§ 211. The appointment, after the cause is at issue, of a successor to an officer who has attempted to resign cannot be given in evidence unless it be pleaded puis darrein continuance. Ibid.

§ 212. In Illinois a town officer remains in office, though he resign, until his successor is elected or appointed and qualified. United States v. Badger, 6 Biss., 308.

§ 213. When an officer has the right of resignation, he is not guilty of contempt if he resigns rather than obey a writ of mandamus. But under the Tennessee constitution of 1870 it is provided that "every officer shall hold his office until his successor is elected or appointed and qualified.” By virtue of this provision, though an officer resigns and creates a vacancy sub modo, which authorizes the election or appointment of a successor, he cannot abandon his office until that successor is qualified; and he is guilty of a contempt if he fails to obey a writ of mandamus. United States v. Justices of Lauderdale County, 10 Fed. R., 460. § 214. A civil officer has at any time a right to resign his office, and after his resignation has been received at the proper department his surety is not bound for his faithful performance. United States v. Wright, 1 McL., 509.

§ 215. When the resignation of a surveyor of customs took effect, there arose a disability under the twenty-second section of the act of March 2, 1799 (1 Stat., 644), which put an end to the authority of his deputy to act further as such. Resignation of Office,* 14 Op. Att'y Gen'l, 259.

216. The resignation of an officer while insane is a mere nullity, which is not made valid by acceptance. His re-appointment is not necessary to restore him to his position; the 'acceptance of his resignation, being made upon misapprehension of the facts, may be recalled, as for the mere correction of error, without consulting the senate. Kavanagh's Case,* 10 Op. Att'y Gen'l, 229.

§ 217. 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 hold upon, the office. Resignation of Office,* 14 Op. Att'y Gen'l, 259.

§ 218. A resignation placed in the hands of a superior officer to be forwarded in a certain event is a valid resignation if forwarded upon the stipulated contingency. That the resignation was without date is not material. Mimmack v. United States, 7 Otto, 426.

§ 219. Where the president has accepted the resignation of an officer of the army, his subsequent revocation of his acceptance does not re-instate the officer. Nothing short of a new nomination by the president and confirmation by the senate can re-instate him. Ibid.

III. APPOINTMENT AND REMOVAL.

SUMMARY — Appointment complete, when, § 220. — Affixing seal a ministerial act, § 221. — Ap-` pointment revocable, when, § 222.—When acts of heads of departments examinable, § 223.— Officers in military and naval service, § 224.- Where the term of office is fixed by law, § 225.— During recess of senate, § 226.— Appointments by circuit justices, § 227.

§ 220. An appointment to an office, which is the sole act of the president, is completely evidenced, when it is shown that he has done everything to be performed by him. The last act is the signature to the commission. The commission is complete when the seal of the United States has been affixed to it by the secretary of state. Transmission of the commission is not necessary to constitute the appointment. And where the appointee is not an officer removable at the will of the executive, withholding his commission is contrary to law. Marbury v. Madison, §§ 228-37.

221. The affixing of the great seal by the secretary of state to a commission signed by the president is a ministerial act to be performed under the authority of law, and not under the direction of the executive. Ibid.

§ 222. Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable; and the

commission may be arrested if still in the office. But when the officer is not so removable, the appointment is not revocable and cannot be annulled. Ibid.

§ 223. Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, an individual, who considers himself injured, has a right to resort to the laws of his country for a remedy. Ibid.

§ 224. The president of the United States, by and with the advice and consent of the senate, may displace officers in the military or naval service of the United States, by appointment of others in their places. The fifth section of the act of July 13, 1866, ch. 176 (14 Stat., 92), does not withdraw such power, Blake v. United States, §§ 238-40.

§ 225. Where the law fixes the term for which an office is to be held there is no power of removal, except as a consequence of impeachment; but where the law does not fix the term of office, it is held at the pleasure of the appointing power. The office of assessor of internal revenue is so held, and the appointment being made by the president of the United States by and with the advice and consent of the senate, while in the absence of legislation and precedent it would be held that the president alone had no power to remove the appointee, by the action of the first congress, and the uniform practice of the government down to this controversy, the president's power of removal has been practically admitted and acted upon, and must be held to exist. Nor does the tenure-of-office act, which was passed after the defendant had been removed from office, but whilst he was in the possession of the office, affect his right to the same; he was without legal right and an intruder. United States v. Avery, §§ 241-46.

$226. The president is authorized by section 2, article 2, of the constitution of the United States, and by section 1769, United States Revised Statutes, to fill all vacancies which "may happen'during the recess of the senate." This phrase is construed to mean I vacancies which may happen to exist during the recess of the senate," without regard to when they first arose. In re Farrow, § 247-48.

§ 227. Section 793, United States Revised Statutes, provides that “in case of a vacancy in the office of district attorney or marshal within any circuit, the circuit justice of such circuit may fill the same, and the person appointed by him shall serve until an appointment is made by the president, and the appointee is duly qualified, and no longer." Under this section the circuit justice may fill the vacancy, and the appointee holds until the president appoints the same or some other person. The term under the circuit justice then ceases, and the appointee of the president holds from that time on. The statute does not oust the power of the president to appoint under section 2, article 2, of the constitution, and section 1769, United States Revised Statutes. Ibid.

[NOTES. See $$ 249-256.]

MARBURY v. MADISON.

(1 Cranch, 137-180. 1803.)

Opinion by MARSHALL, C. J.

STATEMENT OF FACTS. At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded. These principles have been on the side of the applicant very ably argued at the bar. In rendering the opinion of the court there will be some departure in form, though not in substance, from the points stated in that argument.

In the order in which the court has viewed this subject, the following questions have been considered and decided: 1st. Has the applicant a right to the commission he demands? 2d. If he has a right, and that right has been

violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is, 1st. Has the applicant a right to the commission he demands? His right originates in an act of congress passed in February, 1801 (2 Stats. at Large, 103), concerning the District of Columbia. After dividing the District into two counties, the eleventh section of this law enacts "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

It appears from the affidavits that, in compliance with this law, a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then president of the United States, after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.

§ 228. What constitutes an appointment to office, so as to vest the office.

In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which being completed became his property. The second section of the second article of the constitution declares that "the president shall nominate, and; by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States whose appointments are not otherwise provided for." The third section declares that "he shall commission all the officers of the United States."

An act of congress directs the secretary of state to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the president, by and with the consent of the senate, or by the president alone; provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the president of the United States."

These are the clauses of the constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

1st. The nomination. This is the sole act of the president, and is completely voluntary.

2d. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and

consent of the senate.

§ 229. Commissioning officers.

3d. The commission. To grant a commission to a person appointed might, perhaps, be deemed a duty enjoined by the constitution. "He shall," says that instrument, "commission all the officers of the United States."

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.

Although that clause of the constitution which requires the president to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the con'stitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the president had commissioned officers appointed by an authority other than his

own.

It follows, too, from the existence of this distinction, that if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment, being the sole act of the president, must be completely evidenced when it is shown that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

The last act to be done by the president is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed converting the department of foreign affairs into the department of state. By that act it is enacted that the secretary of state shall keep the seal of the United States, "and shall make out and record, and shall affix the said seal to, all civil commissions to officers of the United States, to be appointed

by the president;" "provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the president of the United States; nor to any other instrument or act, without the special warrant of the president therefor."

§ 230. The affixing of the great seal by the secretary of state to the commissions of public officers is a ministerial act, to be performed under the authority of law, and not under the direction of the executive.

The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature. It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

231. After the commission of a public officer is signed by the president and sealed by the secretary of state the appointment to office is complete. Transmission of the commission is no part of the appointment.

If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office is done; and unless the appointment be then made, the executive cannot make one with the co-operation of others.

After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established.

The appointment being, under the constitution, to be made by the president personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary that the delivery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the secretary