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visors was complete, the court, commenting approvingly on the Marbury case, say:

6In that case the appointment was made by the President of the United States, and it was held that the appointment was complete when the President had signed the commission. This must be so for various reasons. Until the last act has been performed the whole matter is in fieri, and within the control of the person or persons by whom tne appointment is made.?

"In the case of Keesser v. Fitzsimmons et al. (68 N, Y., 514, 518) the opinion of the court was that

66. The written appointment signed by the officer, or any paper signed by him showing that he has made the appointment, is sufficient, and the commission need not be delivered. There is no statute requiring its delivery, and there is nothing in the nature of an appointment or a commission which makes delivery to the person appointed a prerequisite to its validity. Unless the statute requires something more to be done, when the officer has executed the writing, with the intention by that act to make the appointment, and bas thus discharged his whole duty in reference thereto, the appointment is a completed act.'

“And in Babcock v. Murray 170 N. Y., 521, 526)— 66 • The act of signing the commission completes the appointinent as well as perpetuates the evidence of it.''

Coogan v. Barbour (53 Conn., 76), decided in 1885, is to the same effect, as are nearly all the cases in the State courts that I have found touching on this question, the exceptions being those which hold the appointment complete before the commis. sion had even been signed, as in the case of Johnston v. Nelson (2 N. H., 202), in which Judge Woodbury says:

666 On general principles the choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable,

“No opinion of an Attorney-General is found to conflict with the rule in Marbury v. Madison as to the time of the appointment, and one is found specifically concurring, to wit, Attorney-General John Nelson, in an opinion given to the Secretary of the Navy August 9, 1843 (4 Opin. A. G., 217), in which he says:

66. The nomination is not an appointment; nor is that nomination followed by the signification of the advice and consent of the Senate, that it should be made sufficient of themselves to confer upon a citizen an office under the Constitution. They serve but to indicate the purpose of the President to appoint and the consent of the Senate tbat it should be effectuated; but they do not divest the Executive authority of the discretion to withhold the actual appointment from the nominee. To give a public officer the power to act as such, an appointment must be made in pursuance of the previous nomination and advice and consent of the Senate, the commission issued being the evi. dence that the purpose of appointment signified by the nomination has not been changed.'

“He then refers to the Marbury v. Madison case as governing the question. Attorney-General Miller (19 Opin. A. G., 410) fixes the time of appointment upon the authority of the same case.

" It has been suggested that in a case where the officer is removable at the will of the President the same rule may not apply, but I fail to see any reason why it should not. In the case of a removable officer the time of appointment is of no consequence so far as the right of removal goes, as it can not affect that right one way or the other. The following from the opinion of Attorney-General Stanbury (12 Opin. A. G., 304) is applicable in this connection:

" It is very certain that the appointment of an officer by the President, by and with the advice and consent of the Senate, does not of itself confer the office. The President has, notwithstanding, a locus penitentiæ, and may withhold the commission or the delivery of the commission to the officer. But if the commission be signed and sealed, and the office be of a character not removable by the President, in that case the President's right over the office no longer exists, according to the Supreme Court, for the right is vested and is irrevocable. But where, as in this case, the officer belongs to a class removable at any time by the President, then it would seem that the commission, though made out, may be arrested in the office, and the right to the office does not vest. The effect is a revocation of the appointment.'

"Thus it is seen that the testimony is overwhelming. The Supreme Court in two cases, the great jurists who have critically examined the Constitution, those Attorneys-General who have considered the question at all, and the courts of the States, all concur in the opinion that the appointment is complete, at the latest, when the commission is signed and sealed. Therefore, as Mr. Ransom's commission was signed and sealed on February 23, before his term as Senator had expired, I can pot escape the conclusion that the constitutional prohibition contained in section 6, Article I, prevailed to prevent his appointment as envoy extraordinary and minister plenipoten. tiary to Mexico, and that therefore he is not entitled to salary as such.

“Mr. Ransom, however, took the oath of office, the commission was delivered to him, and he has been performing the duties of the office with the consent and approval of the State Depart. ment. He has also regularly drawn for the salary of the office, and his drafts have been paid npon requisitions of the State Department. It would seem that he has occupied the position of a de facto officer.

“The doctrine announced in 2 Kent. Com., 295, salary and

fees are incident to the title,' has been almost universally accepted to prohibit the payment of compensation to de facto otticers. But where the otticer has been paid the compensation it has been held that it can not be recovered back.

-ov In the case of Badeau v. United States (130 U. S., 439), Chief Justice Fuller, in delivering the opinion of the court, says:

66 As between individuals, where money has been paid under a mistake of law, it can not be recovered back, but it is denied that this rule is applicable to the United States, upon the ground that the Government is not bound by the mistakes of its officers, whether of law or of fact. * * * But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex aequo et bono, he ought to return.'

“Upon the authority of this case Mr. Ransom will be allowed in settlement whatever amount he has received toward pay. ment of the salary. But, in accordance with section 8 of the act of July 31, 1894, the account will be suspended and this decision reported to the Comptroller of the Treasury for his action."

Without expressing any opinion upon the question whether an appointment is complete before the execution of the commission, or only when the commission is signed and sealed, or, at the very latest, when such commission is delivered with the intention of then making the appointment, upon the facts presented by the Auditor in the foregoing opinion, that opinion is approved.





Sections 3711 and 3713 of the Revised Statutes, relating to the weighing

and inspection of fuel, have, by long practice, been held applicable to fuel purchased for the use of the government of the District of Columbia, and that practice will be continued.


September 6, 1895. GENTLEMEN: I am in receipt of yours of the 23d ultimo, asking whether section 3711 of the Revised Statutes is applicable to the government of the District.

Section 3711, as amended by the act of March 2, 1895 (28 Stat., 808), is as follows:

"It shall not be lawful for any officer or person in the civil, military, or naval service of the United States in the District of Columbia to purchase anthracite or bituminous coal or wood for the public service except on condition that the same shall, before delivery, be inspected and weighed or measured by some competent person, to be appointed by the head of the Departmentor chief of the branch of the service for which the purchase is made from among the persons authorized to be employed in sach Department or branch of the service.

"Provided, That the weigher and measurer of the Navy Department may be appoiuted outside of said Department, and that such weigher and measurer shall give bond and be paid as heretofore provided by law. The person appointed under this section shall ascertain that each ton of coal weighed by him shall consist of two thousand two hundred and forty pounds, and that each cord of wood to be so measured shall be of the standard measure of one hundred and twenty-eight cubic feet. Each load or parcel of wood or coal weighed and measured by him shall be accompanied by his certificate of the number of tons or pounds of coal and the number of cords or parts of cords of wood in each load or parcel.”

Section 3713 provides: " It shall not be lawful for any accounting officer to pass or allow to the credit of any disbursing officer in the District of Columbia any money paid by him for purchase of anthracite or bituminous coal or for wood, unless the voucher therefor is accompanied by a certificate of the proper inspector, weigher, and measurer that the quantity paid for has been determined by such officer."

Comptroller Lawrence, in a note to 2 Lawrence Comp. Dec., 127, held that sections 3711-3713 related to the Commissioners of the District of Columbia, and, as they are disbursing officers in the District of Columbia,' it would seem that they come specifically within the prohibition contained in section 3713, Revised Statutes.

As an original proposition, the question might not be altogether free from doubt, but the decision of Comptroller Law. rence, which has been followed since 1881 and which it can not be said is not justified by the language of the statute, should be continued in practice. Respectfully, yours,




Section 313 of the Revised Statutes relating to the District of Columbia,

providing for the disposition of fines, penalties, and forfeitures imposed in the criminal court of the District, does not apply to a fine imposed for a violation of the postal laws, the latter being required by section 4059 of the Revised Statutes to be paid into the Treasury for the use of the Post-Office Department.


September 6, 1895. SIR: I am in receipt of yours of the 19th ultimo stating that the collector of taxes of the District of Columbia reported in his daily report of July 15, 1895, a collection of $68.60 as fines from criminal court United States cases; that of this amount $50 was paid as a fine for a violation of section 3891 of the Revised Statutes, relating to the postal service. You state that you have decided that this fine belongs to the revenue of the District of Columbia, under the provisions of section 313 of the Revised Statutes relating to the District of Columbia, and is not part of the revenue of the postal service under sec. tion 4059 of the Revised Statutes, and accordingly certify this decision, under the provisions of section 8 of the act of July 31, 1894 (28 Stat., 208), for my approval or disapproval.

I have given the matter careful consideration, and, while the question is not free from doubt, I am of the opinion that this fine is a part of the postal revenue and not of the revenue of the District of Columbia.

Section 4059 of the Revised Statutes is as follows:

“All penalties and forfeitures imposed for any violation of law affecting the Post-Office Department for its revenue or property shall be recoverable, one-half to the use of the person informing and prosecuting for the same, and the other half to be paid into the Treasury for the use of the Post Office Department, unless a different disposal is expressly prescribed. All fines collected for violations of such laws shall be paid into the Treasury for the use of the Post-Office Department."

Section 313 of the Revised Statutes relating to the District of Columbia is as follows:

"All moneys derived. from fines, penalties, and forfeitures imposed in the District for violations of the laws of the United

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