Imágenes de páginas

President to direct him to exercise it--I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President. This opinion shows a comprehension of the general problem seldom equalled in any discussion of the nature of administration.

Moreover this opinion came at the psychological moment. President Jackson had just begun his war upon the United States Bank. As the law then stood the Secretary of the Treasury had the management of the funds of the government under the direction of Congress. Congress had just resolved that the deposits might with safety be continued in the Bank of the United States; Duane, the then Secretary of the Treasury, had informed the President that as he was unable to share the President's view he must continue the deposits upon his owri responsibility. President Jackson immediately returned the letter to him as unbecoming in one of his position, curtly refused all further dis. cussion, and asked him for a decisive answer to the question whether he would obey. Duane refused; whereupon Jackson sent him his dismissal.

On the very same day, Jackson appointed Taney to be Secretary of the Treasury; and Taney gave the necessary order for the removal of the deposits without delay. Before the next Congress, Taney justified his action as within discretion vested in him by law, and his obedience as the duty owed by him to the President as the chief execuitive.

This account of these events is worth a hundred cases from the law reports. The President it appears has the power in all matters whatsoever to force any officer whatsoever to do any act which the officer has power to do. He can dictate in all matters, because he has the power of instant dismissal without giving reasons therefor, and thereupon the right of immediate appointment without limitation therein. And this is true to a greater or to a lesser extent of the power of every superior over every inferior at every step in the hierarchy of a centralized administration. Might makes right. Whatever the superior commands will be done by the inferior because of this sanction. An administration which is centralized in its organization will always prove to be centralized in its action. It cannot work out other.

wise. 04

54 LOWER.-Smith v. Strobach, 50 Ala. 462; Danley v. Whiteley,

$ 70. Higher.

Since that day when Jackson removed the Secretary of the Treasury in order to effect the withdrawal of the deposits by the appointment of a new Secretary of the Treasury, no one has doubted but that the federal administration was centralized to every intent and purpose. But the argument that all that was done was in accordance with a proper theory of administration was not developed in a complete form until much later. Indeed, even today it is difficult to find precise cases in point which discuss the consequences of centralized administration.

The opinion upon the Memorial of Captain Meigs, 9 Opin. 462 (1860), marks a distinctive advance in the discussion. Congress in 1860 passed an appropriation act containing among other clauses an appropriation for the completion of the Washington aqueduct of five hundred thousand dollars, to be expended according to the plans and estimates of Captain Meigs, and under his superintendence. Captain Meigs in his memorial set forth that this appropriation was granted by Congress upon his assurance of its sufficiency and upon the express condition that it should be expended under his supervision. He added that the purpose of the grant was only on condition that its expenditure should be made under his effective control, guided by his experience, a high compliment to his ability. He then complained that by assignment of another officer to take an

14 Ark. 687; Turner v. Melony, 13 Cal. 621; State v. Gamble, 13 Fla. 9; Shaw v. Macon, 21 Ga. 280; State v. Lawrence, 3 Kan. 95; State v. Bourgeois, 47 La. Ann. 184; Magruder v. Swann, 25 Md. 173; State v. Secretary of State, 33 Mo. 293; People v. Schuyler, 79 N. Y. 189; Davis v. State, 35 Tex. 118.

important part in the superintendence of the work the War Department had permitted a clear evasion of the law, and a violation of the condition of the appropriation. Altogether this is a rather extraordinary document, as one sees.

The advice of Attorney General BLACK is without hesitation : As Commander-in-Chief of the army, it is your right to decide according to your own judgment what officers shall perform any particular duty, and as the supreme executive magistrate, you have power of appointment. Congress could not if it would take away from the President or in any way diminish the authority conferred upon him by the Constitution. This clause of the appropriation bill was not intended to appoint ('aptain Meigs as (hief Engineer of the aqueduct nor was it meant to interfere with your authority over him or any other of your military subordinates. But Captain Meigs now asserts that this which you believe to be a recommendation was in fact a condition, a most important part of the law itself. He thinks at all events that you must either let the appropriation be expended by him according to his own plan of operation, or else let the work stand still. But this is a manifest error. If Congress had really intended to make him independent of you, that purpose could not be accomplished in this indirect manner any more than if it were attempted directly. Congress is vested with legislative power; the authority of the President is executive. Neither has a right to interfere with the functions of the other. Indeed, this must be so; otherwise there would be two administrations: the administration of the President, and the administration of the Captain. Another opinion, more useful because more definite, is that in the Las Animas Grant, 15 Opin. 94 (1876). One Colonel Craig applied to the President for an order directing the Surveyor General of Colorado to issue to him a parcel of land included in the Las Animas grant in accordance with the decision of the Register and Receiver General of the Land District of that territory. The question whether the executive should take any action upon this application was referred to the Attorney General, who found that Colonel Craig was entitled according to his petition. The only question left was whether the President had any function to interfere in such a case, even under these circumstances.

Attorney General PIERREPONT advised that the President had a certain function in all such appeals. This he defined in these terms: The case may be regarded as an appeal from a decision of the head of the Interior Department touching the authority of a subordinate officer in that Department; and the point now to be considered is, can the President entertain this appeal? After much reflection I am of opinion that the appeal is one which may be entertained by the President. It presents a question concerning the authority of a subordinate executive officer over a particular subject. The President in the exercise of his general superintendence may interfere to restrain an officer from assuming an authority which does not belong to him, as he unquestionably may to compel the officer to perform a duty which does belong to him. The functions of the President, viewed with reference to such superintendence, seem to me to include as well the power of requiring various officers of the executive department of the government to keep within the proper limits of their

« AnteriorContinuar »