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I herewith return all papers in the case of Lieut. T. P. Kane, United States Marine Corps, together with the indorsements thereon. Respectfully, yours,


Assistant Comptroller. The SECRETARY OF THE NAVY.


A Senator of the United States is prohibited by section 6, article 1, of the

Constitution, during the time for which he was elected, from being appointed to any civil office the emoluments of which have been

increased during such time. R., a Senator of the United States, elected for a term of six years, to expire

March 3, 1895, during which time the salary of the office of minister to Mexico was increased, was, on February 23, 1895, nominated to that office, confirmed by the Senate, and commissioned by the President. He took the oath of office on March 5. Such appointment was prohibited by section 6, article 1, of the Constitution, and R.'s salary can not be paid.


September 6, 1895. The Auditor for the State and other. Departments having, under date of July 13, 1895, made an original construction of the following clause in the diplomatic and consular appropriation act of March 2, 1895 (28 Stat., 815)—

“ Envoys extraordinary and ministers plenipotentiary to Russia and Mexico, at seventeen thousand five hundred dollars each, thirty-five thousand dollars;" transmitted his decision thereon to the Comptroller for his approval, disapproval, or modification. Said decision is as follows:

“Mr. Ransom has presented accounts for salary as envoy extraordinary and minister plenipotentiary to Mexico, covering the time from and including March 4 to and including June 30, ultimo.

"It becomes my duty, as the accounting officer to whom the accounts are assigned for audit and settlement, to decide whether or not Mr. Ransom is entitled to the compensation which he claims.

"Mr. Ransom was a Senator from the State of North Carolina for the term beginning March 4, 1889, and ending March

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3, 1895. During the said term the salary of the envoy extraordinary and minister plenipotentiary to Mexico was increased by Congress from $12,000 per annum to $17,500 per annum by act making appropriations for consular and diplomatic services approved March 3, 1891. (26 Stat., 1053.) Congress has since continued to appropriate the latter sum, and at that rate salary is claimed by Mr. Ransom.

“ The Constitution of the United States provides by the second clause of section 6, article 1, that “No Senator or Pepresentative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time.” The language is plain and unmistakable and in view of the fact that the salary of the envoy extraordinary and minister pleni. potentiary to Mexico was increased during Mr. Ransom's term in the Senate he was constitutionally ineligible for appointment to the office during that term. In the words of AttorneyGeneral Brewster (17 Opin. A. G., 365), “It is unnecessary to consider the question of the policy which occasioned this constitutional prohibition. I must be controlled exclusively by the positive terms of the provision of the Constitution. The language is precise and clear, and, in my opinion, disables him from receiving the appointment. The rule is absolute, as expressed in the terms of the Constitution, and behind that I can not go, but must accept it as it is presented regarding its application in this case.'

"In determining Mr. Ransom's right to the salary, it is necessary to decide when an appointment is complete, and whether or not it was complete during his term as Senator. He was nominated by the President to the Senate February 23, and the nomination was confirmed the same day. The commission bears date of February 23. I take it the legal presumption is that the signing and sealing was on the date of the commission, unless rebutted by proof to the contrary, and this I have been unable to obtain, so that those acts were performed while Mr. Ransom was yet serving out his term as Senator. But he did not take the oath of office until March 4 and his commis. sion was not delivered to him until March 5, which days were after his Senatorial term had expired.

“In the celebrated case of Marbury v. Madison (1 Cranch, 137), which was decided at the February term, 1803, Chief Justice Marshall said:

“The acts of appointing to office and commissioning th 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 infe

rior 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.'

"And further he said: 6 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 tbe 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, neces. sarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.

6 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. * * *

" The transmission of the commission is a practice directed by convenience, but not by law. It can not therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the Executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. * * * A com. mission is transmitted to a person already appointed; and not to a person to be appointed or not, as the letter inclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. * * *

“6 The opinion is that the latest point of time which can be taken as that at which the appointment was complete, and evi. denced, was when, after the signature of the President, the seal of the United States was affixed to the commission.'

“So the opinion of the court, very clearly expressed by the Chief Justice, was that the appointment was complete at the latest wben the commission was signed and sealed; and this in the case of Mr. Ransom took place before his term as Senator had expired. The decision in the case of Marbury v. Madison has. been followed and affirmed with remarkable unanimity whenever the question has been raised, notwithstanding the severe adverse criticisms of Thomas Jefferson of the opin. ion, as well as of the chief justice who delivered it. (See Randolph's Memoirs of Jefferson, vol. 1, pp. 75, 317, 372.)

"I find all the leading commentators on the Constitution indorse the opinion. Paschal, at page 176, says of the commission of an officer confirmed by the Senate: “After being signed by the President, even before delivery, the appointment is complete.

“Rawle, at page 166 of his work, comments favorably on Marbury v. Madison, and Sergeant in his Constitutional Law, at page 358, says: “The appointment and commission are distinct. The former is complete when the commission is signed by the President. Such signature is a warrant for afixing the seal, and the Secretary of State is by law bound to affix the seal. He acts in this respect under the authority of the law, and not by the instructions of the President. Delivery is not essential to the validity of a commission; the detention of the commission does not affect its validity, nor does its loss or destruction. The copy of the record is considered as made when the authority and order to make it are given, and they are by law given when the commission is signed and sealed. Nor is acceptance of the commission necessary to vest the office.'

"Mr. Justice Story, in his work on the Constitution, quotes almost the entire opinion in the Marbury v. Madison case and with strong approbation. He says (sec. 1545):

"Another point of great importance is, when the appointmeni of any officer is to be deemed complete. It will be seen in a succeeding clause that the President is to "commission all the officers of the United States.” In regard to officers who are removable at the will of the Executive, the point is unimportant, since they may be displaced and their commissions arrested at any moment. But if the officer is not so removable the time when the appointment is complete becomes of very deep interest.

co(Sec. 1546.) * # * Neither a delivery of the commission nor an actual acceptance of the office is indispensable to make the appointment perfect.

"And in a note to section 1553, commenting on the Marbury v. Madison case, Mr. Story says:

16 The reasoning of this opinion would seem to be, in a judi. cial view, absolutely irresistible; and, as such, received at the time a very general approbation from the profession. It was, however, totally disregarded by President Jefferson, who, on this as on other occasions, placed his right of construing the Constitution and laws as wholly above and independent of judicial decision. * * * He says delivery is essential to a deed. But, assuming this to be correct in all cases, it does not establish that a commission is essential to every appointment; or that a commission must, by the Constitution, be by a deed; or that an appointment to office is not complete before the commission is sealed or delivered. The question is not whether a deerd at the common law is perfect without a delivery, but whether an appointment under the Constitution is perfect without a delivery of a commission. If a delivery were necessary, when the President had signed the commission and delivered it to the Secretary to be sealed and recorded, such delivery would be sufficient, for it is the final act required to be done by the President. But, in point of fact, the seal is not the seal of the President, but of the United States. The commission sealed by the President is not his deed, and it does not take effect as his deed. It is merely the verification of his act by the highest evidence. The doctrine, then, of deeds of private persons, at the common law, is not applicable.'

" But there are judicial decisions subsequent to the Marbury case upon this question. In the case decided in 1856 of the United States v. Le Baron (19 How., 73), which was a suit on the bond of a deputy postmaster, it became necessary to decide whether the appointment was complete before the delivery of the commission, Justice Curtis, delivering the opinion of the court, said:

"When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions his title to enter on the possession of the office is also couplete.'

* The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody. It is but evidence of those acts of appointment and qualification which constitute his title, and which may be proved by other evidence, where the rule of law requiring the best evidence does not prevent.'

"Whenever the question has arisen in the State courts there is the same concurrence in the principle laid down by Chief Justice Marshall.

"In the case of People v. Whitman (10 Cal., 14) the court declare:

"So far as regards the act of the appointing power, the appointment is complete when the commission is issued by the President

“In Conger v. Gilmer (32 Cal., 75), where the question involved was the time when an appointment made by a board of super

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