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 íncident to the power of appointment.'*** Unless, therefore, there be some specific provision to the contrary, the action of the Secretary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed. " (Keim v. United States, 177 U. S. 290, 293-294, Apr. 9, 1900.)

"It cannot now be doubted that in the absence of constitutional or statutory provision the President can be virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the Senate. Ex parte Hennen, 13 Pet. 230; Parsons v. United States, 167 U. S. 324, and cases cited. To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. " (Shurtleff v. United States, 189 U. S. 311, 314-315, Apr. 6, 1903.)

"In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes for removal thereby excluded the right of the President to remove for any other

reason which he, acting with a due sense of his official responsibility, should think sufficient." (Shurtleff v. United States, supra, at 317.)

The President is empowered by the Constitution to remove any executive officer appointed by him for a fixed term by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate nor can it be made so by an act of Congress. (Myers, Admx. v. United States, 272 U.S. 52, Oct. 25, 1926, Compare: Humphrey's Executor v. United States, 295 U.S. 602, May 27, 1935. See also: 39 Op. Atty. Gen. 145, Mar. 18, 1938; Morgan v. Tennessee Valley Authority, 28 F. Supp. 732, Aug. 11, 1939, aff., 115 F.2d 990, Dec. 6, 1940, cert. den., 312 U.S. 701, Mar. 17, 1941; S. Doc. No. 174, 69th Cong., 2d. Sess.; S. Doc. No. 172, 70th Cong., 2d Sess.)

Resignation of officers.- "Nothing short of a written resignation to the President, or the proper executive department, by a commissioned officer of the army, navy, or marine corps, and the acceptance of the same duly notified to the incumbent of the office, in the customary mode, will of itself create a vacancy in such an office, or prevent the incumbent, if the President consents, from withdrawing the proposed resignation; in which event the rights, privileges, duties, and obligations of the officer remain just as if the resignation had never been tendered.". (Mimmack v. United States, 97 U.S. 426, 432, Oct. Term, 1878. See also: Barger v. United States, 6 Ct. Cls. 35, 37-39, Dec. Term, 1870; 14 Op. Atty. Gen. 259, 261-262, June 17, 1873; 18 Comp. Gen. 528, 530, Dec. 9, 1938; and File 26505-136, Nov. 18, 1924, C.M.O. 12-1924, p. 7.)

"The word 'vacancy' in the Constitution refers to offices, and signifies the condition where an office exists, of which there is no incumbent. It is used without limitation as to how the vacancy comes to exist. The vacancy may have occurred by death, resignation, removal, or any other cause, but, regardless of the cause or manner of the existence of the vacancy, the power is the same. In the case submitted the law has created the office. The office, therefore, exists. There is no incumbent. There is, therefore, a vacancy, and the case comes under the general power to fill vacancies." (19 Op. Atty. Gen. 261, 263, Mar. 20, 1889.)

A vacancy having occurred during the session of the Senate and the Senate having failed to confirm an appointment, the President may then appoint the nominee or any other person to fill the vacancy

by temporary commission to expire at the end of the next session of the Senate. (30 Op. Atty. Gen. 314, Nov. 24, 1914, citing the following prior opinions of the Attorneys General: 1 Op.Atty. Gen. 631, Oct. 2, 1823; 2 Op. Atty. Gen. 525, July 19, 1832; 3 Op. Atty. Gen. 673, Oct. 22, 1841; 4 Op. Atty. Gen. 523, Aug. 13, 1846; 7 Op. Atty. Gen. 186, May 25, 1855; 10 Op. Atty. Gen. 356, Oct. 15, 1862; 12 Op. Atty. Gen. 32, Aug. 30, 1866; 12 Op. Atty. Gen. 455, Aug. 17, 1868; 14 Op. Atty. Gen. 562, Apr. 24, 1875; 16 Op. Atty. Gen. 522, June 18, 1880; and 26 Op. Atty. Gen. 234, Apr. 17, 1907. See also: 11 Op. Atty. Gen. 179, Mar. 25, 1865; 12 Op. Atty. Gen. 449, Aug. 17, 1868; 15 Op. Atty. Gen. 207, Mar. 17, 1877; 18 Op. Atty. Gen. 28, June 25, 1884; 19 Op. Atty. Gen. 261, Mar. 20, 1889.)

"As several of the opinions to which I have just referred discuss the entire subject with marked thoroughness, I have concluded to simply state the conclusion at which my predecessors arrived. These opinions announce as a doctrine of administrative law, that the expression in the Constitution 'all vacancies that may happen during the recess' signifies all vacancies that may happen to exist during the recess. Furthermore, these opinions concur in the general conclusion that howsoever a vacancy happens to exist, it may be filled by temporary appointment of the President, and they agree that it is the true spirit and meaning of the Constitution to have

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The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed. (State of Mississippi v. Johnson, President, 4 Wall. 475, Dec. Term, 1866.)

"I entertain no doubt of the constitutional power of the President to order the discontinuance of a suit commenced in the name of the United States in a case proper for such an order. Were a district attorney, for example, of his own mere motion, to commence a suit in the name of the United States, in a case wholly unfounded in law, the only effect of which would be to expose the defendant to needless annoyance and expense, I should consider the President not only authorized, but required by his duty, to order a discontinuance of such vexation; for it is one of his highest duties to take care that the laws be executed, and, consequently, to take care that they be not abused by any officer acting under his authority and control to the grievance of the citizen." (2 Op. Atty. Gen. 53-54, July 27, 1827.)

"The power of appointment results from the obligation of the executive department of the government to take care that the laws be faithfully executed; an obligation imposed by the constitution, and from the authority of which no mere act of legislation can operate a dispensation. Congress may, however, indirectly limit the exercise of this power by refusing appropriations to sustain it, and thus paralyze a function which it is not competent to destroy." (4 Op. Atty. Gen. 248, Sept. 21, 1843.)

"As to the clause of the Constitution, which makes it the duty of the President 'to take care that the laws be faithfully executed,' that, it is apprehended, refers primarily to the laws of the United States, and to those of a State or Territory only in the contingency when the case of insurrection therein is presented according to the Constitution and to acts of Congress." (8 Op. Atty. Gen. 8, 11, July 19, 1856.)

"Every law is to be carried out so far forth as is consistent with the Constitution, and no further. The sound part of it must be executed, and the vicious portion of it suffered to drop. A legislative act is not to be treated as void merely because it is coupled with an abortive attempt to usurp executive powers. It stands to reason that if a condition, such as this is asserted to be, is void, it can have no effect whatever either upon the subject-matter or upon other parts of the law to which it is appended. ***You the President are therefore entirely justified in treating this condition (if it be a condition) as if the paper on which it is written were blank." (9 Op. Atty. Gen. 462, 469470, July 31, 1860.)

"The President has, under the Constitution and laws, certain duties to perform, among these being to take care that the laws be faithfully executed; that is, that the other executive and administrative officers of the Government faithfully perform their duties; but the statutes regulate and prescribe these duties, and he has no more power to add to, or subtract from; the duties imposed upon subordinate executive and administrative officers by the law, than those officers have to add to or subtract from

his duties." (19 Op. Atty. Gen. 685, 686-687, Nov. 12, 1890.)

"The general structure of our government imposes the duty of enforcing the laws primarily upon its executive officers. A large portion of all legislation is injunctive. It forbids, and prescribes

a penalty for the violation of, the inhibition. The purpose of such legislation is not the infliction of the penalties, but obedience to the law. Hence officers charged with the enforcement of such laws may lawfully interpose to prevent their violation without special writ or process where interposition infringes no personal or property right of those who seek to break them. A sheriff or a policeman who perceives one about to kill or maim another, to burn his house, to steal his property, or to do any other act prohibited by the laws of the land, which it is his duty to enforce, is not required to wait in futile idleness until the laws have been broken in order that the prescribed penalities for their violation may be inflicted, even though those penalties are the only means specifically prescribed by the laws for their enforcement. The laws themselves and his commission of office vest in him the authority, and impose upon him primarily the duty, to prevent their violation, and thus to enforce obedience to them. He may lawfully do, and it is his duty to do, this without further warrant or process, where such action will not impinge upon the lawful rights of those who threaten the violation. Mobs gather, and threaten to destroy life and property. The laws and the commissions of their office are ample process of law to warrant mayors, Governors, the President, and all executive officers of city, state, and nation to gather their forces, if necessary, to surround the threatened persons and property, and to protect them against attack. Indeed, this is the primary duty of the executive department of the government, and it is only after executives renounce or fail to discharge this duty that an appeal may be successfully made to the courts for relief." (Buster v. Wright, 135 F. 947, 955-956, Mar. 7, 1905.)

Civil liability of officers of the United States. "I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think, that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle, that those orders, if not to perform a prohibited act, ought to justify the person whose general duty is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think, that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass. (The Flying Fish, 2 Cr. 170, 179, Feb. Term, 1804.)

"We are not aware of any case in England or in this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable to an action for

an error of judgment. *** It repeatedly and unavoidably happens, in transactions with the government, that money due to an individual is withheld

from him for a time, and payment suspended in order to afford an opportunity for a more thorough examination. Sometimes erroneous constructions of the law may lead to the final rejection of a claim in cases where it ought to be allowed. But a public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion; even although an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. It is unnecessary, we think, to refer to the many cases by which this doctrine has been established." (Kendall v. Stokes, 3 How. 86, 97-98, Jan. Term, 1845.)

"There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.

"But we are clearly of opinion, that in all these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." (Mitchell Harmony, 13 How. 115, 133-134, Dec. Term, 1851. See also: United States v. Russell, 13 Wall. 623, 627-628, Dec. Term, 1871; Holmes v. Sheridan, 12 Fed. Cas. 422, 423, No. 6,644, 1870.)

v.

"When a court-martial is confirmed, it is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not jurisdiction over the subject-matter or charge, or one in which, having jurisdiction over the subject-matter, it has failed to observe the rules prescribed by the statute for its exercise. In such cases, *** all of the parties to such illegal trial are trespassers upon a party aggrieved by it, and he may recover damages from them on a proper suit in a civil court, by the verdict of a jury." (Dynes v. Hoover, 20 How. 65, 81, Dec. Term, 1857. See also Wise v. Withers, 3 Cr. 331, 337, Feb. Term, 1806.)

"That an act passed after the event, which in effect ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires it." (Mitchell v. Clark, 110 U.S. 633, 640, Mar. 3, 1884. See also: Bean v. Beckwith, 18 Wall. 510, Oct. Term, 1873; McCall . McDowell, 15 Fed. Cas. 1235, No. 8,673, Apr. 25, 1867; O'Reilly De Camara v. Brooke, 142 F. 858, Jan. 11, 1906; 9 Op. Atty. Gen. 51, June 14, 1857.)

"But the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of

the United States. Such officers or agents, although acting under order of the United States, are therefore personally liable to be sued for their own infringement of a patent." (Belknap v. Schild, 161 U.S. 10, 18, Feb. 3, 1896.)

"We are of opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial officer, we recognize a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision. Whatever difficulty may arise in applying these principles to particular cases, in which the rights of the citizen may have been materially impaired by the inconsiderate or wrongful action of the head of a Department, it is clear--and the present case requires nothing more to be determined--that he cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority, by reason of any personal motive that might be alleged to have prompted his action; for, personal motives cannot be imputed to duly authorized official conduct. In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals." (Spalding v. Vilas, 161 U.S. 483, 498-499, Mar. 2, 1896. See also: Mellon v. Brewer, 18 F. 2d 168, Mar. 7, 1927, cert. den., 275 U.S. 530, Oct. 22, 1934; Lang v. Wood, 92 F.2d 211, June 1, 1937, cert. den., 302 U.S. 686, Oct. 11, 1938; Glass v. Ickes, 117 F.2d 273, Aug. 26, 1940.)

"The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. *** And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with respect to state officers seeking to enforce unconstitutional enactments. *** And it is equally applicable to a Federal officer acting in excess of his authority or under an authority not validly conferred." (Philadelphia Company v. Stimson, Secretary of War, 223 U.S. 605, 619-620, Mar. 4, 1912. Goltra See also:

v. Weeks, Secretary of War, 271 U.S. 536, 544-545, June 7, 1926; Miller v. Standard Nut Margarine Co. of Florida, 49 F.2d 79, 85, Apr. 22, 1931.)

"It is equally well settled that an agent of the government or of a branch thereof is not personally liable on a contract made on behalf of his principal while acting within the scope of his authority. (United States Shipping Board Emergency Fleet Corp. v. Galveston Dry Dock & Construction Co., 13 F.2d 607, 612, June 5, 1926.)

"No rule of law can be cited that will ever protect a public officer from the consequences of an act which he may imagine he is performing as a public officer, but which involves an exercise of authority by him as to some person over whom he is absolutely without authority.". (Ex parte Rock, 171 F. 240, 242, Feb. 17, 1909. See also Waters v. Campbell, 29 Fed. Cas. 412, No. 17,265, Sept. 3, 1877.)

"It is well-settled law that public officers are not responsible for acts of subordinate officials, if such subordinates are themselves employees of the government, where there is no negligence on the part of such public officials in employing them, unless the superior officer has directed or encouraged or ratified such acts or has personally cooperated therein." (Fidelity & Casualty Co. of New York v. Brightman, 53 F.2d 161, 166, Nov. 7, 1931. See also: Guild v. Brown, 1 P.2d 528, July 8, 1931; Helm v. Washington, 5 P.2d 53, Nov. 12, 1931; Phelps v. Boone, 67 F.2d 574, Oct. 30, 1933, cert. den., 291 U.S. 677, Mar. 5, 1934; Rich v. Warren, 123 F.2d 198, Nov. 7, 1941.)

A naval officer's communications to his superiors are absolutely privileged, provided they are authorized by law, are made in course of duty, and are germane to the subject matter of the inquiry. (Miles v. McGrath, 4 F. Supp. 603, Feb. 13, 1933. See also Harwood v. McMurtry, 22 F. Supp. 572, Mar. 9, 1938.)

II. COMMISSIONING OF OFFICERS.

In general.- "The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission, will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which authorizes congress 'to vest, by law, 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;' thus contemplating cases where the law may direct the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. " (Marbury v. Madison,

1 Cr. 137, 156, Feb. Term, 1803. See also: Quackenbush v. United States, 177 U.S.. 20, 27, Mar. 19, 1900; 25 Op. Atty. Gen. 292, 293, Dec. 17, 1904; Bennett v. United States, 19 Ct. Cls. 379, 385, Apr. 7, 1884.)

"When a person has been nominated to an office by the President, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his appointment. These acts then become conditions precedent to the complete

investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete." (United States v. LeBaron, 19 How. 73, 78, Dec. Term, 1856.)

"The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody. It is but evidence of those acts of appointment and qualification which constitute his title, and which may be proved by other evidence, where the rule of law requiring the best evidence does not prevent. (United States v. LeBaron, supra, at 78-79. See also Marbury v. Madison, supra, at 157.)

"

Effect of variance between nomination and confirmation. When the Senate, in confirming the nomination of a candidate for appointment as an officer in the Navy, specifies that he shall take rank after a designated officer, thus varying the terms of the nomination, a commission can not properly issue. (3 Op. Atty. Gen. 188, Mar. 29, 1837.)

Signing of commissions. -- It is not necessary for the President personally to sign the commissions of officers of the Navy appointed by him without the advice and consent of the Senate, but such commissions may be issued by the Secretary of the Navy. However, the commission should declare the act to be an act of the President, performed by the head of the department as his representative. (22 Qp. Atty. Gen. 82, May 16, 1898.)

"Under the practice in the Navy Department and in other Executive Departments many things may be done by the head of the Department without the actual signature of the President, which, when done, are the acts of the President himself; but in such instances it is proper that the instrument, whether it be a commission or other document, should declare the act to be an act of the President, performed by the head of the Department as his representative." (22 Op. Atty. Gen. 82, 84, May 16, 1898.)

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