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Such a course, it seems to me, will best tend to promote a faithful and efficient administration and execution of the law. This principle of non-intervention does not of course apply to the employment of counsel in cases to which the United States are parties. But the cases alluded to by the marshal are not of that description.
And without enlarging further on the subject, I have the honor to state, very respectfully, that I incline to think that, in this instance, you have no proper authority to comply with the request made by the marshal, and that it would be inexpedient, also, so to do. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. To the PRESIDENT.
EXECUTIVE AUTHORITY TO REMOVE THE CHIEF JUSTICE OF MINNESOTA
The President of the United States is not only invested with authority to remove the Chief Jas
tice of the Territory of Minnesota from office, but it his duty to do so if it appear that he is incompetent and unfit for the place. That the President has the constitutional power to remove civil officers appointed and commis
sioned by him, by and with the advice and consent of the Senate, where the constitution has not otherwise provided by fixing the tenure during good behavior, has been long since settled,
and the same has ceased to be a subject of controversy or doubt. The power is reposed in the President in order that he may enforce the execution of the public
laws of the country through the agency of competent and faithful subordinate officers.
ATTORNEY GENERAL'S OFFICE,
January 23, 1851. Sir: Application having been made to you to remove from office the chief justice of the Territory of Minnesota, erected by the act of 3d March, 1849, for establishing that territorial government, for very serious charges of incapacity, unfitness, and want of moral character, you have been pleased to refer to me the question whether you have the rightful power to do so.
The act of Congress under which he was appointed enacts, in section 9, “ that the judicial power of the said Territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace. The supreme court shall consist of a chief justice and two associate justices, *** and they shall hold their offices during the period of four years.” And in section 11, it is further enacted “that the governor, secretary, chief justice, and associate justices, attorney, and marshal
, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States." Upon the face of this statute, the appointment of these territorial judges were not for life, nor during good behaviour, but for the term of four years only. The decision of the Supreme Court of the United States, in the case of the American Insurance Company and others vs. Cauter, (1 Peters, 5 16,) is pertinent to the present inquiry. Chief Justice Marshall, in delivering the opinion of the court in that case, defines what territorial courts are not, and what they are, in these words: “These courts then are not constitutional courts in which the judicial power conferred by the constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts created in virtue
of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States."
Not being constitutional courts, and the judges not coming within the third article of the constitution respecting the judicial power and the tenure during good behavior, the question is, by what tenure of office do these Territorial judges hold? Is there no mode of removing them from office but by impeachment by the House of Representatives for, and conviction by the Senate of treason, bribery, or other high crimes and misdemeanors ? Being civil officers, appointed by the President, by and with the advice and consent of the Senate, and commissioned by the President, they are not exempted from that executive power which, by the constitution, is vested in the President of the United States over all civil officers appointed by him; and whose tenures of office are not made by the constitution itself more stable than during the pleasure of the President of the United States.
That the President has, by the constitution of the United States, the power of removing civil officers appointed and commissioned by him, by and with the advice and consent of the Senate, where the constitution itself has not otherwise provided, by fixing the tenure during good behavior, has been long since settled, and has ceased to be a subject of controversy or doubt.
In the great debate which arose upon that question in the House of Representatives, shortly after the adoption of the constitution, Mr. Madison is reported to have said: “It is absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself if he suffers them to perpetrate, with impunity, high crimes or misdemeanors against the United States, or neglects to superintend their conduct so as to check their excesses. On the constitutionality of the declaration, I have no manner of doubt."
And the determination of Congress was in accordance with his views, and has been since invariably followed in practice by every President of the United States. From this power the judges appointed for the Territories of the United States are not excepted. That these Territorial judges were appointed under a law which limited their commissions to the term of four years, does by no means imply that they shall continue in office during that term, howsover they may misbehave. An express declaration in the statute that they should not, during the term, be removed from office, would have been in conflict with the constitution, and would have precluded either the House of Representatives or the President from the exercise of their respective powers of impeachment or removal. The law intended no more than that these officers should certainly, at the end of that term, be either out of office, or subjected again to the scrutiny of the Senate upon a renomination.
When it is proposed that this power of removal shall be exerted upon a judge appointed for the administration of justice to the people of a Territorial Government, it must be admitted that caution and circumspection should be used. But the power of removal is vested by the constitution in the President of the United States to promote the public welfare, to enable him to take care that the laws be faithfully executed, to make him responsible if he suffers those to remain in office who are manifestly unfit and unworthy of public confidence.
To answer your inquiry specifically, I have only, in conclusion, to add that, in my opinion, you, as President of the United States, have the power to remove from office the chief justice of the Territory of Minnesota, for any cause that may, in your judgment, require it.
With very high regard, I have the honor to be, sir, your obedient servant,
J. J. CRITTENDEN. To the PRESIDENT OF THE United States.
LIABILITY OF THE SURETIES OF A RECEIVER OF PUBLIC MONEYS.
The sureties of a receiver of public moneys appointed by the President during a recess of the
Senate, are liable for all moneys received by him up to the end of the succeeding session of the Senate in cases where the receiver shall not have previously given a new bond as required by law, of officers nominated to and confirmed by the Senate whilst holding under a temporary appointment. The sureties of a receiver of public moneys (who shall have been acting under a temporary ap
pointment) appointed by and with the advice of the Senate, are liable for all moneys in his hands on the day of the giving of their bond, and which he may subsequently receive, to the
extent of its penalty. If there be an interregnum in the security for the performance of the duties of the office of re
ceiver of public moneys, appointed during a recess, and subsequently nominated to and confirmed by the Senate, by reason of his neglect to give a new bond upon his second appointment until after the adjournment of the Senate, neither the sureties in the first por second bond are
liable for the moneys by him received during that period. But, under the circumstances of the present case, the account of the receiver should be made out
for suit up to the end of the session of the Senate next succeeding his temporary appointment, against the sureties in the first bond; and all moneys received by him subsequent to that date, should be charged in account for suit against the sureties in the second bond, that the whole matter may be brought up for judicial determination.
ATTORNEY GENERAL'S OFFICE,
January 25, 1851. Sir: In answer to the questions stated, respecting the liabilities of the respective sureties of Daniel G. Garnsey, late receiver of public moneys at Dixon, Illinois, upon the respective bonds under his first and second commissions, I state:
1st. That Mr. Garnsey's commission, dated 22d March, 1811, by ap. pointment in the recess of the Senate, to continue until the end of the next session of the Senate thereafter, expired on the 13th September, 1811, when the said ensuing session of the Senate ended. It was not superseded nor vacated by the commission issued to him dated 25th June, 1841, for four years from 1st July, 1841, because said Garnsey did not, under that second commission, give bond and approved security (as required by law) until November, 1841. Having, under his first commission, given bond with approved security on the 22d March, 1841, and taken the oath of office required by law, and entered upon his duties, he was then an officer de jure under that commission. Being so, and continuing to act as receiver, nothing but due qualification, according to law, under his second commission for the same office, would have the effect to supersede his first commission. The statute having declared that every receiver, before he enters upon the duties of his office, shall give bond with
approved security, it follows that the commission of 25th June, 1841, did not of itself authorize him to enter upon the duties of that commission, nor did the commission and oath of office, without the bond with approved security, authorize him to act of right under that second commission. It is clear that the second commission was not a removal of him from office.
The statutes having required an oath of office, and also bond with approved security, before the receiver entered upon the duties of the office, an acceptance of that second commission for the office could not be legally made by taking an oath of office merely, without the bond and approved security. The approved security in this case was, in my opinion, essentially necessary to constitute a legal acceptance, a legal qualification, a legal authority to Mr. Garnsey to act as receiver de jure under his second commission.
The opinion of the Supreme Court of the United States in the case of the United States vs. Kirkpatrick, (9 Wheat. 731,) makes the “acceptance” of the new commission, by and with the advice and consent of the Senate, issued to the same collector who had been appointed in the recess of the Senate, a virtual superseding of the former commission. It appears, in the opinion of the court, that the collector did give the bond and security under his new commission. Therefore, the acceptance there alluded to must be taken to be a legal acceptance, which made the collector an oflicer de jure under his new commission, and not merely an officer de facto. It would be an absurdity to make Garnsey, having a legal commission, and a legal qualification to constitute him an officer de jure until the 13th September of 1841, to be, nevertheless, only an officer de facto from and after the 1st day of July, 1841. The law will not, by implication, defeat its own purposes, convert an officer having a lawful, rightful authority to act as receiver, into a mere officer de facto, and thereby let go the security to the government for the faithful discharge of the duties of the office, which otherwise would be subsisting to the 13th September, 1841.
The opinion of one of my predecessors does not state what description of officer he alluded to; but I cannot concur that Mr. Garnsey could make a legal acceptance of his second commission so as to supersede the first commission, and the bond and security for performance ihereof, without giving the bond with approved security which was required by law.
2d. The sureties in Garnsey's first bond are liable for all moneys received by him up to the end of the session of the Senate, September 13, 1841, and not beyond.
3d. From the end of the session of the Senate, 13th September, 1841, to the giving of the approved bond and security, bearing date 1st November, 1841, Garnsey was an officer de facto, not de jure.
4th. The bond of November 1, 1841, has not a retrospective condition, as may be seen on its face. It undertakes only for the future. In the case of Armstrong vs. United States (Peters' Circuit Court Reports, p. 46) it was decided that so much of the officer's bond as was retrospective was void, and not binding upon his sureties in that bond.
The bond of November 1, 1841, has not upon its face, nor by law, a retrospective operation so as to be coextensive with the second commission, and render the sureties liable for public moneys misapplied or
squandered by the receiver before the date of their bond. But for all public moneys in the actual possession of the receiver on the first day of November, 1841, and subsequently misapplied, squandered, and not accounted for by the receiver, the sureties in the bond of Ist November, 1841, would be liable, not exceeding the penalty of their bond.
5th. For moneys received after the 13th September, 1841, the sureties in the bond of 13th May, 1841, are not chargeable. For public moneys received by Garnsey between the 13th September, 1841, and the 1st November, 1841, and misapplied, converted to his own use, or squandered before the date of the said second bond of 1st November, 1841, the sureties in neither bond would be liable. But for all public money actually in the hands of the receiver on the said 1st November, 1841, but subsequently misapplied, or not paid over, the sureties would be liable, because such alter act of the receiver, in converting the public money to his own use, or misapplying it, would be a breach of the condition of the bond.
The receiver himself is responsible for all the public moneys by him received, whether acting as receiver de jure or de facto. The difficulty is as to the extent to which the sureties can be made liable. Under the circumstances, the account of the receiver, up to the 13th September, 1841, should be made up for suit against the sureties in the bond of 13th May, 1841, and all the moneys received after the 13th September, 1841, should be charged in account for suit against the sureties in the bond of 1st November, 1841. By so proceeding, the matters of right and justice between the government and the sureties of Garnsey will be brought up for judicial determination. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. A. H. H. START,
Secretary of the Interior.
COMPENSATION OF CLERKS IN THE CENSUS OFFICE.
The Secretary of the Interior has authority to increase the salary or compensation of the clerks
employed in the census office, provided that such increase does not raise their salaries above either the compensation usually paid for similar services, nor above the sum of one thousand
dollars per annum. These restrictions and limitations are explicit and peremptory; but subject to them the power of
the Secretary of the Interior is discretionary.
OFFICE OF THE ATTORNEY General,
January 25, 1851. Sir: You have been pleased to ask my opinion whether it is competent for you to make an increase of the salary of any of the subordi. nate or assistant clerks in the census office.
I am not informed as to the amount of salary now allowed to those officers, and can, therefore, only answer your question by stating that, from the 19th section of the act of Congress providing for the taking of the seventh and subsequent censuses of the United States, &c., it appears to me to be quite clear that you have the power to increase their salaries, provided that such increase does not raise their salaries above either the compensation usually paid for similar services," or above the sum of one thousand dollars per annum.