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."

"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 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."

"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.”

§ 694. Creation of Offices.

All offices are created either by the Constitution itself, or by Congress. The President, therefore, has not the power to create an office by directing some person to perform certain functions. However, the President as well as other executive officials may, for their assistance in executing their official duties, employ persons to perform certain specific duties. These persons have, however, legally speaking, no official powers, that is, they have no authority to issue orders to others, and for compensation for their services they must look either to contingent funds, the expenditure of which is placed in the discretion of the department employing them, or to a subsequent appropriation by Congress.

§ 695. Appointing Powers of Congress.

The Congress has no appointing power, beyond the selection of its own officers. It may create an office but not designate the one to fill it.

Congress, by acts passed in 1823, 1834, and 1849, directed the judge of the territorial court of Florida and the judge of the district court for the northern district of Florida to act as commissioners for the adjudication of claims arising under the Treaty of 1819 with Spain. This act was held unconstitutional in United States v. Ferreira" upon the ground that it attempted to impose the performance of administrative duties upon judicial officers, but the opinion further continues:

"A question might arise whether commissioners appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws. And, if they are to be regarded

613 How. 40; 14 L. ed. 42.

as officers, holding offices under the government, the power of appointment is in the President, by and with the advice and consent of the Senate; and Congress could not, by law, designate the persons to fill these offices. And if this be the construction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, everything that has been done under the Acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made, might be recovered back by the United States."

However, in a case where Congress had provided for a park commission and had provided that two of its members should be existing officers of the United States, the court said:

"It is pointed to as invalidating the act that while Congress may create an office, it cannot appoint the officer. As, however, the two persons whose eligibility it questioned were at the time of the passage of the act and of their action under it, already officers of the United States who had been heretofore appointed by the President and confirmed by the Senate, we do not think that because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted and it has frequently been the case, that Congress may increase the power and duty of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed."7

It has been held that Congress may authorize a particular pereon or official to perform a specific act, though it may not create an "office" for that person, in the sense that he is made an officer of the United States or entitled to any emolument or profit.8

Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ea. 170.

8 See Kentucky v. Dennison (24 How. 66; 16 L. ed. 717), in which it was declared that Congress might authorize, though it could not compel, state officers to perform certain duties with reference to the interstate extradition of fugitives from justice.

§ 696. Appointing Power May be Vested Only as Provided by the Constitution.

The Congress may not vest the appointment of officers else where than, as permitted by the Constitution, in the President alone, the President and the Senate or the heads of departments. In Ekiu v. United States is said:

"It was argued that the appointment of Hatch was illegal because it was made by the Secretary of the Treasury, and should have been made by the superintendent of immigration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than in the President alone, in the courts of law or in the heads of departments;' the Act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the Secretary of the Treasury; and appointments of such officers by the superintendent of immigratien could be upheld only by presuming them to be made with the concurrence or approval of the Secretary of the Treasury, his official head." 10

§ 697. Civil Service Requirements.

The question has been at times raised as to the constitutional power of Congress, while providing for the appointment of officials by the President, by and with the advice of the Senate, to require that the appointees shall be selected from certain classes of persons, namely, those who have satisfied specified educational and other tests applied by the Civil Service Commission. Though the courts have never had occasion to pass upon this point, the constitutionality of the provision would seem to be fairly certain. The same sort of rules have long been established and followed with reference to appointments in the army and navy, and the decisions of the state courts support the practice as to the appointment of state officials.

9 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146.

10 Citing U. S. Const., Art. II, Sec. II; United States v. Hartwell, 6 Wall. 18 L. ed. 830; Stanton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 Fed.

385;
Rep. 506.

§ 698. The Power of Removal.

Though the Supreme Court has never had occasion to pass squarely upon the point, executive practice, and, with the exception of the tenure of office acts of 1867 and 1869, Congressional enactment has sanctioned the view that the power to remove from federal office is constitutionally inherent in the President as to all offices to which he alone, or in conjunction with the Senate, appoints."

11

11 This question was raised and ably discussed in the first Congress. In Parsons v. United States (167 U. S. 324; 17 Sup. Ct. Rep. 880; 42 L. ed. 185) the following summary of the discussion is given:.

"On May 19, 1789, in the House of Representatives, Mr. Madison moved: That it is the opinion of this committee that there shall be established an executive department, to be denominated the department of foreign affairs; at the head of which there shall be an officer to be called the secretary of the department of foreign affairs, who shall be appointed by the President by and with the advice and consent of the Senate; and to be removable by the President.' Subsequently a bill was introduced embodying those provisions. Mr. Smith of South Carolina said that he had doubts whether the officer could be removed by the President, he apprehended that he could only be removed by an impeachment before the Senate, and that being once in office he must remain there until convicted upon impeachment; and he wished gentlemen would consider this point well before deciding it.' (1st Lloyd's Cong. Reg., pp. 350, 351.) Then ensued what has been many times described as one of the ablest constitutional debates which has taken place in Congress since the adoption of the Constitution. It lasted for many days, and all arguments that could be thought of by men - many of whom have been instrumental in the preparation and adoption of the Constitution were brought forward in the debate in favor of or against that construction of the instrument which reposed in the President alone the power to remove from office.

"After a most exhaustive debate the House refused to adopt the motion which had been made to strike out the words 'to be removed from office by the President,' but subsequently the bill was amended by inserting a provision that there should be a clerk to be appointed by the secretary, etc., and that said clerk, whenever said principal officer shall be removed from office by the President of the United States, or in any other case of a vacancy,' shall be the custodian of the records, etc., and thereupon the 1st clause, that the secretary shall be removable from office by the President,' was stricken out, but it was on the well-understood ground that the amendment sufficiently embodied the construction of the Constitution given to it by Mr. Madison and those who agreed with him, and that it was at the same time free from the objection to the clause so stricken out that it was itself susceptible to the objection of undertaking to confer upon the President a power which before he had not. The bill so amended was sent to the Senate, and