
    EMBRY’S CASE.
    Bowling Embry v. The United States.
    
      On the Proofs.
    
    
      A postmaster commissioned for four years, in 1867, “subject to the conditions proscribed by law,” is suspended by the President under the Tenure of office Act, 1669. A substitute is appointed and nominated to the Senate as Ms successor. On the lóth July, 1869, the “ next session of the Senate ” ends. On the 21 st the Postmaster-G-eneral notifies the postmaster by mail to resume the office. On the 25 íA he does so.
    
    I. The President has authority uuder the Tenure of office Act, 5th April, 1869, (16 Stat. L., 6,) to suspend a postmaster appointed for four years in 1867, whose commission was in terms “ subject to the conditions prescribed by law.”
    
    
      II. A person appointed by the President to perform the duties of a postmaster suspended under the Teuure of office Act, 1869, (16 Stat. L., 6,) is entitled to the-salary and emoluments of the office -while he performs the duties of the suspended officer, who is not entitled to the salary until he actually resumes the office.
    
      The Reporters’ statement) of the case:
    The following axe the facts as found by the court:
    I. On the 20th of April, 1867, the claimant was appointed by the President of the United States, by and with the advice and consent of the Senate, deputy postmaster at Nashville, in the State of Tennessee, for the term of four years from that day, and the commission issued to him was in the following words:
    “Andrew Johnson, President'of the United States of Amér-ica, to all who shall see these presents, greeting:
    “ Know ye, that reposing special trust and confidence in the integrity, ability, and punctuality of Bowling Embry, I have nominated, and, by and with the advice and consent of the Senate, do appoint him deputy postmaster at Nashville, in the State of Tennessee, and do authorize and empower him to execute and fulfill the duties of that office according to law; and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining, unto him, the said Bowling Embry, for the term of four year’s from the day of the date hereof, subject to the conditions prescribed by law.
    “In testimony whereof I have caused these letters to be made patent and the seal of the United States to be hereunto affixed.
    “Given under my hand, at the city of Washington, the twentieth day of April, in the year of our Lord one thousand eight hundred and sixty-seven, and of the Independence of the United States of America the ninety-first.
    [L. s.] “ANDREW JOHNSON.
    “ By the President:
    “William H. Seward,
    “ Secretary of State.'"
    
    
      II. Under this appointment the claimant entered upon the discharge of the duties of said office, and continued therein until she 27th of May, 1869, when, in .consequence of an order made by the President of the United States, under the Act 'April 5,1869, suspending him from said office, he delivered over said office to one Enos Hopkins, who had been designated by the President to perform the duties of deputy postmaster at Nashville, and the commission authorizing him to perform said duties was in the following words:
    “ Ulysses S. Grant, President of the United States of America, to all who shall see these presents, greeting :
    “ Know ye, that by virtue of the authority conferred upon ■the President by the second section of the act of Congress approved April 5, 1869, entitled ]An act to amend an act regulating the tenure of certain civil offices,’ I do hereby suspend Bowling Embry from the office of deputy postmaster at Nashville, in the State of Tennessee, until the end of the next session of the Senate; and I hereby designate Enos Hopkins to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all provisions of law applicable thereto.
    “ In testimony whereof I have caused these letters to be made patent, and the seal of the United-States tobe hereunto affixed.
    “ Given under my hand, at the city of Washington, the fifth day of May, in the year of our Lord one thousand eight hundred and sixty-nine, and of the Independence of the United States of America the ninety-third.
    [L. s.] . “U. S. GRANT.
    “ By the. President:
    ‘‘Hamilton Fish,
    “ Secretary of State.”
    
    III. On the 6th of December, 1869, the President nominated the said Hopkins to the Senate for appointment as deputy postmaster at Nashville, and on the 15th of July, 1870, the Senate resolved that it did not advise and consent to that appointment.
    IY. On the 21st of July, 1870, the following communication was addressed and sent by the First Assistant Postmaster-General to the claimant:
    
      "PoST-OEEICE DEPARTMENT,
    ‘ ‘Appointment-Oeeice,
    . “ 'Washington, D. G., July 21, 1870.
    
      “ Sir : In the case of Enos Hopkins, rejected by the Senate of the United States, under date of July 15,1870, he is, under the provisions of the acts of March 2, 1867, and April 5,1869, regulating the tenure of certain civil offices, inhibited from holding, exercising, or discharging any of the duties pertaining to the office of postmaster at Nashville, Tenn. You should take charge of said office at once under your unexpired commission, for the time being, and until the case can be submitted to the Attorney-General. Upon taking charge of the office you will receipt to Mr. Hopkins (in duplicate) for all the public property in his possession, and report the date of your doing so to this office.
    “Very respectfully, &c.,
    “J. W. MARSHALL,
    
      “First Assistant Postmaster-General.
    
    
      "Bowling- Embry, Esq.,
    “ Nashville, Tenn?
    
    In pursuance of the authority of said communication, the claimant again took possession of said office on the 25th of July, 1870.
    Y. While the claimant was in possession of said office, prior and up to the 27th of May, 1869, he gave his personal attention to the business thereof to the entire satisfaction of the Post-Office Department and of the people of Nashville, and punctually and promptly rendered to the Sixth Auditor of the Treasury his accounts of all moneys collected and disbursed by him during that period, and promptly paid over to the United States all balances due from him to them, and his account was satisfactorily settled and adj usted on the books of the said Auditor’s Office.
    YI. During the whole period from May 27,1869, to July 25, 1870, and afterward, the salary of said office was fixed by the Postmaster-General at the rate of $4,000 per annum; and the same amounted for that period to $4,645.47, which was paid to said Hopkins, and refused to the claimant, who applied to the Postmaster-General for payment of the same to him.
    
      
      Mr. M. E. Carpenter and Mr. J. E. Embry for the claimant:
    It is clear that Mr. Madison, and those who concurred with him, were earnest and decided in their construction that the . Constitution gave to the President no authority to remove at pleasure, or in his discretion, aiid their denunciation of it is found in the expressions that it would be an abuse of power beyond conception, and a crime so great that it would be an act of maladministration. If such wanton removal, therefore, on the part of the President, of an officer discharging his duties faithfully is “an abuse of power” and “an act of maladministration,” such removal is not warranted by the Constitution, but is in direct .violation of it. It is equally clear that Congress cannot by law authorize or empower the President to do an act which Mr. Madison denounces as a crime. In commenting upon the doctrine announced, “that the power of displacing from office is subject to legislative discretion, because, it having a right to create, it may limit or modify as it thinks proper,” Mr. Madison said “that, if the legislature has a power such as is contended for, they may subject and transfer at discretion powers from one department of our Government to another; they may, on that principle, exclude the President altogether from exercising any authority in the removal of officers.” The doctrine thus declared by this eminent statesman, aud by all who supported his views, is that an act of Congress can neither enlarge nor abridge the powers of the President as to removals; and their voices were all earnestly united in support of the principle that the officer could not be removed while he was faithful to his trust. From 1789 to 1867, a period of seventy-eight years, no effort was made by Congress to authorize the President to suspend a civil officer, and the very fact that none of the illustrious men who occupied the presidential office from 1789 ever attempted to exercise such a power is the highest evidence that, in their judgment, reason, conscience, and the Constitution utterly forbade and prohibited it. Nowhere in the Constitution is the House of Representatives, by the letter or spirit of that instrument, or by inference or implication, invested with any power or authority over appointments or removals of officers, with the single exception of the power, with the concurrence of the Senate and President, “to vest the appointment of Such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments.”
    Throughout the long debate by the members of the First Congress, several of whom were fresh from the work of framing the organic law, not a voice was heard to advocate the absolute power of the President over an officer; but those who admitted thepower of removal distinctly"qualified it with thecondition that the officer-must be deemed unfit to be continued in the public service. The sentiments and spirit of the debates clearly demonstrate that a bill clothing the President with power to remove or suspend at pleasure, or in his discretion, any civil officer, would have been indignantly voted down. It would have been regarded as a legislative license to the President to commit a gross wrong, in violation of the Constitution, and subversive of the rights of the Senate and of honest and faithful officers.
    In the case of Marlmrtj v. Madison, (1 Crunch, 137,) Chief-Justice Marshall said “the appointment conferred on him (Marbury) a legal right to the office for the space of five years.”
    In the case of the United States v. Guthrie, (17 Howard, 284,) involving the right to a writ of mandamus, in a dissenting opinion as to the writ, Justice McLean, in alluding to a remark of the,Attorney-General that the right of removal by the President was a constitutional power, said : “There is no such power given in the Constitution. It is presumed to be in the President, from the power of appointment. This presumption, I think, is unwise and illogical.” The learned justice, in commenting upon the theory of removal, says: “By a temporary appointment the public service is now provided for in case of death, and the same provision could be made where immediate removals are necessary. The Senate, when called to fill the vacancy, would pass upon the demerits of the late incumbent. This, I have never doubted, was the true construction of the Constitution, and I am able to say it was the opinion of the late Supreme Court, with Marshall at its head.”
    Mr. Justice Story, in his Commentaries on the Constitution, (vol. 2, 400, note,) referring to the final vote in the debate of 1789, says that it “seems to have expressed the sense of the legislature that the power of removal by the Executive could not be abridged by the legislature, at least not in cases where the power to appoint was not subject to legislative delegation.” The tenure of office act of 1809 is, therefore, in opposition to tbe construction of the Constitution by the Congress of 1789, first, because it abridges the power of removal by the President; ' and, second, because the office in question was one where the power to appoint was subject to legislative delegation ; that is, Congress could have delegated the appointment either to the President, the courts of law, or head of the Department. The same learned judge, in giving the views of many of the early statesmen upon this question, presents the appalling consequences which they predicted, by conferring this power upon the' President, in its corruptions upon elections, declaring that it was “monarchical and arbitrary,” and “was dangerous to the best interests as well as to the liberties of the country;” that all the ■officers would be the “ mere tools and creatures of the President.”
    He presents also the argument of those who favored the power of removal, claiming it only upon the ground that it was indispensable for a due execution of the laws, and conceding only the right to the President to remove an unfaithful public officer, or to displace a corrupt one charged with the expenditures of the Government'; that those who favored this power argued that it was impossible that the President would abuse the patronage of the Government, or his power of removal, to the base purposes of gratifying a party, or of displacing upright and excellent officers, and that removals from such motives would be an impeachable offense. In regard to this power of removals without cause,* he also declares that “ many of the most eminent statesmen in the country have expressed a deliberate opinion that it is utterly indefensible.”
    In a debate in-the Senate of the United States, in February, 1835, Mr. Webster expressed himself fully and unreservedly, upon this question of removal by the President, and as for two generations he has been styled, regarded, and reverenced as the “ great expounder of the Constitution,” his words come down to us with the weight and authority of an oracle. In referring to the construction in 1789, he says: “ It appears to nfe, however, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution in this respect by the decision of the First Congress. * * * That although the framers of the Constitution meant to confer executive power on the President, yet they meant to define and limit that power.” In referring to his construction of the second article, he said that he understood the Oonstitution as saying that “the executive power herein granted shall be vested in a President of the United States.” His able and unanswerable argument is summed up in a single sentence: “But it is the President and the Senate, and not the President alone, who hold the power of appointment; and, therefore, according to the true construction of the Constitution, it should be the President and the Senate, and not the President alone, who hold the power of removal.” Mr. Calhoun and other able statesmen concurred in these views. ,
    If the law of 1867 was sound, just, and constitutional, if it separated, with the invisible sword of the Constitution, the exact power, duty, and authority of the President from the power, duty, and authority of the Senate, it cannot be denied, as the result of reason and truth, that the act approved April 6,1869, is a departure from and a violation of the Constitution. This act empowers the President to suspend any civil officer, in his discretion or at pleasure, without any cause whatever, which is directly in opposition to the act of March 2, 1867. From what clause in the Constitution, either direct or by the remotest implication, will it be claimed that the House of Bepresent-atives can confer such power upon the President and withhold it from the Senate, and that the latter body can willingly surrender its power and its duty in order to license the President, through the forms of law, to violate the Constitution 9 That the President cannot displace an officer during the sessions of the Senate, without its advice and consent, is beyond doubt or controversy, and it does not matter how gross may be the misconduct, the the crime, or the incompetency of the officer. A single clause in the Constitution gives to the President “ power to fill up all vacancies that may happen during the recess of the Senate.” The Senate is in session about six months in the year, and is it possible to suppose that the framers of the Constitution intended to throw around every officer a complete .shield of protection» from removal by the President, at the option of the Senate, for one-lialf of the year, and that it should completely strip him of this protection for the other half of the year, and leave him a mere foot-ball for the Executive whims, no matter how faithful and competent the officer might be 9 Such a construction does the grossest violence to the English language, to the Constitution, and to the framers of fihat instrument. Can the President, at pleasure and without cause, dismiss an officer and claim that the vacancythus created by himself “ happened”? Mr. Justice Story said (2 Com., 417) that “ the word ‘ happen had relation to some casualty not provided by law. As beyond doubt or question the Senate has complete control and check over the tenure of the office while it is in session, what reason is there that that body should be deprived of all control over and protection to the officer during the recess 1 The sole reason is that, as the President is charged with the execution of the laws, he must have competent and honest officers to aid him in that duty. This will be granted by all men everywhere. To concede this, denies the power of the President to remove or displace unless the officer is incompetent or dishonest. To go a step beyond this, by the authority or license of Congress, is a violation of the Constitution, and is arbitrary and despotic. If the act of 1867 was constitutional, that of 1869 was clearly in violation of it; otherwise Judge Story and Mr. Webster greatly erred in their matured opinions as to the grants- of power to each department, and the necessity and duty of each in not encroaching upon the other.
    In this case the claimant had for nearly two years prior to the passage of the act of April 5,1869, been appointed and commissioned deputy postmaster at Nashville, Tennessee, and was in the discharge of the duties of his office ; and by virtue of his commission, which was his deed and title, was invested with a full and complete “yight to his office during the whole term for which he had been appointed. (Atty. Gen. Opins., vol. 13, 308.)
    The condition of an officer suspended under said act is an anomalous one. He is not removed from office. His title to the same remains complete until the act of the President is affirmed by the Senate, and his bond remains in full force, or at least it is not canceled or void.
    The law of 1869, as applied to the claimant, was in.the na-. ture of an ex post faeto law, depriving him of a vested right, which he held by a commission under the authority of the Senate, and of which he was deprived through the agency of the House of Representatives, and not for any of the causes enumerated in the act of 1867, under which he was commissioned.
    If the President has this absolute right of removal or suspension, without cause, he can remove every civil officer of the highest qualifications and of unquestioned integrity immediately upon the adjournment of the Senate, and appoint men utterly corrupt, dishonest, and ignorant. Every appointee, confirmed by the Senate on the very day of its adjournment, on March 4, for their integrity and competency, could be removed on the 5th, (and for a period of nine months,) to make room for those whom the Senate had, the week before, unanimously rejected as totally unfit to enter the public service. Does not this at once paralyze and abolish the constitutional power and prerogative of the Senate to advise and consent to appointments"? Does it not practically render its privilege inoperative, and utterly destroy a power granted in express terms by the Constitution % Did the framers intend this, and does that instrument mean that the President can thus, at pleasure, usurp the powers granted to both %
    
    
      Mr. Assistant Attorney General Simons for the defendants :
    The claimant has no cause of action. His office was created by act of Congress and was of a class which (by legislation) required the concurrence of the Senate in the appointment. The Constitution, while providing for appointments, (article 2, § 2,) is silent as to the power of removal where the tenure of office is not fixed. On general principles, however, the power of appointment would seem to imply a power to remove as a necessary incident. The President is sworn to faithfully execute his office, and one of his constitutional obligations is to “take care that the laws be faithfully executed.” It is to enable him to discharge this duty that very many if not most of the existing offices are established; hence, the selection and supervision of incumbents of such offices is his especial and rightful function, and his prerogative is .clearly recognized by the Constitution, in providing that he “shall commission all the officers of the United States,” and nominate all not specially excepted. The Constitution, .however, limits this Executive authority by requiring, as to certain officers specifically mentioned, the assent of the Senate to their appointment, as to that, also, of all others, except such inferior officers as Congress should otherwise provide for, as therein authorized.
    It is conceded that the claimaut was one of those inferior officers whose appointment the Congress might have vested, as they thought proper, in the President alone, or in the Postmaster-General, as they have done in the case of most deputy postmasters. The fact that he, with other postmasters of his class, are appointed by the President, with the approval of the Senate, is because Congress has thought proper to so provide, or at least has not otherwise provided. The President’s power to remove an officer whose appointment required the Senate’s approval, without that approval, has been much discussed. Until the passage of the Tenure of office 'Act March 2,1867, (14 Stat. L., 430,) it was practically conceded by the legislative branch. (Story on the Constitution, §§ 1537-1545.) In Uso parte Rennen, (13 Peters, 230,) the Supreme Court evidently regarded the legislative action as amounting to a settled construction in favor of the pow er, and this court in Gratiot’s Case (10. Cls. B., 259) so adjudged. . It may be questioned, perhaps, if the decisions go further than to maintain the executive power in the absence of legislation to control it, and such legislation the Tenure of office Acts since passed present. The provisions of the original act of 1867 were the chief subject of contention on the impeachment and trial of President Johnson, to the record of which reference may be made for information on the general question. In this case, however, the claimant’s position as understood does not call for extended investigation‘of the main controversy there, as the President’s acts herein were explicitly based upon and • in perfect conformity with the existing law on the subject. The point raised by the claimant appears to be that Congress could lawfully restrain and regulate the executive power as to absolute removal, and could also empower the President to suspend an officer for cause during its recess, and until such time as the Senate could act on the case, as specified in the act of 1867, but could not authorize such suspension in his discretion as provided by the amendment of 1869. This distinction, on which the provision of 1869 is claimed to be null and void, seems unsubstantial ; for as the claimant admits that his office was one where the power to appoint was subject to legislative delegation, he is certainly bound to show why the legislative power, which was competent in his opinion to authorize the President to remove or suspend in the recess for certain causes, was not competent to vest the same power in the executive discretion. There is surely nothing in the Constitution to sustain a position so derogatory to the functions and character of either the executive or the legislative branch of the Government.
    
      It needs no argument to prove that the President cannot perform his duty, under the Constitution, during the recess of the Senate without the power in some way to dispense with the services or prevent further action of officers, as may be required in his judgment by the public interest. If'the Constitution and laws do not permit him to remove in such case because the needed approval of the Senate cannot then be obtained, a case is plainly presented in which he is disabled from performing his manifest duty unless some remedy is provided by legislation, some adequate authority invested in him to carry out his obligation ; and such a remedy and authority Congress, as in duty bound, under the last clause of the ninth section of article 1 of the Constitution, has provided in the enactment in question. If they had power to legislate at all in the premises, (and this is not questioned,) they had power to make this regulation, and the question of its expediency or justice is not subject to judicial revision. The provision is, in fact, undeniably well framed to accomplish the legislative purpose, (which was presumably lawful,) and peculiarly free from objection on the part of the class whose interest it protects, and of the claimant himself, who was reinstated by means of it. But if it were otherwise, what standing has he as a complainant? His appointment for a specified term, at a given compensation, was not a contract, nor creative of a vested right in any such sense as to exempt him from the effect of legislative action, even though it should affect the tenure, compensation, or any other incident of his position. (Story on the Const., § 1393, note 3; Cooley’s Const. Lim., 3d ed., 276 and note j Butler v. Pennsylvania, 10 How., 402.)
    Begarded even as based on a contract, his case is not meritorious. He accepted the appointment after the passage of the original Tenure of office Act, (which provided, as in the act of 1869, that in case of suspension the officer suspended should not receive the salary or emoluments of the office during the period of such suspension,) took the benefit of the acts, submitted without protest to the suspension, rendered no service for the salary demanded, and which has been paid to the incumbent who earned it, and now to compel the defendants to pay over again to him this unearned money, in the face of the statute prohibiting it, charges that the legislature had no power to restore to the President the discretion to suspend in recess for the discretion to remove, which he constitutionally exercised from the foundation of the Government to March 2, 1867, as conceded by the Congress and affirmed by the courts. He urges, it is true, .that the suspension was without just cause, but that issue .is not triable here. The presumption is otherwise, and the action of Congress under the act of 1869 decides nothing on that point. His attitude, moreover, as respects the jurisdiction of the court is peculiar. In giving the court jurisdiction of claims founded upon any law of Congress it is questionable, perhaps, if it was intended to include a claim for what a law of Congress declares shall not be allowed. Second, a portion of the claim is barred by the statute of limitations. The petition was filed March 23, 1876, and his claim is for salary from May 27, 1869, to July 25, 1870. The accounts of the office were made up quarterly in the fiscal year. Prior to the quarter in which March 23, 1870, would fall are two quarters and a fraction of the quarter ending June 30. 1869, for salary of which there can be no recovery, as it was due and payable at the end of the quarter. (Carter's Cáse, 6 O. Cls. R., 31; Bachelor’s Case, 8 id., 238.)
   Drake, Ch. J.,

delivered the opinion of the court:

Upon the facts as found, the court hold that the claimant had no cause of action.

Though his appointment as postmaster was expressed to be for four years from the date of his commission, yet the same commission also expressed that the appointment and the term were “ subject to the co'uditions prescribed by law.” That meant not only the conditions then existing, but such as Congress might thereafter prescribe. As the office existed by the authority of Congress, the right of Congress to legislate in reference to it as it pleased is one of the things not to be questioned.

The second section of the Act April 5,1869, “ to amend An act regulating the tenure of certain civil officers,(16 Stat. L., 6,) enacts “that during any recess of the Senate the President is hereby empowered, in his discretion, to suspend any cjvil officer appointed by and with the advice and consent of the Senate, except judges of the United States courts, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed in his discretion by the designation of another, to perform the duties of such suspended officer in the meantime; and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the sus-I)ended officer, and shall, during the time he performs his duties, be entitled to the salary and emoluments of such office, no part, of which shall belong to the officer suspended; and it shall be the duty of the President, within thirty days after the commencement of each session of the Senate, * * * to nominate persons * * * in the place of all officers suspended ; and if the Senate during such session shall refuse to advisé and consent to an appointment in the place of. any suspended officer, then, and not otherwise, the President shalhnominate another person as soon as practicable, to said session of the Senate, for said office.”

The Senate was in recess on the 27th of May, 1869, when the President suspended the claimant from office, and designated a person to perform his duties as postmaster, and the claimant delivered over the office to him. This was the exercise of an entirely discretionary authority vested in the President, and which he had the most undoubted right to exert, with or without cause, and entirely independent of the question whether there was any official misconduct on the part of the officer. The claimant may have been the best postmaster ever known, without the absolute right of the President to suspend him being at all diminished; or he may have been the worst ever known, without that right being an atom strengthened.

And the law leaves nothing open to doubt as to what should become of the salary and emoluments of the officer during the period of suspension; not only providing that they should go to the person designated to perform the suspended officer’s duties, but that no part of them should belong to the suspended officer.

This would seem to leave no possible ground for any right in this claimant to any part of the salary of the office while he was under suspension. • But it was urged on his behalf, that, at any rate, he is.entitled to the salary, at fhe rate of $4,000 per annum, from the 15th of July, 1870, when the Senate rejected the nomination of his successor, to the 25th of that month, when the office was surrendered back to him. This position is untenable, in view of the express declaration of the act that the person so designated “ shall, during the time he performs Ms dirties, be entitled to the salary and emoluments.” And, as if foreseeing that some such claim as this might be made and the Government be made liable to pay two salaries for the same office at the same time, one of them to a person who performed no work to earn it, the negative declaration is made that no part of the salary during that time should belong to the officer suspended. The act very properly gave the salary to him who performed the duties, and denied it to him who did not perform them.

The claimant’s petition is dismissed.

Loeing, J., though not present when this opinion was announced, concurred therein.

Nott, J.,

dissenting:

Though it be conceded that the power of removal is vested by the Constitution in the whole of the appointing power, that is to say, in the President and Senate, and not in the President alone, nevertheless it seems to me incontrovertible that an intermediate power of suspension during, the absence of the Senate must exist which can be ascertained and regulated by law.

That law in the present case is the Temvre-of office Aet, 1869, (16 Stat. L., 6, § 2,) which provides that “during any recess of the Senate, the President is authorized to suspend any civil officer” “until the end of the next session of the Senate, and to designate some suitable person, subject to be removed in his discretion by the designation of another, to perform the duties of such suspended officer in the mean time.” It is evident from this that the utmost limit of the suspension is “until the end of the next session of the Senate,” when it ceases absolutely ex m termini, and that the powers and duties and rights and emoluments of the substitute are confined to the period designated as “in the mean time.” On the instant that the Senate adjourns the office reverts to the officer with all the profits which the law attaches to it; and on the same instant the right of the substitute to administer its affairs- ceases, and he becomes an intruder holding over in'his own wrong. Uo action of the Executive is necessary to effect the restoration, and no action of the Executive could retard it — still less could the inaction of an executive department override the statute. Against these very plain and certain terms of the act nothing can be said except that it is subsequently provided that the substitute shall receive the salary of the suspended officer “ during the time he performs his duties.” The statute is thus expressed because that “ time,” which iu no event can extend beyond the end of the next session of the Senate,” may be shortened in various ways ;' and the statute means that a substitute who serves for less than the whole period of suspension shall be paid only for the time he serves. But it is manifest that a statute which expressly limits the time for which an officer can be ousted from his office never could have been intended as an authority for the substitute to go on performing the duties of the office, and receiving its salary, after the period of suspension has passed; nor can I conceive of such a thing as an officer legally invested with an office as to which another man, not legally entitled to hold it, may nevertheless perform its duties and receive its emoluments.

The point is of little importance in the present case; but as the decision will incorporate in the statute a provision not to be found there, and will confer upon the executive departments a discretionary power to prolong the suspension of an officer which it was never intended they should have, I must dissent from so much of the decision as denies the right of the claimant to recover for the ten days’ salary of his office withheld from him by the Post-Office Department after the period of his suspension had expired.

Peck, J., was of the same opinion.  