
    LEWIS E. PARSONS, JR., v. THE UNITED STATES.
    [No. 18384.
    Decided April 2, 1895.]
    
      On the Proofs.
    
    A district attorney in 1890 is commissioned for the term of four years. Before the term expires he is removed from office. His successor, then appointed by the President, is subsequently confirmed by the Senate.
    I. The office of United States Attorney was created by the Act 24th September, 1789 (1 Stat. L., p. 92), which says nothing as to the duration or term of office.
    II. The status of the office remained as above until the act To limit terms of office, 1820 (3 Stat. L., p. 882), which provided that they “shall be appointed for the term of four years, but shall be removable from office at pleasure.” For the intervening thirty years the President exercised tho power of appointment without legislative ■ attempt to control the period for which an appointment should be made; and it became the practice and custom of the Executive to remove officers at pleasure.
    III. The Temvre of Office Act, 2d March, 1867 (14 Stat. L., p. 430), and the Act 5th April, 1869 (16 id., p. 6), were incorporated into the Revised Statutes; but their provisions restricting the power of the President were repealed by the Aet 8d March, 1887 (24 Stat. L., p. 500).
    IV. The early legislation of Congress recognized the jmwer of removal in the President impliedly, and the act 1820 expressly. The tenure of office act grew out of the readjustment of institutions incident to the civil war, and conflicted with the earlier theory concerning the power of removal.
    V. When Congress enacted the Revised Statutes (§ 769) they omitted from the act of 1820 the words, “shall be removable from office at pleasure,” so as to preserve the consistency of the statute law as it then existed in the acts of 1867,1869.
    VI. The repeal of the above sections of the Revised Statutes was to restore the law to what it had been prior to 1867,a leaving to the President the power of removal as it had existed from 1789 to 1820 by constitutional interpretation, and from 1820 to 1867 by the terms of the act of 1820.
    VII.The term of four years in Revised Statutes (§ 769) is a limitation upon an officer’s continuance in office without a new appointment. The officer is to hold for four years, “subject to the conditions prescribed by lato; ” and by the effect of the act of 1887 the term of four years is made subject to the power of the President to remove.
    VIII.When an officer is removed before his term of office expires and the appointment of his successor is confirmed by the Senate, the action of the Senate is a ratification of the removal of the officer.
    
      
      The Reporters’ statement of tbe ease:
    Tbe following' are tbe facts of tbe case as found by tbe court:
    I. Lewis E. Parsons, jr., claimant, of Birmingham, in tbe State of Alabama, on tbe 4th day of February, 1890, after bis nomination and confirmation, was duly appointed, qualified, and commissioned, for tbe term of four years, as attorney for tbe United States for tbe northern district of Alabama, and also to act as such for tbe middle district of Alabama.
    II. Thereupon be entered upon tbe discharge of tbe duties of said office; be has never resigned said office; and now resides, and since tbe date of said commission has continued to reside, in tbe city of Birmingham, Ala., and within tbe north ern district of Alabama; be performed tbe duties of said office from tbe date of bis appointment until tbe Circuit Court refused to permit him longer to represent tbe. United States as its attorney, as hereinafter set forth.
    III. On tbe 29th day of May, 1893, tbe claimant received a communication from tbe President of tbe United States in words as follows:
    “Executive Mansion,
    “ Washington, B. C., May 26,1893.
    
    “Sir: Tou are hereby removed from tbe office of attorney of tbe United States for tbe northern and middle districts of Alabama, to take effect upon tbe appointment and qualification of your successor.
    “Grover Cleveland.
    “ To Lewis E. Parsons, Jr.,
    “ Birmingham, Ala.”
    
    Claimant bad no notice of any charge having been preferred against him prior to said 29th day of May, 1893, and has not yet bad any notice of any charge preferred against him.
    IY. To tbe communication from tbe President tbe claimant replied as follows:
    “BIRMINGHAM, Ala., June 5,1893.
    
    “ To tbe President oe the United States,
    “ Washington, JD. G.
    
    “ Sir: Your communication of tbe 26th May, 1893, assuming to remove me from office of United States district attorney for tbe northern district of Alabama, has been received and duly considered.
    “My commission bears date February 4,1894, and authorizes me to bold said office for tbe definite term of four years from • the date thereof, fixed by law, and I am advised by counsel, and it is my own opinion, that you have no power to remove me, and I respectfully decline to surrender the office.
    «Very respectfully,
    “Lewis E. Parsoes, Jr.,
    “ United States Attorney for the Northern District of Alabama.”
    
    Which, reply was duly mailed to the President of the United States, and upon the same day, namely, the 5th day of June, 1893, claimant notified both the Attorney-General of the United States and Emmet O’Neal, esq., who was named by the President as claimant’s successor, that he declined to surrender the office of attorney for the United States for the northern district of Alabama to said successor, whose appointment bears date May 26,1893.
    Y. On the 20th day of June, 1893, Emmet O’Neal, esq., moved the Circuit Court for the southern division of the northern district of Alabama, then in session in Birmingham, Ala., to require claimant to turn over to him all the books and papers and other property appertaining to the said office, which motion was resisted by the claimant and granted by the court.
    YI. On January 3,1894, claimant applied to the Attorney-General of the United States for permission to file a proceeding in the nature of a quo ioarranto, in the name of the United States, as plaintiff, against Emmet O’Neal, esq., to try the question of the title to said office, and offered to secure the costs of such proceeding, but the Attorney-General refused to allow such proceeding to be instituted in the name of the United States as plaintiff.
    YII. From January 1,1893, to May 26,1893, claimant earned in fees in cases in the Circuit and District Courts of the United States for the said northern and middle districts of Alabama, $6,405.40, and his account therefor has been duly passed on and approved by Hon. John Bruce, judge of the District Court of the United States for the northern and middle districts of Alabama, and has been duly audited and approved by the Treasury Department.
    YIII. That since the 26th day of May, 1893, and prior to the 31st day of December, 1893, there have been earned over $4,000 in fees for services rendered by Emmet O’Neal, esq., who has been performing the duties of United States attorney since the 26th day of May, 1893, making a total of fees appertaining to said office for the year 1893 of over $10,405.40. The claimant paid out for stationery and for clerk liire $1,088.31 during tbe year 1893, and tbe Government has paid bim $3,487.34, leaving a balance of $3,000.98 for stationery and for clerk hire, for wbicb petitioner paid, while be performed tbe duties of said office, and for salary and for fees and emoluments appertaining to said office, and earned during tbe year 1893, $3,600.98, wbicb amount bas been demanded by bim and tbe payment thereof bas been refused by tbe Government.
    IX. On tbe 27th day of December, 1893, claimant notified tbe Attorney-General, tbe Secretary of tbe Treasury, tbe Treasurer, and tbe First Comptroller of tbe Treasury that be would insist on tbe payment to bim of all tbe fees and emoluments appertaining to said office during tbe whole of tbe period covered by claimant’s commission.
    
      Mr. R. R. McMahon and Dudley and Michener for tbe complainant.
    1. Tbe President bad not tbe right or power to remove tbe claimant from bis office.
    In tbe grant of powers to tbe President in section 2, Article II, of tbe Constitution, it is declared that “be shall nominate, and by and with tbe advice and consent of tbe Senate, shall appoint ambassadors, other public ministers and consuls, judges of tbe Supreme Court, and all other officers of tbe United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” * *- *
    
    In tbe absence of words of limitation, this constitutional provision authorized Congress to create offices and to fix their tenure. (See Balter v. Kirk, 33 Ind., 527.)
    It is evident that tbe authors of tbe Constitution recognized tbe general principle that tbe power to appoint to office is not inherent in an officer, and that be can only appoint when the power to do so bas been confided to bim expressly or by necessary implication. (Hovey v. State, 119 Ind., 395; People v. Hurlbut, 24 Mich., 44; Commonwealth v. Baxter, 35 Pa. St., 263; People v. Mattlmoson, 47 Cal., 442 ; 6 Am. and Eng. Ency. Law, 294; Paine on Elections, sec. 699.) And when in 1789 and 1820 it became necessary to legislate with reference to district attorneys it was enacted by Congress that “district attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years from their respective dates.” (Rev. Stat., sec. 3769.) The constitutional and statutory provisions quoted authorized the President to appoint a district attorney “for a term of four years.” If we consider the word “term”in its common and ordinary signification, it must be treated here as meaning “the time for which anything lasts; any limited time; as, the term of five years; the term of life” — Webster’s Dictionary. The same meaning of the word obtains in legislation where it is “used to designate a fixed and definite period of time.” (Speed v. Crawford, 3 Mete. (Ky.), 207, 213.)
    The words “ a term of four years ” clearly mean a continued, consecutive, uninterrupted enjoyment of the rights, emoluments, and title of the office for that time. (See Gaillard v. Gaillard, 23 Miss., 152.)
    A term of office fixed by statute runs for the whole period named. (Kimberlin v. State, 130 Ind., 120.)
    The term of office, under the constitutional and statutory provisions quoted, may be conqiared to the term of a lessee, concerning which it is held that: “ The time between the making of the lease and its commencement in possession is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. It is the estate or interest which he has in the land itself by virtue of the lease from the time it vests in possession. When, therefore, our statute speaks of a lease for a term not exceeding one year, and of a contract for a lease for a period not longer than one year, it has reference to the time for the tenant to possess and occupy the premises, and does not include any previous or intermediate time.” (Young v. Balee, 5 N. Y., 463; Same case, 55 Am. Dec., 359.)
    This principle of permanency is emphasized by the enactment that the commissions of district attorneys “ shall cease and expire at the expiration of four years from their respective dates ” (sec. 769), made in pursuance of the constitutional command that the President shall commission all the officers of the United States. (Sec. 3, Art. II.)
    The purpose and value of the commission were discussed at length in Marbury v. Madison (1 Oranch, 137), in which' Marshal], C. J., said, on page 157:
    “ This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but tbe commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessary to appointment, though conclusive evidence of it.”
    And, on page 162, he said:
    “It is, therefore, decidedly the opinion of the court that when a commission has been signed by the President the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State.”
    The issuance of the commission, then, is the last solemn act of the President, evidencing the title of the officer to his office, and in accordance with the language of 769 it declares the title of the district attorney for a term of four years, at which time it ceases and expires. It is evident, therefore, that it was the intent of Congress to give to district attorneys a fixed and definite term of four years, and no longer, and this intent is made apparent by the use of language simple, direct, plain, and unequivocal. Such language is utterly inconsistent with the theory that the President can remove such an officer at his pleasure. Not one word is said about any power of removal, and there is no express grant of such. power. When there is no law authorizing the removal of an officer, it can not be done by the appointing power, if there is a fixed term of office. (Oollins v. Tracy, 36 Tex., 546; Mechem on Public Offices, sec. 445, and cases cited.)
    If the appointment had not been made for a fixed term, or if the statute had not the term, then the power of appointment would necessarily have carried with it the power of removal. (JUx parte Hennen, 13 Pet., 230.)
    In McAllister v. United States, Mr. Justice Harlan, in delivering the opinion of the court, quoted at length from Marbury v. Madison, and, on page 189, said:
    “Nothing in those observations militates, in any degree, against the views we have expressed. On the contrary, the Chief Justice asserted the authority of Congress to fix the term -of a justice of the peace in the District of Columbia beyond the power of the President to lessen it by his removal, or by withholding his commission after his appointment has been made, pursuant to an act of Congress, by and with the advice and consent of the Senate, and after the commission has been signed by the President and sealed by the Secretary of State.”
    
      Ia the case at bar, tbe statute enacted in pursuance of constitutional provision fixed tbe term of tbe office at four years and conveyed to tbe President tbe power to appoint and commission tbe officer for that length of time, and no more. Tbe grant of these powers, without a power of removal at pleasure, must be considered as a denial of that power to tbe Executive, and an exclusion of tbe idea that tbe term of office of tbe district attorney is dependent on tbe will or pleasure of tbe appointing power. (State v. Chatburn, 63 Iowa, 669; Same ease, 50 Am. Bep., 760.)
    Tbe only method prescribed by law for removing a district attorney is by “ impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” (Sec. 4, Art. II, of tbe Constitution.) Tbe constitutional command is that “all civil officers of the United States” shall be removed from office on impeachment, and Congress has not provided any other way for tbe removal from office of district attorneys, or given tbe right of removal to tbe appointing power. (Tbroop on Public Officers, sec. 362, and cases cited.)
    Tbe failure to grant tbe power of removal to tbe President by statutory enactment is equivalent to a denial of tbe right. (Mechem on Public Officers, sec. 450, and cases cited.) Tbe language of tbe statute giving tbe right to appoint and commission is such as to deny tbe right of removal by implication as an incident of tbe power to appoint. (Paine on Elections, secs. 708, 717.)
    2. But even if tbe President bad tbe right of removal, it could only exist for cause, and after notice and bearing given to tbe officer.
    In Hallgren v. Campbell, 82 Mich., 255; Same ease, 21 Am. St., Bep., 557, it is said:
    “We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause, and wherever cause must be assigned for tbe removal of tbe officer be is entitled to notice and a chance to defend.” (Meld v. Commonwealth, 32 Pa. St., 478; Statev. City of St. Louis,-90 Mo., 19.)
    To same effect is, Mechem on Public Offices, section 454. And in State v. Harrison, 113 Ind., 234; Same ease, 3 Am. St. Bep., 663, it is said:
    
      “The final adjudication of such a right is, unless otherwise specially provided by competent authority, a matter of judicial concern, in respect to which the prior claimant is entitled to be heard in a forum whose proceedings are distinguished by the cautionary methods appropriate to the ascertainment and protection of personal and property rights.” (Page v. Hardin, 8 B. Mon., 643; Commonwealth v. Meeser, 44 Pa. St., 341; Dullam v. Willson, 53 Mich., 392.)
    See also Throop on Public Offices, section 362 et seq.; Mechem on Public Offices, section 455.
    3. As the office was in the occupancy of the claimant, who had been lawfully appointed to it, there was no vacancy which the President could fill by appointment.
    “An office is not vacant so long as it is supplied in the manner provided by the Constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it. # * * An office is legally vacant unless the occupant has an unexpired right or title, found in the constitutional law, precisely as a house is vacant of a lawful tenant in case the lessee, without any provision authorizing him to hold over, refuses to surrender at the expiration of the term.” (State v. Harrison, 113 Ind., 234; Same case, 3 Am. St. Rep., 663.)
    An appointment to fill a vacancy is void when there is no vacancy. (State v. Hcwrison, 113 Ind., 434; Kimberlin v. State, 130 Ind., 120.)
    In the case at bar the claimant had an únexpired right or title found in the Constitution and the law, precisely as a lawful tenant would occupy a house, with right and title, until the expiration of the term fixed by the lease. Therefore it follows that the term of the officer, like the term of the tenant, had not expired, and the office not being vacant the President had no right to appoint the present incumbent.
    4. The claimant having been wrongfully deprived of the emoluments and perquisites of his office from the time of his ejection from it until the expiration of the date of his term, is entitled to the perquisites and emoluments earned during that period.
    This principle is established by Redgrave v. United States, 116 U. S., 474; United States v. Perlcins, 116 U. S., 483; Andrews v. Portland, 79 Me., 484; Same case, 10 Am. St. Rep., 280; ■State v. Garr, 129 Ind., 44; Same ease, 28 Am. St., 163.
    
      
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney-General Podge) for tbe defendants.
    Tbe power of removal by tbe President of all officers in the executive branch of tbe Government has been expressly recognized since tbe act of September 24, 1789, now embodied in Revised Statutes as section 767 (1 Kent Com., 309 ; 2 Story Const., secs. 1537-1540).
    As appears from 1 Kent, above cited, tbe power of tbe President and the Senate, acting together, to remove an incumbent from any office whose term was not limited by tbe Constitution has never been questioned since tbe adoption of tbe Constitution. Tbe only question that ever arose was whether the President, without the concurrence of the Senate, had the power, and this was early settled in favor of the President. This contemporary construction of the Constitution, and long X>ractice and acquiescense in it, is conclusive upon the courts now. (Stuart v. Laird, 1 Cranch, 299; Burrow v. Sarony, 111 IT. S., 53; Oooley v. Board of Wardens, 12 How., -299 5 The Laura, 114 U. S., 411.)
    Article 2, section 2, of the Constitution confers upon the President the power of appointing, with the advice and consent of the Senate, officers of this character, and by contem-X>ory construction and practice the President alone had the power of removal. The fact that Congress had fixed the term of an office, then, can only operate to fix the maximum time which an incumbent can hold under one commission. It can not operate to limit the power given the President by the Constitution, and his power of apj)ointment can only be limited where thé term of any office is fixed by the Constitution itself. (1 Kent, 309 ; Blake v. United States, 103 TJ. S., 227 5 Wx parte Hennam, 13 Pet., 259.)
    The case of Hennam (supra), followed by Blake (supra), followed in turn by McAllister's Case (141 IJ. S., 174) should, it seems to me, settle this case.
    Blake by statute held his office during good behavior; that is, until he should be convicted of some offense by a court: martial, and McAllister held his office under the provisions of the Act of May 17, 1884 (24 Stat., 26, see., 9), which fixed the term of his office at four years, and until his successor should be appointed and qualified. And yet in each of these cases the court held that tbe Constitution having vested tbe power of appointment and removal in tbe President Congress could not abridge it.
    Much reliance seems to be placed by claimant upon tbe case of Marbury v. Madison (1 Craneb, 137). I do not think it is material at this late day to inquire into tbe scope and purpose of that decision. Tbe court, in its subsequent decisions above cited, has always said that they are not antagonistic to tbe case of Marbury v. Madison. At any rate tbe later cases, whether departing from or adhering to tbe elder case, fix the rule clearly and unequivocally that Congress can not abridge tbe power of tbe President to remove tbe incumbent of an office of this character.
    Tbe other cases cited by claimant are constructions of tbe laws of tbe various States by their highest tribunals, and are not even persuasive in this case, tbe rule having already been so clearly and permanently fixed by tbe Supreme Court of tbe United States.
    
      Mr. L. T. Michener in reply:
    Tbe office of district attorney was created by tbe Act of September 24,1789 (1 Stat. L., pp. 72-93). Section 35 of that act authorized tbe appointment of district attorneys, but prescribed no term of office; therefore such officers held office during tbe pleasure of tbe appointing power. But by tbe Act of May 15,1820 (3 Stat. L., p. 582), it was enacted “that from and after tbe passing of this act all district attorneys * * * to be appointed under tbe laws of tbe United States shall be appointed for tbe term of four years, but shall be removable from office at pleasure.” This enactment took tbe office of district attorney out of tbe pale of legislative and executive interpretation, and put it upon tbe basis of a fixed term subject to tbe right of removal. This statute was tbe plain and unequivocal expression of the legislative will that district attorneys should bold their offices for tbe time» fixed, unless removed at tbe pleasure of tbe appointing power.
    So stood tbe law until tbe tenure of office act was passed in 1867. That act is embodied in section 1767 to 1772, inclusive, of tbe Revised Statutes. Section 1767 is as follows:
    “Every person bolding any civil office to which be has been or hereafter may be appointed by and with tbe advice and Consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except as herein otherwise provided.”
    The other sections relate to the suspension and removal of officers and the filling of vacancies. These sections clearly repeal all other statutes providing for the removal or suspension of officers. The several sections cited were repealed by the Act of March 3, 1887 (24 Stat. L., 500), and being repealed no statutory power was left in the President to suspend or remove an officer with a fixed term of office. Such previous statutes as conferred the power to remove district attorneys were repealed by the tenure of office act, and it being in its turn repealed by Congress the former acts conferring the power of removal were not revived. “Whenever an act is repealed which repeals a former act, such former act shall not thereby be revived, unless it shall be expressly so provided.” (R. S., sec. 12, being the act of February 25, 1871.)
    Again, when the Revised Statutes were adopted or enacted, all statutes previous to December 1,1873 (no portion of which is embraced in the revision), were expressly repealed, except so far as they were inserted in the Revised Statutes, section 5596; United, States v. Bowen, 100 U. S., 508, and the cases cited in G-ould & Tucker’s Notes on the Revised Statutes, pp. 1048,1049. Now, section 769, Revised Statutes, declares that “district attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years from their respective dates.” In United States v. Bowen (100 U. S., 508, 513) it is said:
    “The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873. When the meaning is plain the courts can not look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.”
    Prior to the repeal of the tenure of office act, sections 1767 to 1772, inclusive, so far as they affected the office of district attorney, had to be considered and construed in connection with section 769, but when the former sections were repealed the latter stood alone as tbe expression of tbe legislative will concerning tbe tenure of office of district attorneys, and so it is to tbe latter section that tbis court must direct its attention in tbe case at bar. That section gives them a tenure of four years, and does not confer tbe power of removal upon tbe President. As tbe power of removal bas not been conferred elsewhere it does not now exist.
    There being no statute conferring tbe power of removal upon tbe President, tbe next question is whether or not it is conferred on him by tbe Constitution of the United States. Tbe question is not one of tbe general power of removal in tbe absence of a constitutional provision or a statute fixing tbe tenure of office, but it is whether or not the Constitution confers on tbe President tbe power to remove an inferior officer whose office is created by law and tbe term fixed by tbe power which created tbe office.
    In tbe discussion of tbe President’s power of removal of officers, those who claim that bebas such power under tbe Constitution invariably describe it as an implied power. Tbe Constitution certainly confers no express power of removal, for tbe subject is not referred to in tbe enumeration of tbe President’s powers. Tbe removal of civil officers is provided for by impeachment, and in such cases tbe removal is by tbe Senate and not by tbe President. If be have such implied power in some cases, it would be logically impossible to make it applicable to tbe offices of United States district attorneys, for they belong to that class of inferior officers whose offices are created by statute and whose appointment is not vested in tbe President by tbe Constitution; for that instrument bas left it within tbe power of Congress to vest tbe right to appoint them “in tbe courts of law or in tbe beads of Departments.” If Congress bas tbe power, as it clearly bas by tbe words of tbe Constitution, to provide that the President shall not appoint these officers, it can not be questioned that it also bas tbe power to fix tbe terms of office beyond tbe control of tbe executive power. But bas tbe President any implied power of removal? If tbe power be an incident of tbe right to appoint, it resides in tbe President and Senate jointly, and not in tbe President alone. It can not be derived or inferred from bis general executive authority, for tbe duty to execute tbe laws no more includes tbe power to remove an officer than it does to create an office. He can execute but not make laws. It is necessary to raise revenues to bave' tbe laws executed, and yet no one would claim that tbe President would bave tbe power to levy a tax.
    Tbe President is tbe prime minister of tbe nation ratber than its monarch. He is subject to law, and bas no claim to tbe infallibility wbicb tbe doctrine of divine right ascribes to kings. Tbe Constitution substituted for divine right a reign of law. When tbe President acts, bis authority must exist. He can not ask that bis command shall be a justification for a breach of law. (2 Hare’s Am. Const. Law, 844.) Tbe power to remove officers at will is clearly not a necessary part of bis executive authority. It bas often been conferred upon him ; it may sometimes be wise to do so, but when be bas such power it is by virtue of a statute wbicb vests him with tbe power, and it is not a part or incident of bis executive power, or such statutes never would be enacted. Tbe offices in question are created by statute. Tbe duties of those who fill them are defined; their payprescribed; and their tenure, or mode or manner of removal, may be regulated by law. If tbe President bad tbe constitutional power to remove, it could only be limited by tbe Constitution, and yet Congress bas often regulated tbe removal of officers and fixed their terms.
    
      “ The President shall bave power to fill up all vacancies that may hajipen during tbe recess of tbe Senate, by granting commissions wbicb shall expire at tbe end of their next session.” Tbe power conferred by this section arises from necessity, because tbe public service would suffer unless tbe vacancy is filled. “ Fill up vacancies that may happen,.” are tbe words used. Tbe provision that tbe commission expires at tbe end of tbe next session excludes tbe conclusion that tbe President may create vacancies to fill, for if be bas that right the Senate would be without authority in tbe matter, and tbe President could create vacancies in every office and renew tbe commissions of bis appointees after each adjournment of tbe 'Senate, if it failed to consent to bis appointments. He would be tbe master of all offices to be filled by appointment, and tbe Senate’s advice and consent would be without force. Tbe vacancies referred to by tbe Constitution are those wbicb may happen by death, resignation, the expiration of term, or removal by impeachment, or removal by authority conferred by statute.
    
      The vacancies referred to in this paragraph of the Constitution are those that may happen during the recess of the Senate. If the vacancies happen during a session of the Senate, and the office is one to be filled by the President and Senate jointly, the President should make the appointment while the Senate is in session. In responding to a question of this kind, Mr. Justice Jackson said:
    “The vacancy having occurred during the session of the Senate, I do not think the President has the authority, under the Constitution, to fill it during the recess of the Senate.” (In re Yancy, 28 Fed. Rep., 450.)
    If it be true that the President has no authority, under the Constitution, to fill a vacancy during the recess of the Senate which happened while the Senate was in session, surely the Constitution does not confer on him the power to both create and fill vacancies during the recess of the Senate.
    If the statute fixing the term of this office is constitutional, then the President has no such right of removal as is claimed here. Congress has often exercised such power heretofore without question.
    The first section of the act of May 15,1820, fixed the term of district attorney at four years, and provided (what is now repealed) “that they should be removable from office at pleasure.” In 1863 Congress passed the national-banking law. It provided for the appointment of a Comptroller of the Currency, and fixed his term of office at five years “unless sooner reino ved by the President, by and with the consent of the Senate.” What inferences follow from this legislation"? And they are merely examples of many other statutes. The right of removal at pleasure conferred by the statute of 1820 was superfluous if the President had the same authority under the Constitution, and it was useless for Congress to limit the tenure of office by the one statute to four years and by the other to five years, for the President might shorten or extend them indefinitely, as he clearly can if he has the right of removal. If the President has the constitutional right of removal, it is clearly unconstitutional for Congress to limit the right by fixing the term of office. Yet this right has been often exercised by Congress without question.
    
      In section 1537 of 2 Story on the Constitution, the author says:
    “It is observable that the Constitution makes no mention of any power of removal by the Executive of any officers whatsoever. As, however, the tenure of office of no officers except those in the judicial department, is, by the Constitution, provided to be daring good behavior, it follows by irresistible inference that all others must hold their offices during pleasure, unless Congress shall have given some other duration to their office.”
    Story clearly recognizes the right of Congress to fix the tenure, and that this action would defeat the right of removal. In 1 Kent’s Commentaries, marginal page 310, the author, after commenting on the passage of the act of 1789, says:
    “This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of Government appointed by the President and Senate whose term of duration is not specially declared.”
    In this pointed way Chancellor Kent recognizes that the legislative construction as it is called (act of 1789) is not applicable to cases where the term of office is fixed by law. It may be well to note here that the act and debate of 1789 related to one of the “heads of Departments,” and not to one of the inferior offices provided for by the Constitution. It will be seen that the authorities seem to recognize the right of Congress to fix a term of office even for the heads of Departments, which are offices provided for by the words of the Constitution. The debate and contention was about offices of this character. We find no judicial opinion or statements by eminent statesmen intimating that Congress has not the power to fix the term of office of the inferior officers whose offices are created by Congress under authority conferred by the Constitution.
    In Ex parte Jlennen (13 Peters, 230) the Supreme Court of the United States clearly and distinctly recognizes the authority of Congress to fix the terms of inferior officers. (Marbury v. Madison, 1 Oranch, 137; McAllister v. United States, 141 U. S. 188; United States v. Guthrie, 17 How., 287; Blake v. United States, 103 U. S., 227; United States v. Avery, Deady, 204.)
    This alleged constitutional power of removal, it is claimed, is beyond legislative control. This position is not consistent with other parts of the Constitution. On Congress the power is conferred in express terms, “To make all laws wliicb shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof.” (Article 1, section 8.)
    To say that the President can remove an incumbent with a fixed term from his office without the direction or permission of Congress, is to affirm that he is superior in that respect and may disregard its enactments at pleasure. And more, it is to assert that Congress can not prescribe the term of an office created by it so that the President can not change the term. It is to assert that the President can regulate the powers conferred on Congress. This would be to reverse the meaning of the Constitution. If he is permitted to annul a statute, why not permit him to annul the Constitution? If to-day he may remove the district attorneys, to-morrow he may remove the judges. The tenure of the former is fixed by statutes made by authority of the Constitution. The tenure of the latter is fixed by the Constitution itself. The one tenure is as binding on the Executive as the other. If he may annul a statute, why not the Constitution"? Unlawful power, not checked, grows, and there is but little progress in its evolution from annulling a statute to annulling the Constitution. Unbending vigilance of the courts is the price of a perpetual Constitution.
   Weldon, J.,

delivered the opinion of the court:

It is alleged in the petition, and substantially shown by the findings, that the claimant was on the 4th day of February; 1890, after his nomination by the President and confirmation by the Senate, appointed and commissioned for the term of four years as attorney for the United States in and for the northern and middle districts of Alabama; that he thereupon entered upon the discharge of his duties as such attorney, and thereafter gave to the duties of said office his professional attention and care until the 20th day of May, 1893; that upon that date he received from the President of the United States a communication as follows, to wit:

“Executive Mansion,
11 Washington, D. 0., May 26,1893.
“ Sir : You are hereby removed from the office of district attorney of the United States for the northern and middle district of Alabama, to take effect upon the appointment and qualification of your successor.”

To that communication the claimant replied, in substance, that his commission bore date February 4,1890, for the term of four years; that he was advised by counsel that the President had no right to remove him, and therefore he declined to surrender the office.

On the 26th day of May, 1893, Emmet O’Neal, esq., was appointed the successor of claimant, and on the 20th of June, 1893, he made application to the Circuit Court of the United States for the southern division of the northern district of Alabama for an order requiring claimant to surrender to him all the books, papers, and other property appertaining to said office. Upon such application the court made the order as requested'; and the claimant accordingly surrendered the possession of all the books, papers, and property belonging to his office as United States attorney. The claimant notified the Attorney-General of the United States and his successor that he declined to yield possession of his office before the granting of said order.

From January 1,1893, to May 26,1893, the petitioner’s fees in cases in the Circuit and District Courts of the United States of the northern and middle districts of Alabama amounted to the sum of $6,405.40; his' account therefor was approved by the court, audited and allowed by the Treasury Department; since the 26th day of May, 1893, and prior to the 31st day of December, 18 '3, there have been earned for services by his successor over the sum of $4,000, making an aggregate of fees earned in the office during the year 1893 the sum of $10,405.40; claimant paid during the year for stationery and clerk hire the sum of $1,088.31; and has received the sum of $3,487.34 for his services during the year 1893.

No charges were made against said claimant because of any delinquency in the -discharge of his duty, to the knowledge of said claimant, though he made inquiry to ascertain if any were to be preferred.

The successor of claimant was confirmed by the Senate on the 22d day of August, 1893, and from thence hitherto he has been in the possession of the office, and in the discharge of his duties, as he had been between the 26th day of May and said date.

The facts thus briefly stated involve the question whether the removal of claimant, and the appointment of his successor by and with, tbe advice and consent of tbe Senate, deprives bim of tbe emoluments of bis office during tbe remainder of tbe term for wbicb be was commissioned.

Sections 767 and 769 of tbe Eevised Statutes in substance provide that there shall be appointed a district attorney of tbe United States for tbe northern district of Alabama, that be shall perform tbe duties of tbe middle district of said State, that bis appointment shall be for tbe term of four years, and that tbe commission shall expire at tbe end of four years from its date. Tbe claimant insists that because be was so appointed, and because bis commission was for tbe term of four years, be has a vested right in tbe emoluments of tbe office for that period, and, therefore, tbe removal by tbe President was without authority of law and in violation of bis right to serve during tbe term specified in tbe commission.

Tbe statute of 1789, providing for tbe appointment of district attorneys (1 Stat. L., p. 92), was intended for tbe exercise of tbe power of appointment recognized in section 2, Article II, of tbe Constitution, in wbicb it is declared that tbe President u shall nominate, and by and with tbe advice and consent of tbe Senate, shall appoint ambassadors, other public ministers and consuls, judges of tbe Supreme Court, and all other officers of tbe United States whose appointments are not herein otherwise provided for and wbicb shall be established by law; but tbe Congress may by law vest tbe appointment of such inferior officers, as they think proper, in tbe President alone, in tbe courts of law, or in tbe beads of Departments.” Under this provision tbe President has tbe constitutional right of appointment of certain officers specified in tbe Constitution and such officers as be may by lawr be authorized to afipoint.

Tbe office of tbe United States attorney was created in tbe year 1789, and grew out of tbe necessity of having some person to represent tbe interest of tbe Government in tbe various courts established by Congress, and is a part of tbe judicial system established by the Act approved September 24, 1789 (1 Stat. L., 92). Tbe law provides, “And there shall be appointed in each district a meet person learned in the law to act as attorney for tbe United States in such district.” Nothing is said in tbe statute as to who shall appoint, nor what shall be tbe duration or term of service. Under that provision of tbe statute tbe President, in tbe exercise of bis power of appointment, selected persons of tbe bar to represent tbe Government in all litigations, incident to its civil business, and in tbe prosecution of crimes, misdemeanors, and offenses against tbe laws of tbe United States. Tbe statute also provided for tbe appointment of an Attorney-General of like professional qualifications, to represent tbe United States in tbe Supreme Court of tbe United States and tbe performance of other duties prescribed by tbe statute.

Tbe status of tbe office of district attorney so far as tbe power of appointment was concerned remained unaffected from 1789 to 1820, when an act entitled “An act to limit tbe terms of office of certain officers therein named, and for other purposes,” was passed (3 Stat. L., 582). Among tbe offices in that act enumerated is the office of district attorney. It is provided that tbe district attorney “shall be appointed for tbe term of four years, but shall be removable from office at pleasure.” Nothing is said in tbe act as to rvho shall appoint, and tbe only reference to tbe President in tbe act is that, be shall have power to increase tbe bond of certain officers. The statute makes provisions for the expiration of tbe commissions issued before tbe passage of tbe law, and subjects them to tbe limitations of tbe statute, so as to conform to tbe policy of having a commission expire by limitation of time.

For a period of over thirty years tbe President exercised tbe power of appointment under tbe act of 1789 without any legislative attempt to define or control bis right as to tbe mode or manner of appointment, or tbe time for which tbe appointment should be made. During that period it is safe to assume that many changes bad been made in tbe office of district attorney and other offices by tbe Presidents who served during the period from 1789 to 1820. From these repeated removals it bad become the practice and custom of tbe Executive to remove officers at pleasure without tbe authority or sanction of tbe Senate.

Tbe record presents a grave question of constitutional law. and it is a remarkable feature of our judicial history that, so far as we have been able to ascertain, it lias never been definitely passed upon by either an inferior or tbe Supreme Court of tbe United States. It is strange that out of tbe many removals no litigation has arisen involving tbe direct question made by tbe facts of this case. Tbe Court of Claims lias been established for nearly forty years, and yet no person has availed himself of its jurisdiction to determine the question of the right of a removed incumbent to the emoluments of the office for the unexpired portion of the term of his commission. The que« tion of the power of the President to remove at his pleasure, without the concurrence of the Senate, was made in the discussion incident to the adoption of the Constitution in the pages of the Federalist. Chancellor Kent says:

“This [that the power of removal rested with the President and Senate] was the construction given to the Constitution while it was pending for ratification before the State conventions by the author of the Federalist. ‘The consent of the Senate/the Federalist observes, ‘would be necessary to displace as well as to appoint;7 and he goes on to observe that • those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the great permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the Government.7 But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. In the act for establishing the Treasury Department the Secretary was contemplated as being removable from office by the President. The words of the act are, 1 That whenever the Secretary shall he removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act,7 etc. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the. case. It applies equally 'to every other officer of Government, appointed by the President and Senate, whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general principle and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty and might often be requisite to fulfill it.
“This question has never been made the subject of judicial discussion, and the construction given to the Constitution in 1789 has continued to rest in this loose, incidental, declaratory opinion of Congress and the sense and practice of Government since that time. It may now be considered as firmly and definitely settled and there is good sense and practical utility in. tbe construction. It is, liowever, a striking fact in tbe constitutional history of our Government that a power so transcendent as this is, which places at the disposal of the President alone the tenure of every executive officer appointed by the President and the Senate, should depend upon inference merely, and should have been gratuitously declared by the First Congress in opposition to that high authority of the Federalist, and should have been supported or acquiesced in by some of those distinguished men who questioned or denied the power of Congress even to incorporate a national bank.”

By this eminent authority, the district attorney, from the creation of the office in 1789 to 1820, by constitutional implication and construction, held at the pleasure of the President, and after the passage of the apt of 1820 that construction and implication was recognized by the statute, which continued in force and regulated the tenure of appointed officers, except certain judicial officers enumerated in the Constitution, until the passage of the Tenure of Office Act March 2, 1867 (14 Stat. L., 430). By that act it is enacted “that every person who is appointed to any civil office by and with the advice and consent of the Senate, and who becomes duly qualified to act therein, shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified.” That provision of the act was repealed by the Act April 5, 1869 (16 Stat. L., 6), and it was enacted instead “that every person holding any civil office to which he has been or may be hereafter appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed unless sooner removed by and with the advice and consent of the Senate, or by the appointment with the like advice and consent of a successor in his place.”

These two statutes were incorporated into the Bevised Statutes which were passed June 22,1874, and declared the law as it existed December 1, 1873. The sections of the Bevised Statutes embracing these statutes were repealed by the Act March 3, 1887, chap. 353 (1st Supp. R. S., 2d ed., 558).

We have quoted and cited all the statutes which, as we believe, have been passed by Congress affecting the question at issue in this proceeding; and while they tend to throw light upon the pathway of investigation and decision they are not absolutely .decisive of tbe rights of tbe litigants. They still leave tbe question embarrassed with some doubt and uncertainty. Tbe fact tbat Congress in tbe early days of tbe Government, after a mature deliberation and a discussion in wbicb tbe ablest statesmen participated, decided to recognize tbe power of removal in tbe President, is a strong argument in favor of tbat theory, and when in 1820 they legislated upon tbe subject of tbe tenure of office and by express terms subjected tbat tenure to tbe pleasure of tbe President, is an additional argument in favor of tbe construction tbat bis prerogative of appointment and removal could not be limited or impaired. Tbat construction of tbe Constitution and condition of legislation prevailed until tbe year 1867, when tbe act known as tbe tenure of office act was passed, establishing a new theory of constitutional law and a new policy of political administration. That act grew out of tbe peculiar state of civil society because of a readjustment of our institutions incident to tbe great civil war. It is not necessary to discuss tbe provisions of that'measure, as it was repealed by tbe act of 1887. It has passed into history, and is valuable as a legislative construction of tbe Constitution of tbe United States in conflict with that theory wbicb bad prevailed in tbe legislation of tbe country prior to its enactment. It is sufficient in this connection to state tbat tbe Supreme Court, in tbe case of Embry v. United States (100 U S., 680), in wbicb was involved tbe acts of 1867 and 1869, did not pass upon tbe constitutionality of tbe statutes, inasmuch, as tbat question was not necessarily involved. Tbe court said:

“The important constitutional question wbicb has at times occupied tbe attention of tbe political department of tbe Government ever since its organization, and wbicb was brought to our attention in tbe argument, is not, as we think, involved. Tbe question here presented is not one of office, but of salary. Wherever tbe power of removal from office may rest, all agree tbat Congress has full control of salaries, except of tbe President and tbe judges of tbe courts of tbe United States. Tbe amount fixed at any one time may be added do or taken away from at will. No officer except tbe President or a judge of a court of tbe United States can claim a contract right to any particular, amount of unearned compensation. If an officer is not satisfied with what tbe law gives him for bis services be may resign.”

Tbe tenure of office act was not only in principle - reenacted by tbe Act April 2, 1869 (16 Stat. L., 6), but in tbe adoption of tbe Bevised Statutes on June 22,1874, Congress incorporated its provisions in tbe sections heretofore cited, as being tbe law in force on the 1st day of December, 1873.

Tbe principle and policy of limiting the prerogative of tbe President, enacted in 1867, continued until tbe act of 1887 (supra) was passed repealing whatever limitation was imposed by tbe act of 1867.

Tbe act of 1887 is simply a statute of repeal, and has no provisions affecting tbe law beyond tbe negative quality of repealing tbe act of 1867 as modified by tbe act of 1869. When Congress adopted tbe Bevised Statutes in July, 1874, they omitted from section 769 tbe words “shall be removable from office at pleasure” as found in tbe Act 1820 (3 Stat. L., 582), in order that tbe consistency of tbe law might be preserved, adopting as they did as part of tbe Bevised Statutes tbe substance of tbe act of 1867 as amended by tbe act of 1869. Section 769 is an embodiment of tbe substance of tbe acts of 1789 and 1820, as will be seen by tbe marginal reference to those two statutes.

This being tbe state of tbe statutory law upon tbe subject, it leaves in force and for construction in tbe determination of tbe issue made by tbe facts, section 769.

It is insisted by counsel for claimant that a term of four years clearly means a continued, consecutive, uninterrupted enjoyment of tbe rights, emoluments, and title of tbe office for that time. In support of this proposition reference is made to tbe case of Gaillard v. Gaillard (23 Miss., 152), and tbe case of Kimberlin v. State (130 Ind., 120).

Tbe case of Kimberlin is that of a township trustee, and tbe Supreme Court held in relation to bis rights as an officer, “where an officer is lawfully elected and in tbe possession of an office bis right to bold over continues until a qualified successor has been elected by tbe same electoral body as that to which be bolds election or which by law is entitled to elect bis successor.” Tbe case in 23 Mississippi is that a term of three years as used in tbe law of divorce must be without interruption, and it is not proper to join two distinct periods in order to fill tbe measure of tbe statute. While these autborities tend to establish the proposition of counsel, they do not reach the contention in this case.

It is also insisted that as section 769 of the Bevised Statutes was unaltered in terras and unaffected by any specific mention in the repealing act of 18S7, that that section is the law of this case; and as it provides a term of four years as the duration of the claimant’s term, his removal before the expiration of his commission was unlawful, and does not deprive him of the right to the emoluments of his office as long as that term continues in time; that the act of 1820 was not revived by the repeal of the acts of 1867 and 1869, and therefore the pleasure of the President was eliminated from the statute and claimant’s right was beyond the control of executive power founded upon the will of the President. The right to recover is by the argument of counsel placed upon section 769, and because that section, as it is claimed, makes the district attorney’s office an absolute holding of four years, his removal without the proceeding of impeachment does not impair his right to the salary and fees to the office. This case logically resolves itself into that issue.

If Congress intended by the repeal of the acts of 1867 and 1869, without reference to section 769, to leave in force the time as specified in that section and thereby circumscribe the prerogative of the President in the removal of the district attorney, it presents the question of the constitutionality of that section; but if Congress intended by the repeal of the acts of 1867 and 1869 to leave the question of the right of removal as it had been left by the legislation and practice of the Government from 1789 to 1867, then no question of constitutional law arises, and the issue is disposed of on an interpretation of the statute.

In the discussion of the constitutional right of the President to remove an officer without the concurrence of the Senate many distinguished statesmen, jurists, and authors have participated; and the question as one of constitutional philosophy is left where the disputations of learned men very frequently leave a question of moral reasoning — still within the pale of doubt and uncertainty. We do not deem it necessary to indulge in any length of argument upon the question of the constitutional right of the President to remove at his pleasure, nor to determine upon which side of the question the weight of authority rests. Both sides of the issue are stated with admirable clearness in the learned treatise of Mr. Justice Story iñ his commentaries upon the Constitution (2 vol., secs. 1537 to 1541).

The question of the power of removal without the consent of the Senate came before the Supreme Court in the case of McAllister v. The United States (141 U. S., 174) on an appeal from this court. While that case does not decide the point at issue in this proceeding, it maybe cited as tending to a correct understanding of the law applicable to the facts of the case at bar.

The Supreme Court in the McAllister Case decided in substance that the claimant could be suspended under section 1768 of the Revised Statutes, and could be removed before the expiration of the term of service in the manner pointed out by said section, he not being one of the excepted officers of the law.

The theory of claimant in the McAllister Case was that he held by a life tenure, and was therefore not subject to removal; but the Supreme Court, in affirmation of the judgment of this court, decided that he did not so hold, and that his removal was lawful in pursuance of the Revised Statutes, and he could not therefore recover. The case is cited in the briefs of both counsel, the claimant’s contending that inasmuch as the case of Marbury v. Madison (1 Crunch, 137) was cited, the Mar-bury Case is applicable and decisive of the rights of the claimant. The case of Marbury is perhaps the most celebrated case in our judicial history, and while it has been the subject of adverse criticism because of a decision of constitutional questions not authorized by the questions in issue, its reasoning has never been successfully refuted nor its legal conclusions denied by any decision of the Supreme Court of tbe United States. We are cited to the following extract from the opinion of Chief Justice Marshall:

“Where an officer is removable at the will of the Executive the circumstance which completes his appointment is of no concern, because the act is at anytime revocable, and the commission- may be arrested, if still in the office. But when the officer is not removable at the will of the Executive the appointment is not revocable, and can not be annulled. It has conferred legal rights which can not be annulled. It has conferred legal rights which can not be resumed.
‘‘The discretion of the Executive is to be exercised until the appointment lias been made; but having once made .the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
“Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years, independent of the Executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. * * *
“The power of nominating to the Senate and the power of appointing the person nominated are political powers, to be exercised by the President according to his own discretion. When he has made an appointment he has exercised his whole power, and his discretion has been completely applied to the case. If by law the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But, as a fact which has existed can not be made never to have existed, the appointment can not be annihilated; and, consequently,.if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They can not be extinguished by Executive authority, and he has the privilege of asserting them in like manner as if they liad been derived from any other source.”

The office at issue in the Marbury Case was that of justice of the peace for the District of Columbia, and did not pertain exclusively to the execution of the laws. The duty of a justice is to judicially apply the laws in the litigation of the citizens and the investigation in preliminary examinations of persons charged with crimes and misdemeanors. The district attorney is not a judicial officer, but an officer specially appointed to assist the executive branch of the Government in the execution of the law by the. prosecution of persons charged with a violation of law, and in that respect occupies a close official relation to the President in the execution and performance of the trust reposed in him by the Constitution, by the laws, and by the peculiar duties pertaining to his office as the exec: utive head of the nation.

The Supreme Court said in the case of McAllister, “What may be the powers of the President over Territorial judges, now that section 1768 is repealed, is a question we need not now discuss.” So it may be seen, that although the case is cited, it does not decide the exact question at issue in this proceeding. In the case of Ex parte Hennen (13 Pet., 259) it is said, “All offices the tenure of which is not fixed by the Constitution or limited by law must be held either during good behavior or (which is the same thing in contemplation of law) during the life of the incumbent, or must be held at the will and discretion of some Department of the G-overnment and subject to removal at pleasure.” Although the words “limited by law” are used by the court, in another place it is said, “ Ño one denied the power of the President and Senate jointly to remove where the tenure of office was not fixed by the Constitution, which was a recognition of the principle that the power of removal was incident to the power of appointment. Put it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone.”

In the case of the United States v. Avery (1 Deady, 204) it is held in substance that Congress, having the right to create an office, have the power to prescribe the term, and that the incumbent will hold as against the power of the President during the term for which he was commissioned. The question was not properly in the record of that case, and but reflects the opinion of the judge on the abstract question of the power of the President.

In the case of the United States v. Guthrie (17 Howard, 284) the question did not properly arise, and heuce the court refrained from a decision affecting the power of the President to remove the petitioner. The decision was placed upon the ground that mandamus was not the proper remedy to enforce the payment of the salary of a Territorial judge who had been removed by the President. Mr. Justice McLean delivered a dissenting opinion, in which he took the ground that the President had no power to remove an officer appointed by the advice and consent of the Senate, and in the opinion asserts many of the reasons which from the adoption of the Constitution had been used by the statesmen, jurists, and authors against the constitutional theory that the President has the right of removal.

In the case of Blake v. The United States (103 U. S., 227) Mr. Justice Harlan discusses at length by the citation of opinions of distinguished law officers of the Government and decisions of the Supreme Court the question of the power of the President to remove appointed officers both in the civil and military service of tbe Government. The case was that of a chaplain in the United States Army, and involved the question of the power of the President to remove an officer of the Army. The court in substance held that the President had the power to remove an officer of the Army by the appointment, by and with the advice and consent of the Senate, of his successor, and in support of this theory of the law quotes the opinion of Attorney-General Legare in reply to the inquiry of the President as to whether he could strike the name of an officer from the roll without a trial by court-martial, as follows :

“Whatever I might have thought of the power of removal from office, if the subject was res integra, it is now too late to dispute the settled construction of 1789. It is according to that construction, from the very nature of executive power, absolutely in the President, subject only to his responsibility to the country (his constituents) for a breach of such a vast and solemn trust. (3 Story Com. Const., 397, sec. 1538.) It is obvious that if necessity is a sufficient ground for such .a concession in regard to officers in the civil service, the argument applies a multo fortiori to the military and naval departments. * * * I have no doubt, therefore, that the President has the constitutional power to do what he did, and that the officer in question is not in the service of the United States.”

He also quotes with approbation the opinion of Attorney-General Cushing, in which he says:

“ I am not aware of any ground of distinction in this respect, so far as regard s the strict question of law, between officers or the Army and any other officers of the Government. As a general rule, with the exception of judicial officers only, they all hold their commissions by the same tenure in this respect. Reasons of a special nature may be deemed to exist why the rule should not be applied to the military in the same way as it is to civil officers, but the legal applicability to both classes of officers is, it is conceded, the settled construction of the Constitution. It is no answer to this doctrine to say that officers of the Army are subject to be deprived of their commissions by the decision of a court-martial. So are civil officers by impeachment. The difference between the two classes is in the form and mode of trial, not in the principle, which leaves unimpaired in both cases alike the constitutional power of the President.”

The court held as the ultimate conclusion of law, that the appointment of the successor of Blake with the advice and consent of the Senate operated in law to supersede him, and thereby to remove him from bis position as an officer of the Army.

As lias been said, tbe omission of the words at the pleasure of the President” from section 769 as found in the act of 1820 became a necessity, as the Eevised Statutes adopted the substance of the acts of 1867 and 1869, in which the pleasure of the President was denied. The object of the repeal of the sections of the Eevised Statutes (embodying the substance of the tenure of office act) by the act of 1887 was to restore the law to what it had been prior to 1867, and thereby leave to the President the exercise of the power of removal, as it had existed from 1789 to 1820, by constitutional interpretation, and from 1820 to 1867 by the terms of the act of 1820. Section 769 limits the term of the office, but that does not necessarily limit the right of the President to remove before the expiration of the term, and this aside from the question as to whether Congress can limit the power of removal.

If the contention of the claimant be true, that the President even with the advice and consent of the Senate can not remove, then the claimant’s possession of the office can be reached only through the medium of an impeachment. This construction of the statute might result in the holding of many officers unworthy and incompetent until the end of the term, because it would be practicably impossible to determine the question of removal by the slow and tedious process of impeachment. If the claimant, as district attorney, has the right to remain in office during the time limited in his commission, every other officer of the United States appointed for a specified period would have the same right, and to apply to them all the proceedings of impeachment would involve the administration of the Government in endless confusion and disturbance.

Under the tenure of office act, the remedy was in the power of the President and Senate; but under the construction that the incumbent has the right to hold except as against the power of impeachment, that remedy is taken away and the officer is beyond the jurisdiction and control of the power from which he derived his authority to act. Upon any theory of the law, the power of removal is incident to the power of appointment, and if the President and Senate concur in the removal, it fills the measure of requirement as contended for by the theory that the President alone is not authorized to remove. The court said in the Blake Case that the appointment of his successor wifh the advice of the Senate operated to supersede him; yet the act of 1866 provided that an officer should not be removed in time of peace except upon the sentence of a court-martial or in mitigation thereof.

The term of four years as used in section 769 is a limitation beyond which the officer can not serve without a new appointment, but was not intended to limit the power of the President' in the removal of officers holding Federal positions by appointment of the Executive. The officer is to hold for four years subject to the conditions prescribed bylaw,” and by the repealing’ effect of the act of 1887 the four years became subject to the power of the President to remove, as recognized by constitutional construction and the act of 1820 prior to the adoption of the act of 1867.

The President, on the 26th of May, removed the incumbent, and on the 22d of May following the Senate concurred in the appointment of his successor, thereby ratifying and confirming the removal of the claimant. That ratification removed him from office, and unless he had a vested legal right in his office and its consequent emoluments, his removal is a complete answer to his demand in this proceeding. It is the opinion of the court that he took the office subject to the right of removal, and the removal bars his right to recover. As we understand, the practice of the executive department, since the passage of the act of 1887, has been in accordance with its practice before the enactment of the act of 1867, and that construction sanctions the theory of the law indicated by this opinion. It is the judgment of the court that the petition be dismissed. .  