Eligibility. power. 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 2, ibid. 1 Treatymaki g 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. Recess ap- 9. The President is authorized to fill all vacancies which pointments. 3, v. 14, p. 430. 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of the Senate, the office shall remain in abeyance, Sections 146, 147, 148, and 149 of the Revised Statutes were repealed by the act of January 19, 1886 (24 Stat. L., 1). 3, v. 16, p. 7. * * * 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. 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.' Sec. 1769, K. S. 431 Mar 2. 1967 e 10. The President is authorized to make out and deliver, Commissions after the adjournment of the Senate, commissions for all 1546v 14 p officers whose appointments have been advised and con- Sec. 1778, B. N. sented to by the Senate.' appointments to Treasury 154, n. 8, v. 14 p Sec. 1774, B. S. nominations, re Secretary of 11. Whenever the President, without the advice and Notification of consent of the Senate, designates, authorizes, or employs secretary of any person to perform the duties of any office, he shall Mar 2, 1967 e forthwith notify the Secretary of the Treasury thereof, and 431 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 shall, 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, 154 s. 7, v. 14, p. and to each of the Comptrollers in the Treasury, and to see. 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. 431 Mar 2. 1867, e. For statutory requirements in respect to commissions to military officers see the chapter entitled COMMISSIONED OFFICERS, CHAPTER II. PROVISIONS APPLICABLE TO THE SEVERAL EXECUTIVE DEPARTMENTS. Par. 12. Application of title. 13-19. Temporary vacancies; how filled. 20. Regulations for Executive Depart ments. 21-24. Chief clerks; disbursing clerks. 25-31. Appointment of clerks; restric tions. 32-37. Classification of clerks. 38-42. Salaries. 43-45. Leaves of absence; sick leaves. 46-48. Legal holidays. 49-51. Administration of oaths. 52, 53. Hours of labor in Executive Dements. 54-60. Contingent funds. 61. Requisitions for funds; advances, warrants. Application of provisions of this title. Sec. 158, R. S. Sec. 159, R. S. Word" 'Department." Par. 62-78. Estimates. 79-81. Procurement of supplies; contracts 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. 106, 107. Disposition of useless papers. 109. Departmental libraries. 110-116. Prosecution of claims. 12. The provisions of this title shall apply to the following Executive Departments: First. The Department of State. Second. The Department of War. Seventh. The Department of the Interior. 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.' 1The titles so numbered in the Revised Statutes are the ones above referred to. how temporarily d July 23, 1, e. 13. In case of the death, resignation, absence, or sick- Vacancies, Dess of the head of any Department, the first or sole assistant thereof shall, unless otherwise directed by the 19 p. President, as provided by section one hundred and seventynine, perform the duties of such head until a successor is appointed, or such absence or sickness shall cease. subordinate of 14. In case of the death, resignation, absence, or sick-Vacancies in Dess of the chief of any Bureau, or of any officer thereof, July 23, 1868, e. whose appointment is not vested in the head of the Depart-2, v. 15, p. Lent. 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 suc President. 227, s. 3, v. 15, p. 1870, c. 150, ® 2, v. cessor is appointed or such absence or sickness shall cease." Discretionary 15. In any of the cases mentioned in the two preceding authority of the Sections, except the death, resignation, absence, or sick-July 23, 1968 c. ness of the Attorney-General, the President may, in his June 22, discretion, authorize and direct the head of any other De-16, p. 162 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.' Sec. 179, K. S. General of the be designated by of President to per form duties of Secretary of War. 16. The President may authorize and direct the Com-Commanding manding General of the Army or the chief of any military Army, etc.. may Bureau of the War Department to perform the duties the Secretary of War under the provisions of section hundred 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 Section 179, Revised Statutes, paragraph 15, post. *See XIX Opin. Att. Gen., 503. one Sections 177 and 178, Revised Statutes, paragraphs 13 and 14, ante. 22, p. 238. '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. so designated by reason of his temporarily performing such duties. Act of August 5, 1882 (22 Stat. L., 238). Temporary ap- 17. A vacancy occasioned by death or resignation must pointments limited to thirty not be temporarily filled under the three preceding sections July 23, 1868, c. for a longer period than thirty days. Act of February 6, 227, 8. 3. v. 15, P. 1891 (26 Stat. L., 733). days. p. Sec. 180, R. S. temporary ap July 23, 1868, c. 168. 168; Feb. 6, 1891, v. 26, p. 733. Restriction on 18. No temporary appointment, designation, or assignpointments. ment of one officer to perform the duties of another, in the 227, s. 2, v. 15, p. cases covered by sections one hundred and seventy-seven Sec. 181, B. S. and one hundred and seventy-eight,' shall be made otherwise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate. Extra compensation disallowed. July 23, 1868, c. 168. 19. An officer performing the duties of another office, during a vacancy, as authorized by sections one hundred 227, s. 3, v. 15, p. and seventy-seven, one hundred and seventy-eight [Rev. Sec. 182, R. S. Stat.], and one hundred and seventy-nine [ibid.], is not by reason thereof entitled to any other compensation than that attached to his proper office. Departmental regulations. 4. v. 1, p. 28; Sept. p. 68; Aug. 7, REGULATIONS FOR EXECUTIVE DEPARTMENTS. 20. The head of each Department is authorized to preJuly 27, 1789, c. scribe regulations, not inconsistent with law, for the gov15, 1789, c. 14, v. 1, ernment of his Department, the conduct of its officers and 1849, c. 7, v. 1, p. clerks, the distribution and performance of its business, c. 12, v. 1. p. 65; and the custody, use, and preservation of the records, pa335, v. 17, p. 283; pers, and property appertaining to it." 49; Sept. 2, 1789, June 8, 1872, c. Apr. 30, 1798, c. 35, v. 1, p. 553; June 22, 1870, c. 150, s. 8, v. 16, p. 163; Mar. 3, 1849, c. 108, v. 9, p. 395. Sec. 161, R. S. 1 Sections 177 and 178. Revised Statutes: paragraphs 13 and 14, ante. "The President speaks and acts through the heads of the several Executive Departments in relation to subjects which appertain to their respective duties. Wilcox . Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755. It is the general theory of departmental administration that the heads of the Executive Departments are the executors of the will of the President. X Opin. Att. Gen., 527. As a general rule the direction of the President is to be presumed in all instructions and orders issuing from the competent Department. VII id., 453. Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express reference to the direction of the President. VII id., 453. The duties of the heads of the several Executive Departments are derived, in part, from the Constitution, and are, in part, imposed by statute. In the execution of the former they act as the representatives of the President, to whom they are responsible for their correct performance. For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory rules and regulations as Congress may see fit to impose. (See Marbury v. Madison, 1 Cr., 137, and par. 1, note 1.) The executive power is vested in a President, and so far as his powers are derived from the Constitution he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power, but it by no means follows that every officer in every branch of that Department is under the exclusive direction of the President. * * * There are certain political duties imposed upon many officers in the Executive Department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think |