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lower in rank than the officers specified. The distinction is not clearly marked out, and the language results in two unenumerated and contrasted groups—"all other officers” and “inferior officers ”—respecting which the discretion of Congress has proceeded without strict checks. Various officers of the Government, who are not inferior officers in the usual sense of inferiority, are nevertheless appointed under laws similar to the one before us, or whichs pecifically empower the President “solely" to appoint, as-the Librarian of Congress (sec. 88, R. S.); the Superintendent of the Military Academy, commandant of cadets and the professors (sec. 1313); the members of the Light-House Board, who must be officers of the Navy of high rank, officers of the Corps of Engineers of the Army, and civilians of high scientific attainments (sec. 1653); the commandant of the Marine Corps, who “shall be appointed by selection by the President from the officers of said corps" (act of June 6, 187+; 15 Stat., 53, 58); various special commissioners, e. g., act of March 3, 1897 (29 Stat., 624); while other commissions are appointed with the advice and consent of the Senate (the Civil Service Commission, act of January 16, 1883, 22 Stat., 103; Patent L:1w Commission, act of June +, 1898, 30 Stat., +31). Under the act of March 3, 1901 (31 Stat., 140), providing for the Louisiana Purchase Exposition, the language of section 2 is that the Commission shall be appointed by the President, and shall also be subject to removal by him, and that vacancies shall be filled in the same manner as original appointments.
I am not fully advised, but I understand that all of the foregoing officers, as to whom contirmation by the Senate is not expressly required, are in practice fully appointed by the President alone.
There are singularly few authorities on this question. In the case of United States v. Germaine (99 C. S., 508), showing that appointees of a government officer subordinate to the head of a department are not officers of the United States within the meaning of the Constitution, the court say:
• 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, foreseeing 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 specially 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."
In Story on the Constitution (vol. 2, 5th ed., sec. 1536, p. 362) the following passage occurs:
“In the practical course of the Government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers in the sense of the Constitution, whose appointment does not necessarily require the concurrence of the Senate. In many cases of appointments Congress have required the concurrence of the Senate where, perhaps, it might not be easy to say that it was required by the Constitution. The power of Congress has been exerted to a great extent under this clause in favor of the executive department. The President is by law invested, either solely or with the Senate, with the appointment of all military and naval officers and of the most important civil officer's."
Note 1 to this passage, citing authorities, says: “Whether the heads of the departments are inferior officers in the sense of the Constitution was much discussed in the debate on the organization of the department of foreign affairs in 1789. The result of the debate seems to have been that they were not."
To use a military illustration, the distinction is similar to that between general or regimental, and company officers.
The act before us indicates the line of distinction. Appointments are to be made and vacancies filled in and above certain grades either with the advice and consent of the Senate or by promotion according to seniority; whereas in certain of the lower grades, including the captaincies now in question, the President's authority to appoint is unrestrained.
I am strongly inclined to the view that this appointment was not a recess appointment" at all; that the concurrence of the Senate was not necessary, and that the action of the President alone constituted a final and complete appointment. Perhaps the reason why confirmation by the Senate was not required for this and other such appointments under the act before us was the recognition of the superior claim of volunteer officers whose service was contemporary with our recent wars and whose appointments as such officers had already been confirmed by the Senate, or who had been called into the service of the United States after appointment by the governors of the States (secs. 6, 10, act of April 22, 1898; 30 Stat., 361; secs. 12, 14, act of March 2, 1899; id., 977).
Another point remains to be considered, and that is the special restriction in this law, which does not so much affect the appointing power itself, as limit its exercise to a narrow field. I have italicized the words of the act which show to my mind that the only vacancy which the President can fill is an original vacancy; that after such vacancy has been filled by him, there is no longer an original vacancy quoad that particular place, and that any other or subsequent vacancy must be tilled by promotion or by detail. The act constantly speaks of vacancies "created or caused by this section" or vacancies "created or caused by this act." The President's authority to fill the captaincies now involved is restricted to original vacancies created by this act, and does not extend to other vacancies which may be created or caused by either section 16 or section 26, or to any other vacancies whatever, however caused or happening.
It strikes me that the chief, and probably the only, significance in the word "permanent," as used in the act, is suggested by the contrast between permanent appointments in the staff departments under the previous organization of the Army, and temporary details for staff service, which was one of the main purposes of the Army reorganization act of 1901.
On the whole, I am clearly of opinion that after the appointment and resignation of Captain A., and the detail of a captain of the line to perform the duties of the office, the
power of the President was exhausted, since that appears to be the evident purpose of the law. I therefore answer the first clause of your question in the negative, the second clause in the affirmative. Very respectfully,
P. C. KNOX. The SECRETARY OF WAR.
PORTO RICO-FRANCHISES-EXECUTIVE COUNCIL.
The franchises granted to the Compania de los Ferrocarriles de Puerto
Rico and the Port America Company by the Executive Council of Porto Rico and approved by the Governor thereof, having been amended so that the exemption from taxation granted them “shall not become effective or operative until the Legislative Assembly of Porto Rico shall by law duly authorize such exemption,” no reason exists why the President should not approve the franchises.
DEPARTMENT OF JUSTICE,
Vormber 19, 1901. Sir: In answer to your request of the 7th instant for an opinion to guide the President in the matter of approving or not approving two franchises granted by the Executive Council and approved by the Governor of Porto Rico, the first to the Compania de los Ferrocarriles de Puerto Rico and the second to the Port America Company, I have to say:
These two franchises are discussed in my opinion of August 14 last, wherein it was held that the exemptions from taxation therein provided for were beyond the power of the Executive Council of Porto Rico to make.
They have been amended and reissued, the proposed exemptions referred to being now accompanied by the following proviso:
“Provided, horrerer, That said exemption shall not become effective or operative until the Legislative Assembly of Porto Rico shall by law duly authorize such exemption.
I am of opinion that by this proviso the objection referred to has been removed, and I see no legal reason why the franchises should not be approved by the President. Respectfully,
P. C. KNOX. The SECRETARY OF STATE.
RETURNING CHINESE LABORERS-TREASURY REGULA
The question of the validity of a proposed regulation of the Treasury
Department providing that in case a Chinese laborer who has left the United States upon a valid return certificate is delayed beyond one year from the date of his departure by reason of sickness or other disability beyond his control, the consular representative of the United States shall certify to such facts before the Chinaman shall be admitted into this country, not being a question actually or presently arising in the administration of the Treasury Department, the Attorney-General
declines to express his opinion thereon. Should this proposed regulation be promulgated, and the question of its
validity arise in that Department, as upon an appeal under the act of August 18, 1894 (28 Stat., 390), the right and duty of the AttorneyGeneral to reply to the question would be untrammeled.
DEPARTMENT OF JUSTICE,
November 14, 1901. Sir: Your letter of October 25 refers to my opinion of October 10, relative to Chinese laborers who leave the United States upon valid return certificates, but whose return is delayed beyond one year from the date of departure; and requests my opinion upon the question whether the promulgation and enforcement of a regulation providing that in such case the consular representative of the United States shall certify that the cause of delay is by reason of sickness or other disability beyond the Chinaman's control, would conflict with the provisions of the treaty or laws relating to the exclusion of Chinese.
The draft of the proposed regulation which you inclose explicitly rests your authority to create the new rule upon section 8 of the act of September 13, 1888, and thereupon requires a returning laborer to present a certificate from our consular representative showing that the claim of disability preventing an earlier return has been investigated and found to be correct. Section 8 of that act provides that the Secretary of the Treasury may make such rules and regulations not in conflict with the act as he deems necessary to secure the rights of Chinese laborers and Chinese of the privileged classes, and to protect the United States against the unauthorized entry of Chinese.