Imágenes de páginas
PDF
EPUB

* *

* * *

*

*

*

The following extracts from the able and interesting opinion of Chief Justice Marshall refer to the point in question: "Some point of time must be taken when the power of an executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. * * *The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. * The commission being signed, the subsequent duty of the secretary of state [affixing the seal] is prescribed by law, and not to be guided by the will of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. * * * In considering this purpose, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential. It is not necessary that the delivery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the president. If, then, the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded and transmitted to the party. * * It has occurred as possible, and barely possible, that the transmission of the commission and the acceptance thereof, might be necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment which must precede it, and which is the mere act of the president. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. * * * A commission is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. 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. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so appointed, he has a right to the commission which the secretary has received from the president for his use."

*

* #

*

* *

APPENDIX.

THE ELECTION OF FEDERAL OFFICERS.

GENERAL CONSTITUTIONAL PROVISIONS.

Article XIV.

Section 1, fourteenth amendment: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

(For the next section relative to the denial or abridgment of the right to vote, see paragraph 3, section 2, article I, of constitutional provisions for representatives, post.)

Section 3, fourteenth amendment: No person shall be a senator or representative in congress, or elector of president, and vice president, or hold any office, civil or military, under the United States, or under any state, who having previously taken an oath as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two thirds of each house, remove such disability.

Section 5. The congress shall have power to enforce, by appropriate legislation, the provisions of this article.1

Article XV.

Section 1. The right of citizens of the United States to vote, shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.

Section 2. The congress shall have power to enforce this article by appropriate legislation.2

THE PRESIDENT.

CONSTITUTIONAL PROVISIONS.

Article II., Section 1.

1. The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, together with the vice president, chosen for the same term, be elected as follows:3

2. Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or person holding an

1. Candall v. The State of Nevada, Wall., 35; Paul v. Virginia, 8 Wall., 108; Ward v. Maryland, 12 Wall., 418; Slaughter House cases, 16 Wall., 36; Bradwell v. The State, 16 Wall., 130; Bantmeyer v. Iowa, 18 Wall., 129; Minor v. Happersett, 21 Wall., 162; Walker v. Sanvinct, 92 U. S., 90; Kennard v. Louisiana; Ex rel. Morgan, 92 U. S. 480; United States v. Cruikshank, 92 U. S. 542; Munn v. Illinois, 94 U. S. 113.

2. U. S. v. Reese et al., 92 U. S., 214; U. S. v. Cruikshank, 92 U. S., 542. 3. Chisolm, Ex'or, v. Georgia, 2 Dallas, 419; Leitensdorfer et al. v. Webb, 20 Howard, 176; Section 152 Revised Statutes, post.

office of trust or profit under the United States shall be appointed an elector.1

3. The congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States. 2

4. No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

5. In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the congress may, by law, provide for the case of removal, death, resignation or inability both of the president and vice president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed or a president shall be elected.3

Article XII of Amendments.

The electors shall meet in their respective states and vote by ballot for president and vice president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice president, and of the

1. In re Corliss, 16 Am. Law Register, 15. Held by the Supreme Court of Rhode Island that ineligibility by reason of holding an office at the time of the election cannot be removed by a subsequent resignation of the office. The effect of such ineligibility on the part of the person who receives the highest vote is to render the election void. The next highest candidate is not elected.

2. See sections 131 and 135 U. S. Revised Statutes, post.

3. See sections 146, 147, 148, 149, 150 and 151 U. S. Rev. Stat., post.

number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the senate; the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice president shall act as president, as in the case of death or other constitutional disability of the president.1 The person having the greatest number of votes as vice president, shall be the vice president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.

STATUTORY PROVISIONS.

Section 131. Except in case of a presidential election 1. See Sections 132 to 145 of U. S. Revised Statutes, post.

« AnteriorContinuar »