officers, such as revenue officers or postmasters in the larger cities, the constitutionality of the law would undoubtedly be subjected to judicial examination.

§ 693. Nominations.

With reference to the President's power of appointment it is to be observed that nominating, appointing, and commissioning to office are distinct acts.

The nomination is exclusively in the hands of the President. During the first years of the government the suggestion was several times made that the Senate might propose names for nomination to the President; but, whenever made, the suggestion was disapproved of as clearly not warranted by the Constitution. An appointment to office is not completed until signed by the President. Therefore, even after sending a nomination to the Senate and even after the approval of that body has been given, the President may, having changed his mind, refuse his signature to a commission. His signature having once been appended, however, the appointment is complete, and the delivery of the commission by the head of the appropriate executive department may be commanded by mandamus, provided, of course, a federal court has, by statute, been granted jurisdiction to issue the writ. This was determined in Marbury v. Madison. In that case, after quoting the clauses of the Constitution conferring the appointing power, and the act of Congress, providing that the Secretary of State shall keep the seal of the United States and affix it to all civil commissions to officers of the United States appointed by the President, by and with the consent of the Senate, Marshall says:

"These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the president, and is completely voluntary. 2d. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. 3d. The commission. 61 Cr. 137; 2 L. ed. 60.

To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. He shall,' says that instrument, commission all the officers of the United States.'

66

The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution."

"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 the 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 necessarily the appointment, though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done everything to be performed by him.

"Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

"The last act to be done by the president is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete. transaction."

"The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by

the will of the president. He is to affix the seal of the United States to the commission, and is to record it."

§ 694. Creation of Offices.

All offices are created either by the Constitution itself, or by Congress. The President, therefore, has not the power to create an office by directing some person to perform certain functions. However, the President as well as other executive officials may, for their assistance in executing their official duties, employ persons to perform certain specific duties. These persons have, however, legally speaking, no official powers, that is, they have no authority to issue orders to others, and for compensation for their services they must look either to contingent funds, the expenditure of which is placed in the discretion of the department employing them, or to a subsequent appropriation by Congress.

§ 695. Appointing Powers of Congress.

The Congress has no appointing power, beyond the selection of its own officers. It may create an office but not designate the one to fill it.

Congress, by acts passed in 1823, 1834, and 1849, directed the judge of the territorial court of Florida and the judge of the district court for the northern district of Florida to act as commissioners for the adjudication of claims arising under the Treaty of 1819 with Spain. This act was held unconstitutional in United States v. Ferreira" upon the ground that it attempted to impose the performance of administrative duties upon judicial officers, but the opinion further continues:

"A question might arise whether commissioners appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws. And, if they are to be regarded

13 How. 40; 14 L. ed. 42.

as officers, holding offices under the government, the power of appointment is in the President, by and with the advice and consent of the Senate; and Congress could not, by law, designate the persons to fill these offices. And if this be the construction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, everything that has been done under the Acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made, might be recovered back by the United States."

However, in a case where Congress had provided for a park commission and had provided that two of its members should be existing officers of the United States, the court said:

"It is pointed to as invalidating the act that while Congress may create an office, it cannot appoint the officer. As, however, the two persons whose eligibility it questioned were at the time of the passage of the act and of their action under it, already officers of the United States who had been heretofore appointed by the President and confirmed by the Senate, we do not think that because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted and it has frequently been the case, that Congress may increase the power and duty of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." 7

It has been held that Congress may authorize a particular person or official to perform a specific act, though it may not create an "office" for that person, in the sense that he is made an officer of the United States or entitled to any emolument or profit.

7 Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 170.

8 See Kentucky v. Dennison (24 How. 66; 16 L. ed. 717), in which it was declared that Congress might authorize, though it could not compel, state officers to perform certain duties with reference to the interstate extradition of fugitives from justice.

§ 696. Appointing Power May be Vested Only as Provided by the Constitution.

The Congress may not vest the appointment of officers elsewhere than, as permitted by the Constitution, in the President alone, the President and the Senate or the heads of departments. In Ekiu v. United States is said:

"It was argued that the appointment of IIatch was illegal because it was made by the Secretary of the Treasury, and should have been made by the superintendent of immigration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than in the President alone, in the courts of law or in the heads of departments;' the Act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the Secretary of the Treasury; and appointments of such officers by the superintendent of immigratien could be upheld only by presuming them to be made with the concurrence or approval of the Secretary of the Treasury, his official head." 10

§ 697. Civil Service Requirements.

The question has been at times raised as to the constitutional power of Congress, while providing for the appointment of officials by the President, by and with the advice of the Senate, to require that the appointees shall be selected from certain classes of persons, namely, those who have satisfied specified educational and other tests applied by the Civil Service Commission. Though the courts have never had occasion to pass upon this point, the constitutionality of the provision would seem to be fairly certain. The same sort of rules have long been established and followed with reference to appointments in the army and navy, and the decisions of the state courts support the practice as to the appointment of state officials.

9 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146.

10 Citing U. S. Const., Art. II, Sec. II; United States v. Hartwell, 6 Wall. 385; 18 L. ed. 830; Stanton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 Fed. Rep. 506.