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APPOINTMENT AND REMOVAL OF INSPECTORS OF CUSTOMS.

No person can be appointed to the office of permanent inspector of customs, except with the

approbation of the Secretary of the Treasury. The only true construction, under the constitution of the acts providing for inspectors, is, that

the name of the individual proposed to be appointed shall be -submitted to the Secretary of the Treasury; and that no one shall be appointed unless approved by him Congress had no power to vest the appointment of these inferior officers in collectors ; and a

construction of law to that effect would be void. It could only vest the power in the President, heads of departments, or judicial tribunals ; and it has vested the power of appointing inspectors of cusioms in the Secretary of the Treasury. Although the collector may suggest, nominate, and recommend the appointment of perma

nent inspectors proceeds from the Secretary, and is his act, and not that of the collector. For the doctrine generally upon the power of appointment and removal of inspectors, see

opinions of Attorneys General Wirt and Berrien, and the case of Marbury vs. Madison, in Ist Cranch's Reports, 137, 155. OFFICE OF THE ATTORNEY GENERAL,

March 24, 1843. Sır: I have considered the questions propounded in your letter of the 20th instant. They are as follows:

“Ist. Is the employment of any particular person as an inspector, &c., by the collector, with the approbation of the Secretary of the Treasury, an appointment by a head of a department, within the meaning of the constitution ?

“2d. If so, is the appointment the act of the Secretary, or of the col. lector?

“3d. If it be constitutionally the act of the Secretary, is a nomination by the collector essential to enable the former to appoint any person; and can Congress vest the appointment in the Secretary and collector jointly?

" 4th. Can an inspector, &c., be removed by the collector without the assent of the Secretary?

" 5th. Can the Secretary remove an inspector without the assent of the collector ?

“ 6th. Is an appointment by a collector of an inspector, &c., of any validity until approved ?

“ In the last, and indeed in all these questions, I refer to the perma. nent inspectors, and not to those authorized to be occasionally employed.

The opinion of my predecessors, Mr. Wirt and Mr. Berrien, to which I had the honor of calling your attention, in conversation some days ago, do not meet the true difficulty of the case under the constitution.

They do, however, both concur in establishing this point-that the inspectors contemplated by the act of 1815, and indeed all permanent inspectors, are, to all intents and purposes, officers of the government of the United States, not mere occasional deputies, employés, or agents of the collectors. Under the act of 1799, which is, in this respect, still of force, so far as subsequent enactments are not wholly inconsistent with it, it is plain that the collectors of the customs were authorized to appoint occasional inspectors whose services were demanded by extraordinary exigencies in the service. You very properly distinguish between those and the permanent inspectors expressly recognised as public officers by the act of 1815, &c.

Although the constitutional question had evidently not occurred to Mr. Wirt, yet he is of opinion that the better construction of the 21st section of the collection law (Laws U. S., vol. 3, p. 155) is, “ that the name of the individual proposed to be appointed shall be submitted to the Secre

tary of the Treasury; and that no one shall be appointed who shall not be approved by hiin." This, I have no doubt, is the true, and indeed the only possible construction, under the constitution.

Congress has power to vest the appointment of these inferior officers in the heads of departments. It has no power to vest it in collectors. Therefore the law, if it meant that, would be void. Therefore, again, the law must not be interpreted to mean that, if it can be interpreted to mean anything else. Then, is it susceptible of any other interpretation ? Clearly, as Mr. Wirt shows, it may very well mean, that the nomination of each particular inspector, &c., shall be approved by the Secretary of the Treasury.

But you ask, Is this the appointment of the Secretary, or of the collector? I answer, it niust be the appointinent of the Secretary, or it is null and void under the constitution. No points of our fundamental law are inore difficult than those involved in this whole subject of appointments. Witness the questions discussed in Marbury vs. Madison, 1 Cr., with Mr. Jefferson's able and strenuous objections to the law of that case. Witness the debate on the power of removal in 1789, and the matters still treated as undecided in the elementary treatises of Story and others. My own opinion on the points now propounded is, notwithstanding, entirely decided. I think Congress has no power whatever to vest the appointment of any employé, coming fairly within the definition of an inferior officer of the government, in any other public authority but the Presi. dent, the heads of departments, or the judicial tribunals.

But may they not vest the appointment in either of these, to be exer. cised in a certain manner, with certain precautions or limitations, for a certain term, &c.? I think they may. Would it be a fair constitutional exercise of that power to require that the Secretary should make an appoint:nent out of a certain number of nominees proposed by a collector, or only on a previous nomination by the collector?

If this were a question entirely unprejudiced by practice and opinion, I should hesitate before I answered it in the negative, but I consider it to be too late to start a doubt upon the subject.

The result is, that permanent inspectors can be regularly appointed only by the Secretary of the Treasury on the nomination of the collector; and the inspectors now in office must be presumed to have been appointed in this form. As to their acts, I do not apprehend any great difficulty. They have acted with the consent of their superiors as officers, and would be so held by the courts to all intents and purposes. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. John C. SPENCER,

Secretary of the Treasury.

APPOINTMENT AND REMOVAL OF INSPECTORS OF CUSTOMS.

A collector of customs cannot remove a permanent inspector without the assent of the Secre

tary of the Treasury; but the Secretary of the Treasury has the power, in a proper case,

to displace an inspector without the consent of the colector. But, as the collector's opinion has been required in putting inspectors in, and that officer has

been uniformly consulted in putting them out, it is too late to act on the mere summum jus of the case.

OFFICE OF THE ATTORNEY GENERAL,

Marih 24, 1943. SIR: I thought the general principles laid down in my opinion covered all the grounds embraced by your questions sufficiently for all practical purposes; but I can perceive, as you remark, room for misconstruction on one or more points. "I answer the 4th question as Mr. Wirt does: A collector cannot remove a permanent inspector, &c., without the assent of the Secretary.

The 5th is a much more difficult point; but it is my opinion, on the grounds relied on by Mr. Madison in the debate of 1789, that, as the ap. pointing power is clearly only in the Secretary, so, in the absence of all positive legislation to the contrary, the Secretary has the power to displace without the consent of the collector. I say in the absence of any express legislation of Congress on the subject; because Mr. Justice Story, in his Commentaries, (vol. 3, p. 386,) seems to consider it as settled law " that so far as Congress constitutionally possess the power to regulate and delegate the appointment of inferior officers, so far they may prescribe the term of office, the manner in which and the persons by whom the removals as well as the appointments to office shall be made;" and for this is cited Marbury vs. Madison, 1 Cr., 137, 155.

I have not the book at hand, but, at any rate, it was but obiter dictum in that case. However, I am not prepared positively to dissent from any part of this very sweeping proposition. The question you propound is embraced in it, and is one of exceeding great difficulty, not only on prin. ciple independent of authority and practice, but more especially on what, ever since 1789, has been the settled course of the government under all administrations, sanctioned repeatedly and expressly in the legislation of Congress itself.

Yet if there were an absolute necessity to give an opinion on this 5th question, I should feel bound to say that I think, on the rigor of legal principles the Secretary has the power to displace. But is this question entirely unprejudiced by opinion, by the practice of the government, and by what may be in ferred, and what evidently has been inferred, to be the spirit of our legislation on this subject? Although I have no doubt Mr. Wirt is right in preferring the construction which I adopt, that the approbation of the Secretary must be sought to each nomination; and although it is further my opinion that this approbation is, under the constitution, the very appointment; yet, since Congress has seen fit to require the collector's opinion in putting these officers in, and since he has uniformly been consulted, at least, in putting them out, I hold it to be too late to act on the mere summum jus, especially in a matter so difficult, and should be unwilling to advise a Secretary, except in a strong case, to eject any officer without the consent of the collector. Yet I give it as my judgment, that in a proper case he has the authority and the discretion to do so at any rate until his power in this particular be expressly restrained by act of Congress-admitting, hypothetically, that Congress is competent to restrain the Executive in the exercise of such a function, The power of the President as head of the government, under the con

stitutional injunction to see the laws faithfully executed, stands, I incline
to think, in a different category.
I have the honor to be, sir, your obedient servant,

H. S. LEGARE.
Hon. John C. SPENCER,

Secretary of the Treasury.

SALES OF THE CHICKASAW RESERVES.

1

The lands of the Chickasaws were put on the same foot as the public domain, and are there

fore not subject to private entry until the same shall have been proclaimed to be in market.
The great fundamental principle of our land sales is, that private entries shall never be permit-

ted until after the proclamation is made that the lands are in market.
The reason of this rule applies in all cases where, from any cause, land has been temporarily

taken out of commerce.
The words of the 10th article of the treaty, concerning the gradual fall of the price, did not

contemplate a fall to be regulated by mere lapse of time.
The plain sense of the provision is, that lands, after having, with due notice, been one year
exposed in open market, at a fixed price, may be for another year offered at a reduced price,

and so on.
But private entries are not in order until the land shall have been proclaimed to be, and shall

have been, properly put in market. Lands which have never been in commerce at all, can-
not be treated, at the end of the term designated in the treaty with the Indians, as lands for
which nobody would bid.
OFFICE OF THE ATTORNEY GENERAL,

March 29, 1943. Sir: I have considered the case of the Chickasaw reservations, submitted to you by the Commissioner of the General Land Office on the 6th instant, together with some views of the subject presented to me in wri. ting by Mr. Senator Walker on behalf of the State of Mississippi, as well as other papers connected with the matter. I confess that I concur fully in the conclusions of the Land Office. Were it a new question I should hesitate long before I pronounced the regulations of that office, as set forth by the Commissioner, unauthorized or wrong. The great fundamental principle of our land sales is, that private entries shall never be permitted until after proclamation is made that the lands are in the market. The sense of this rule is too obvious to need enforcing; but it is quite clear that the reason of the law applies, whenever, for any cause whatever, land has been temporarily taken out of commerce, as if, for instance, it has been reserved by mistake for military or other public purposes: but this is no longer an open question in this office. My predecessor, Mr. Butler, in an opinion cited by the Commissioner, laid down the rule; and even if I were disposed to dispute its reasonableness, (which I certainly am not,) I should not now venture to shake its authority. The regula. tions of the Land Office, in the premises, must be considered as agreeable to law so far as the executive department is concerned. I ought to add that, by the express provisions of the treaty with the Chickasaws, the sale of their land is put on precisely the same foot as that of the domain of the United States. As to the words of the 10th article of the treaty, (1834,) the gradual fall of price contemplated was not meant to be regulated by mere lapse of time. Time clearly could not be of the essence of the thing. The plain sense of the provision is, that land, after having, with due notice, been one whole year exposed in open

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market for sale at a fixed price, shall not have fetched it, it shall then be for another year offered at a reduced price, and so on. But how unrea: sonable, and, even in the case of a cestui que trust, unconscionable it would be, to say that land which has not been so exposed in market, for which nobody could have made a bid, because it was not in commerce at all, should be treated, at the end of the term designated in the treaty, as land for which nobody would bid. Even a statute of limitations, which is matter of positive legislation and strictissimi juris, is not considered as running when the courts of a country are shut up, and a right of action cannot be enforced, and where lapse of time, therefore, is not accompanied with its usual effects and presumptions—much more in a case like this, of a contract bona fide, if there ever was one, and a trust for the pro. tection of the helpless and the ignorant. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. John C. SPENCER,

Secretary of the Treasury.

COMPENSATION OF MARSHALS IN CERTAIN CASES.

Mileage fees to district marshals whilst in pursuit of a person for the purpose of service of

process upon him, have been passed at the department; and as it seems equitable, although not wi hin a rigid construction of the law, it may be well to adhere to the practice.

OFFICE OF THE ATTORNEY GENERAL,

April 3, 1843. Sır: The claim of Mr. Bosler, marshal of the western district of Pennsylvania, for fees, presented in the letter of Mr. Whittlesey, falling more properly within the province of the Solicitor of the Treasury than the Attorney General, I submitted the case to that officer, and now enclose the opinion be furnished me.

On receiving this opinion, I looked, myself, into the act of 1799, and had a conversation with Mr. Penrose upon it, of which the object was to learn from hin what had been the practice of the treasury in these cases. The equity of the claim is indisputable; indeed, so much so, that one is reluctant to suppose a priori that there can be any doubt about the law. But a real difficulty arises out of the words of the statute, which seem to contemplate, as they certainly express, actual service of the writ as a con: dition of the payment of fees. The measure of compensation is to be determined by the distance between the place of service and the court. If there has been, in fact, no service at all, it might be asked, how shall the amount due the officers be ascertained? There is no provision made for so many miles of travel in quest of one who has not been found.

Therefore, had the construction adopted by the Auditor been originally put upon the statute, however hard the case of the claimant right, and indeed certainly would be, I should not be for disturbing it. But the Solicitor informs me that the allowance now claimed by the marshal has always been passed by the courts, and at the treasury; and cei tainly where, as in this case, the marshal has been directed to seek a defendant in a particular place, the objection of uncertainty is obviated. coines to tł is single question, whether the word service, in the statute,

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