, in a court of law, or in the head of a department the appointment of any of their respective subordinate officers, other than those named in the clause under consideration, or whose appointment is otherwise provided for by the Constitution, it must be held that such officers are inferior officers within the meaning of the Constitution, whose appointment in that manner Congress has the power to authorize; and the act of Congress must be respected and enforced by the executive officers of the government and by the courts. (Collins v. United States, supra, at 575.)

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Appointments with advice and consent of Senate."To constitute an appointment under this article, it is necessary--1st, that the President should" nominate the person proposed to be appointed; 2d, that the Senate should advise and consent that the nominee should be appointed; and, 3d, that in pursuance of such nomination and such advice and consent, the appointment should be actually made." (4 Op. Atty. Gen. 217, 219, Aug. 9, 1843..)

"The nomination is not an appointment; nor is that nomination followed by the signification of the advice and consent of the Senate, that it should be made sufficient of themselves to confer upon a citizen an officer under the constitution. They serve

but to indicate the purpose of the President to appoint, and the consent of the Senate that it should be effectuated; but they do not divest the executive authority of the discretion to withhold the actual appointment from the nominee. To give a public officer the power to act as such, an appointment must be made in pursuance of the previous nomination and advice and consent of the Senate, the commission issued being the evidence that the purpose of appointment signified by the nomination has not been changed." (4 Op. Atty. Gen. 217, 219, Aug. 9, 1843.)

"The Constitution provides (Art. II, sec. 2) that all officers of the United States shall be appointed by the President by and with the advice and consent of the Senate, except where, in the case of inferior officers, Congress shall otherwise provide by law. The general rule deducible from this provision is that, in the absence of an express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Senate." (29 Op. Atty. Gen. 116, 117, June 1, 1911.)

"As, however, the two persons whose eligibility is questioned were at the time of the passage of the act and of their action under it officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.". (Shoemaker v. United States, 147 U.S. 282, 301, Jan. 16, 1893.)

"The Senate has no power to originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the President's nomination. Whenever the Senate disagrees to such a nomination, it fails; and no appointment can be made, except on a new nomination to be made by the President." (3 Op. Atty. Gen. 188, 189, Mar. 29, 1837.)

The power to restore an officer, by reappointment and commission, to lost rank in the Army, or Navy, "is one plainly within the competency and discretion of the President, by and with the advice and consent of the Senate." (8 Op. Atty. Gen. 223, 238, Dec. 10, 1856.)

The President made appointments of chaplains to Army hospitals before the passage of any law authorizing them. Subsequently he made known the fact to Congress, and by act of July 17, 1862, ch. 200, sec. 9, 12 Stat. 594, the appointments of chaplains to Army hospitals, theretofore made by the President, were confirmed. Held, that it was not necessary that the persons so appointed and confirmed by statute should be again nominated to the Senate for its advice and consent. (10 Op. Atty. Gen. 449, Feb. 3, 1863.)

The confirmation of an officer nominated for promotion may be made as well by the confirmation of his successor as in any other way provided it shows the assent of the Senate to such promotion. (23 Op. Atty. Gen. 30, Feb. 19, 1900.)

Vesting of appointments in the President, courts, or heads of departments.- "I think congress has no power whatever to vest the appointment of

any employe, coming fairly within the definition of an inferior officer of the government, in any other public authority but the President, the heads of departments, or the judicial tribunals. (4 Op. Atty. Gen. 162, 164, Mar. 24, 1843. See also 8 Op. Atty. Gen. 41, Aug. 22, 1856.)

"An examination of kindred enactments relating relating to appointments in the Navy, as well as to appointments in the Army, indicates that Congress frequently discriminates between appointments to be made by the President alone and appointments to be made by the President by and with the advice and consent of the Senate." (22:Op. Atty. Gen. 82, 83, May 16, 1898.).

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"It is universally true, I think, that when Congress, in pursuance of its authority under the provision of the Constitution above quoted, sees fit to give the sole power of appointment to the President, it does so by language appropriate to that end * *; and, on the other hand, when Congress means the appointment to an office established by law to be made by and with the advice and consent of the Senate, the intention to that effect is specifically shown by the language used ***. Op. Atty. Gen. 136, 137-138, May 11, 1900.)

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"The Constitution declares that 'the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments. It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. " (Ex parte Siebold, 100 U.S. 371, 397, Oct. Term, 1879. See also Ex parte Hennen, 13 Pet. 230, 257-258, Jan. Term, 1839.)

"It was argued that the appointment of Hatch was illegal because it was made by the Secretary of the Treasury, and should have been made by the superintendent of immigration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than 'in the President alone, in the courts of law or in the heads of departments; the act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the Secretary of the Treasury; and appointments of such officers by the superintendent of immigration could be upheld only by presuming them to be made with the concurrence or approval of the Secretary of the Treasury, his official head." (Nishimura Ekiu v. United States, 142 U.S. 651, 663, Jan. 18, 1892. See also: Stanton v. Wilkeson, 22 Fed. Cas. 1074, No. 13, 299, Feb., 1876; Frelinghuysen v. Baldwin, 12 F. 395, June 3, 1882; Price v. Abbott, 17 F. 506, June 22. 1883.)

"Congress has, at various times, authorized appointments independently of the President, courts of law, or heads of Departments, in departmental Bureaus, in the customs service, in the internalrevenue service, in the land-offices, and in some other branches of the civil service. Upon this legislation it may be observed: First, that in some of these cases, such as those of deputy marshals and deputy clerks, the persons appointed are representatives of the officers who appoint them, and who, in some particulars, are responsible by Congress that the office was sustantially in the principal. Second, that it was, no doubt, considered by Congress

that some of the persons whose appointments were thus provided for were not officers in the constitutional sense of that term. Many employments now universally held to be offices were not esteemed such at the outset, but with the growth of the Government were raised to that rank. " (13 Op. Atty. Gen. 516, 521, Aug. 31, 1871.)

"Thus, the force of legislative precedents-is somewhat weakened. Yet, it cannot be denied that some of them take for granted that Congress is absolute in the matter of appointments. Such, -however, is not the constitutional rule. Congress has power to distribute at its pleasure the appointment of inferior officers between the President, courts of law, and heads of Departments, or to vest such appointments exclusively in one or two of those depositaries; but it has no power to vest appointments elsewhere, directly or indirectly. (13 Op. Atty. Gen. 516, 521, Aug. 31, 1871.)

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"The appointments provided for by this legislation act of May 4, 1898, ch. 234, 30 Stat. 3697 are not such as by the Constitution are required to be made in any particular way. It was within the province of Congress to prescribe by whom and how these additional officers should be chosen, appointed, and commissioned. Congress might have directed that they should be appointed by the President, by and with the advice and consent of the Senate, but such was not the method actually provided for. The provision of the statute is that the President is authorized to appoint. I see no ground whatever for holding that the advice and consent of the Senate is requisite to a lawful appointment under this legislation." (22 Op. Atty. Gen. 82, 83, May 16, 1898.)

"If to appoint is merely to do a formal act; that is, merely to authenticate a selection not made by the appointing power, then there is no constitutional objection to the designation of officers by a competitive examination, or any other mode of selection which Congress may prescribe or authorize. But if appointment implies an exercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the appointing power is vested by the Constitution, and a mode of selection which gives no room for the exercise of that judgment and will is inadmissible. If the President in appointing a marshal, if the Senate in appointing its Secretary, if a court or head of Department in appointing a clerk, must take the individual whom a civil-service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the President, of the Senate, of the court, or of the head of Department, but are the will and judgment of the civil-service board, and that board is virtually the appointing power. Viewing the appointing power conferred in the Constitution as a substantial and not merely a nominal function, I cannot but believe that the judgment and will of the constitutional depositary of that power should be exercised in every appointment. The power was lodged where it is, because the makers of the Constitution, after careful consideration, though that in no other depositaries of it could the judgment and the will to make proper appointments 80 certainly be found. They assigned it to functionaries who were expected to have an adequate knowledge of men and of affairs, to have capacity for public business, and to feel responsible to conscience and to the opinion of good citizens. As a further security, they placed the power in the hands of those who would have a particular interest

in using it well. If a legislative body is illofficered, the members cannot do their work with ease or advantage; therefore each branch of Congress chooses its officers. Without efficient servitors, a court of law is impotent; therefore Congress may vest appointments in courts. The first need of the head of a Department is a body of capable and trusty assistants; therefore Congress may vest appointments in the heads of Departments. In all cases not thus provided for, the appointment is with the President, whose success in his weighty charge essentially depends on the competency of the appointees. Thus the reasons for the constitutional provision all forbid that any judgment and will but those of the constitutional appointing power should have legal operation in the matter of appointment." (13 Op. Atty. Gen. 516, 518-519, Aug. 31, 1871.)

"The most important civil appointments are made by the President, with the advice and consent of the Senate. If Congress can compel the President to nominate a person selected by others, it can compel the Senate to advise and consent to that nomination. If the foremost man in the competitive test is entitled to the office, that test must be conclusive upon all whose action is required to place him in the office, and, in fact, the action of all of them is merely formal, except that of the judges in the test. But advice and consent imply an exercise of judgment and will. So does nomination. So does appointment. There is this difference, that the judgment and will of the Senate can regard only the person proposed by the President, while there is no similar constitutional limitation upon his judgment and will. But there is no right in Congress to constrain either to adopt the judgment and the will of others. Such constraint frustrates the constitutional design, that the judgment of the Senate shall revise the judgment of the President, and that the judgment of both shall concur in filling the office. Although it might not be thought expedient to apply the competitive test, if established, to appointments in which the Senate must concur, it should be remembered that there is as much constitutional right to do so as in the case of appointments of the other class. When the appointment of an inferior officer is vested in the President alone, his individual act accomplishes what is done by himself and the Senate together in the appointment of a superior officer, and should be as independently performed as each part of the compound process in the latter case. " (13 Op. Atty. Gen. 516, 519-520, Aug. 31, 1871.)

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"The appointing power may avail itself of the judgment of others as one means of information. want of personal knowledge of candidates, it has habitually done so from the foundation of the Government. But this has been done in its discretion. I see no constitutional objection to an examining board, rendering no imperative judgments, but only aiding the appointing power with information. A legal obligation to follow the judgment of such a board is inconsistent with the constitutional in

dependence of the appointing power. (13 Op. Atty. Gen. 516, 520, Aug. 31, 1871.)

"The argument has been made that the unquestioned right of Congress to create offices implies a right to prescribe qualifications for them. This

is admitted. But this right to prescribe qualifications 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. The parts of the Constitution which confer this power are as valid as those parts from which Congress derives the power to create offices, and one part should not be sacrificed to the other. An office

cannot be created except under the condition that it shall be filled according to the constitutional rule." (13 Op. Atty. Gen. 516, 520-521, Aug. 31, 1871.)

"It is, doubtless, within the power of Congress to require that all appointments to certain classes, grades, or kinds of office or place shall be made from those persons whose fitness for the place and ability to perform its duties have been determined upon a certain prescribed examination or test. While this limits the range of such appointments, it no more does so than does the general requirement-whether expressed in the power of appointment or not --that appointees shall be from those who are suitable for, and competent to, perform the duties of the place." (25 Op. Atty. Gen. 342-343, Jan. 18, 1905.)

"That Congress may prescribe qualifications for office, and require that appointments shall be made from among those who have been shown by proper tests to have those qualifications, is well settled." (26 Op.Atty. Gen. 502, 503, Feb. 12, 1908.)

"The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto. (Perkins v. United States, 20 Ct. Cls. 438, 444-445, June 1, 1885, aff., 116 U.S. 483, Jan. 25, 1886.)

An officer appointed by the head of a department without statutory authority was not legally appointed, and his status is that of a de facto officer. (29 Op. Atty. Gen. 116, June 1, 1911.)

Terms of heads of departments.- "While the President may, at pleasure, remove any executive officer, and while Congress may limit the term for which any executive officer may be appointed (Myers v. United States, 272 U.S. 52, 129), there is no provision in the Constitution which limits the term to which the head of a department may be appointed, nor, except in the case of the Postmaster General, is there at the present time any statute which fixes any limit." (36 Op. Atty. Gen. 12, 13, Apr. 18, 1929.)

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"As the statutes creating these offices do not otherwise provide for the making of appointments thereto, Article II, section 2, of the Constitution empowers the President to make the appointments by and with the advice and consent of the Senate. no term of office is fixed, the commissions may authorize the officer to hold office during the pleasure of the President (1 Op. 212), and this does not mean merely the President who made the appointment, but includes the incumbent of the position at any time thereafter. (36 p.Atty. Gen. 12, 13, Apr. 18, 1929.)

Commencement of right to compensation.- "It is well settled that officers appointed by the President by and with the advice and consent of the Senate, are entitled to compensation not necessarily from the date of the commission issued by the President, but from the date of acceptance of the appointment after the issuance of the commission. In other words, before compensation becomes payable in such cases there must be some affirmative action on the part of the nominee to show his acceptance of the appointment after the issuance of the commission by the President; and the date on which suon affirmative action is taken determines or fixes, as a general rule, and in the absence of statutory provision otherwise, the commencement of the officer's right to

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Power of removal.- All offices, the tenure of which is not fixed by the constitution, or limited by law, must be held either during good behavior, or (which is the same thing in contemplation of law), during the life of the incumbent; or must be held at the will and discretion of some department of the government, and subject to removal at pleasure. cannot, for a moment, be admitted, that it was the intention of the constitution, that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained, in the early history of this government. This related, however, to the power of the president to remove officers appointed with the concurrence of the senate; and the great question was, whether the removal was to be by the president alone, or with the concurrence of the senate, both constituting the appointing power. No one denied the power of the president and senate, jointly, to remove, where the tenure of the office was not fixed by the constitution: which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the constitution, that this power was vested in the president alone. And such would appear to have been the legislative construction of the constitution." (Ex parte Hennen, 13 Pet. 230, 259, Jan. Term, 1839.)

An officer of the Army is effectively removed through the appointment of a successor by and with the advice and consent of the Senate. (Blake v. ComUnited States, 103 U. S. 227, Oct. Term, 1880. pare: 8 Op. Atty. Gen. 379, Feb. 10, 1857. See also 39 Op. Atty. Gen. 437, 439, May 14, 1940.)

"We have no doubt that 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 interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed." (Perkins v. United States, 20 Ct. Cls. 438, 444, June 1, 1885, aff., 116 U. S. 483, Jan. 25, 1886. See also Myers, Admx. v. United States, 272 U.S. 52, 160-161, Oct. 25, 1926.)

The intention of Congress in the repeal of the sections of the Revised Statutes relating to tenure of office "was again to 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. United States, 167 U. S. 324, 343, May 24, 1897.)

"In the absence of specific provision to the contrary, the power of removal from office is in'It cannot for cident to the power of appointment.

a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life.

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