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removal, death, resignation, or inability, then the Post-
master-General, or if there be none, or in case of his re-
moval, death, resignation, or inability, then the Secretary
of the Navy, or if there be none, or in case of his removal,
death, resignation, or inability, then the Secretary of the
Interior, shall act as President until the disability of the
President or Vice-President is removed or a President shall
be elected: Provided, That whenever the powers and duties Proviro.
of the office of President of the United States shall devolve
upon any of the persons named herein, if Congress be not
then in session, or if it would not meet in accordance with
law within twenty days thereafter, it shall be the duty of
the person upon whom said powers and duties shall de-
volve to issue a proclamation convening Congress in extra-
ordinary session, giving twenty days' notice of the time
of meeting. Act of January 19, 1886, 24 Stat. L., 1.

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. Logan 1. The County, 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. Ü. S. 2. Peralta, 19 How., 343, 347; Delassus v. U. S., 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. r. Stimpson, 14 Pet., 448.

Tenure.—The power to appoint includes the power to remove, when the Constitution has not otherwise provided, and when the laws of Congress have not fixed a tenure of office. Ex parte Hennen, 13 Pet., 230; Parsons 1. U. S., 167 '. S., 324; U.S. 1. Avery, Deady, 201. 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. 1. Perkins, 116 U. S., 483.

Resignation.-- That a public office may be vacated by resignation is established by long and familiar practice, and is recognized 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 parol, 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 holl upon, the oflice. XIV Opin. Att. Gen., 259.

Removal.-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. In re Hennen, 13 Pet., 230, 259. It was the purpose of Congress, in the repeal of the tenure of ottice sections of the Revised Statutes (secs. 1767-1775, Rev. Stat., repealed by act of March 3, 1887, 24 Stat. L., 500), to again concede to the President the power of removal, is 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 r. U. S., 167 U. S., 324. See, also, ninety-ninth article of war, secs. 1230, 1228, Rev. Stat., and articles 36 and 37 of articles for the government of the Navy; VI Opin. Att. Gen., 4; XII, ibid, 421; XV, ibid, 421; IV, Compt. Dec., 58, 466, 601, and Blake r. U. S., 103 U. S., 227.

Eligibility. Sec. 2, ibid.

Treatymaki g power.


6. The preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named, and such as are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively. Section %, ibid.

7. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds

of the Senators present concur; and he shall nominate, Appointing and by and with the advice and consent of the Senate,

shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but 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. Constitution, Art. II, sec. 2, par. 2.

8. The President shall have power to fill up all vacancies that may happen duing the recess of the Senate, by granting commissions which shall expire at the end of their next session. Ibid., par. 3.

9. The President is authorized to fill all vacancies which pointments.

may happen during the recess of the Senate by reason of death, or resignation, or expiration of term of office, by

granting commissions which shall expire at the end of their Mar. 2, 1867, s. next session thereafter, and if no appointment, by and Apr. 5, 1869, s. with the advice and consent of the Senate, is made to an

office so vacant or temporarily filled during such next session of the Senate, the office shall remain in abeyance,

Recess a p.

3, v. 14, p. 430.

3, v. 16, p. 7.



Sections 146, 147, 148, and 149 of the Revised Statutes were repealed by the act of January 19, 1886 (24 Stat. L., 1).

? Public office.--An office is a public station, or employment, conferred by the appointment of Government. The term embraces the ideas of tenure, emolument, and duties. * The duties are continuing and permanent, not occasional and transitory, and are defined by rules prescribed by Government and not by contract. * * A Government office is different from a Government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The ternis 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. 1. 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. l'. 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 U.S. v. Mouat, 124 U. S., 303, 307; U. S. v. Germaine, 99 C. S., 508, 510.

See. 1769, R. S.

Mar. 2, 1867, c.

Notification of

154, s. 8, v. 14, p.

without any salary, fees, or emoluments attached thereto, until it is filled by appointment thereto by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office.'

10. The President is authorized to make out and deliver, Commissions. after the adjournment of the Senate, commissions for all 154, s. 6, v. 14, p. officers whose appointments have been advised and con- Sec. 1773, R. S. sented to by the Senate.

11. Whenever the President, without the advice and consent of the Senate, designates, authorizes, or employs secretary of any person to perform the duties of any office, he shall Mar. 2, 1867, c forth with notify the Secretary of the Treasury thereof, and 431.

Sec. 1774, R. S. the Secretary of the Treasury shall thereupon communicate such notice to all the proper accounting and disbursing officers of his Department. The Secretary of the Senate Notification of sball, at the close of each session thereof, deliver to the jections, etc., to Secretary of the Treasury, and to each of the Assistant Treasury. Secretaries of the Treasury, and to each of the Auditors, 151, s. 7, v. 14, p. and to each of the Comptrollers in the Treasury, and to Sec. 1775, B. S. the Treasurer, and to the Register of the Treasury, a full and complete list, duly certified, of all the persons who have been nominated to and rejected by the Senate during such session, and a like list of all the offices to which nominations have been made and not confirmed and filled at such session.

Secretary of

Mar. 2, 1867, c.

For statutory requirements in respect to commissions to military officers see the chapter entitled COMMISSIONED OFFICERS.




12. Application of title.
13–19. Temporary vacancies; how filled.
20. Regulations for Executive Depart-

21–24. Chief clerks; disbursing clerks.
25–31. Appointment of clerks; restric-

tions. 32-37. Classification of clerks. 38–42. Salaries. 43–45. Leavey of absence; sick leaves. 46–48. Legal holidays. 49-51. Administration of oaths. 52, 53. Hours of labor in Executive De

ments. 54-60. Contingent funds. 61. Requisitions for funds; advances,


62–78. Estimates.
79–81. Procurement of supplies; con-

tracts and purchases.
82. Purchase of stationery.
83–85. Inspection of fuel in the District

of Columbia. 86-91. Annual reports. 92. The Official Register. 93–102. Miscellaneous requirements. 103–105. Destruction, forgery, etc., of

public records. 106, 107. Disposition of useless papers. 108. Books and papers to be open to ex

amination of accounting officers of

the Treasury.
109. Departmental libraries.
110-116. Prosecution of claims.

Application of provisions of this title.

See, 168, R. S.

Sec. 159, R. S.

12. The provisions of this title shall apply to the following Executive Departments:

First. The Department of State.
Second. The Department of War.
Third. The Department of the Treasury.
Fourth. The Department of Justice.
Fifth. The Post-Office Department.
Sixth. The Department of the Navy.

Seventh. The Department of the Interior.
Word “Depart- The word “ Department” when used alone in this title,

and titles five, six, seven, eight, nine, ten, and eleven, means one of the Executive Departments enumerated in the preceding section.'


The titles so numbered in the Revised Statutes are the ones above referred to.

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Vacancies in subordinate of fices.


13. In case of the death, resignation, absence, or sick- Vacancies; ness of the head of any Department, the first or sole filled

July 23, 1868, c. assistant thereof shall, unless otherwise directed by the 27. s. 1, v. 15, p. President, as provided by section one hundred and seventy- Sec. 177, R. S. nine,' perform the duties of such head until a successor is appointed, or such absence or sickness shall cease.

14. In case of the death, resignation, absence, or sickness of the chief of any Bureau, or of any officer thereof,

July 23, 1868, c. whose appointment is not vested in the head of the Depart-3, s. 2, v. 15, p. ment, the assistant or deputy of such chief or of such Sec. 178, R. S. officer, or if there be none, then the chief clerk of such Bureau, shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such chief or of such officer until a successor is appointed or such absence or sickness shall cease.”

15. In any of the cases mentioned in the two preceding anthority of the sections, except the death, resignation, absence, or siek- July 23, 1868, c. ness of the Attorney-General, the President may, in his 16s; Puno; discretion, authorize and direct the head of any other De-16, p. 162.

Sec, 179, R. S. partment or any other officer in either Department whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease.

16. The President may authorize and direct the Com-Commanding manding General of the Army or the chief of any military Army.ets may Bureau of the War Department to perform the duties of President to per the Secretary of War under the provisions of section one bundred and seventy-nine of the Revised Statutes, and Aug 5, 1882, v. section twelve hundred and twenty-two of the Revised Statutes shall not be held or taken to apply to the officer

1870, c. 150, 8.2, v.

form duties of Secretary of War.

22, p238.

1 Section 179, Revised Statutes, paragraph 15, post.
* See XIX Opin. Att. Gen., 503.
3 Sections 177 and 178, Revised Statutes, paragraphs 13 and 14, ante.

* The vacancy occasioned by the retirement of the head of a staff department may be temporarily filled by an ad interim appointment, under the authority conferred by section 179. Revised Statutes. XIX Opin. Att. Gen., 500.

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