thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of the time of meeting. Sec. 1, Act of Jan. 19, 1886 (24 Stat. 1). 6. Same-Limitations. 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. Sec. 2, id. Presumptions as to official acts. The acts of an officer to whom a public duty is assigned, within the sphere of that duty, are prima facie within his power. (U. S. v. Arredondo, 6 Pet., 691; U. S. v. Clarke, 8 id., 436, 452; Percheman v. U. S., 7 id., 51; Delassus r. U. S., 9 id., 117, 134; Strother r. Lucas, 12 id., 410, 438; U. S. v. 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 r. 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. (U. S. v. 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. v. 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 v. U. S., 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, 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 resig. nation 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 cperates 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. (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 office sections of the Revised Statutes (secs. 1767-1775, Rev. Stat., 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. 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, id., 421; XV, id., 421; IV Cmp. Dec., 58, 466, 601, and Blake v. U. S., 103 U. S., 227.) 7. Treaties-Appointment of officers. 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, and by and with the advice and censent 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.1 Constitution, Art. II, sec. 2, par. 2. 8. Recess appointments. - The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Id, par. 3. 9. Commissions. - The President is authorized to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointments have been advised and consented to by the Senate. Sec. 1773, R. S. 10. Notification of appointments. - Whenever the President, without the advice and consent of the Senate, designates, authorizes, or employs any person to perform the duties of any office, he shall forthwith notify the Secretary of the Treasury thereof, and the Secretary of the Treasury shall thereupon communicate such notice to all the proper accounting and disbursing officers of his Department. Sec. 1774, R. S. 11. Notification of rejections and confirmations. - The Secretary of the Senate shall, at the close of each session thereof, deliver to the Secretary of the Treasury, and to each of the Assistant Secretaries * ** * * 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 terms 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. v. 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. v. 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 U. S., 508, 510; U S. v. Hendee, 124 U. S., 309; U. S. v. Smith, 124 U. S., 525.) Noncommissioned officers are not officers in the sense in which that term is generally used. (Babbitt v. U. S., 16 Ct. Cls., 202.) * For statutory requirements in respect to commissions to military officers see chapter entitled Commissioned officers. of the Treasury, and to each of the Auditors, and to each of the Comptrollers in the Treasury, and to 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. Sec. 1775, R. S. 12. Details of clerks to Executive Office. - Employees of the Executive Departments and other establishments of the executive branch of the Government may be detailed from time to time to the office of the President of the United States, for such temporary assistance as may be necessary. Act of June 22, 1907 (34 Stat. 401). |