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Section 2 of the code provides that the judicial power in the District

Shall continue as at present, to be vested in

“First. Inferior courts, namely, justices of the peace and police court; and

“Second. Superior courts, namely, the Supreme Court of the District of Columbia, the Court of Appeals of the District of Columbia, and the Supreme Court of the United States."

Section 60 of the code provides:

Constitution: The Supreme Court of the District shall continue as at present constituted, and consist of a chief justice and five associate justices, appointed by the President of the United States, by and with the advice and consent of the Senate, and holding their offices during good behavior."

Section 221 of the code reads as follows:

- Constitution: The Court of Appeals of said District shall continue as at present organized and shall consist of one chief justice and two associate justices, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall hold office during good behavior."

Section 42 of the code begins as follows:

"Constitution: There shall continue to be a Police Court in the District, as at present, consisting of two judges learned in the law, appointed by the President, by and with the advice and consent of the Senate, for the term of six years," etc.

This last section and the one following merely transcribe into the new code the provisions of law under which the police court was constituted and has been acting.

Comparing, in the light of this fact, the language of section 42 with that of sections 2, 60, and 221, above quoted, it seems clear that the intention was to continue, and not to terminate, the police court as at present existing. It will continue by virtue of the new law as it was constituted under the old. Your question is therefore answered in the negative. Respectfully,

P. C. KNOX. The PRESIDENT.

ARMY OFFICERS— APPOINTMENT-ORIGINAL VACANCY.

A, a captain in a regiment of volunteer infantry authorized to be raised

by the act of March 2, 1899 (30 Stat., 977), was appointed on June 14, 1901, a quartermaster in the Army, with the rank of captain, to rank as such from February 2, 1901. He accepted the appointment on June 27, 1901, and resigned on July 8 following. A captain of cavalry in the line of the Army was detailed in the Quartermaster's Department to fill the vacancy thus created, such detail being made under authority conferred by section 26 of the act of February 2, 1901 (31 Stat., 755). Held: That the vacancy thus created is not an original vacancy which can be filled by the appointment of a person similarly qualified, but must be filled by detail under the provisions of section 26 of the lastmentioned act. It being the intention of Congress, as expressed in the sixteenth section

of that act, not to require confirmation of appointments in the grade of captain in the Quartermaster's Department, the appointment of Captain A was not a recess appointment, the concurrence of the Senate was not necessary, and the action of the President alone constituted a

final and complete appointment. The only vacancy which the President is authorized to fill under sections

16 and 26 of that act is an original vacancy. After such vacancy has been filled there is no longer an original vacancy in that particular place, and any subsequent vacancy must be filled by promotion or by detail.

DEPARTMENT OF JUSTICE,

November 7, 1901. Sır: I have the honor to acknowledge the receipt of your letter of October 10, 1901, in which you request my opinion as to the right of the President to make an appointment as quartermaster, with the rank of captain, under the army reorganization act of February 2, 1901 (31 Stat., 748), as modified by a proviso to the army appropriation act of March 2, 1901 (31 Stat., 895, 900), under circumstances, of which you submit the following statement:

“A, formerly a captain in the Twenty-sixth Regiment of Volunteer Infantry, authorized to be raised by the act of March 2, 1899, was appointed a quartermaster in the Army, with the rank of captain, on June 14, 1901, to rank as such from February 2, 1901. He accepted the appointment so conferred on June 27, 1901; he resigned on July 8 following, and his resignation was duly accepted. On July 9, 1901, a captain of the cavalry in the line of the Army was

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detailed in the Quartermaster's Department to fill the vacancy thus created, such detail being made under authority conferred by section 26 of the act of February 2, 1901. The captain of cavalry so detailed is now performing the duties of the office."

You further state: “ The question is, Does the vacancy created by the resignation of Captain A create an original vacancy which can be filled by the appointment of a person similarly qualified; or should the vacancy be filled by detail under the provisions of section 26 of the act of February 2, 1901 ?”

The situation presented was caused by section 16 of the act of February 2, 1901 (31 Stat., 748, 751), which provides, inter alia, as follows:

“The Quartermaster's Department shall consist of * *

sixty quartermasters with the rank of captain, mounted; *

Provided, * * That to fill original vacancies in the grade of captain created by this act in the Quartermaster's Department the President is authorized to appoint officers of volunteers commissioned in the Quartermaster's Department since April twenty-first, eighteen hundred and ninety-eight."

(The act of March 2, 1901, omits the words “in the Quartermaster's Department” where last above appearing.)

Section 26 of the same act provides, inter alia“That

when any vacancy, except that of the chief of the department or corps, shall occur, which can not be filled by promotion as provided in this section, it shall be filled by detail from the line of the Army, and no more permanent appointments shall be made in those departments or corps after the original vacancies created by this act shall have been filled. Such detail shall be made from the grade in which the vacancies exist, under such system of examination as the President may from time to time pre scribe. All officers so detailed shall serve for a period of four years,” etc.

This case, as I view it, does not present the ordinary distinction between a “temporary” and “permanent " appointment, nor involve the general power of the President (which is well established: 19 Opin., 261, and authorities cited) to

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appoint to an office ultimately requiring confirmation, when a vacancy “happens” or happens to exist during a recess of the Senate.

“Whether the President appoints in the session or in the recess, he can not and does not fill the office without the concurrence of the Senate. He may fill the vacancy in the recess, but only by an appointment which lasts until the end of the next session.” (12 Opin., 32, 41.)

The uniform opinion on this point simply regards the fundamental power of the President when untrammeled by any specific statutory restriction, express or implied. Here there is a restriction in the law, which I consider below. The question is not only whether the appointment was temporary or permanent respecting the President's underlying power and the Senate's right to interpose, but also whether the act does not use the word “permanent” in contrast merely with the four years' detail, and does not thereby look to the President's intention in making the appointment and to the general purpose of army reorganization rather than to the Senate's concurrence. To borrow Mr. Stanbery's statement in 12 Opin., supra, the President filled the vacancy and presumably meant to fill the office permanently. Was confirmation by the Senate essential to the complete attainment of this result? Thus the question at the threshold, before we reach the special restriction in the law, regards generally the nature and extent of the President's power of appointment in this case.

It may be argued with force that in this particular class of appointments, as well as in others under the act of February 2, 1901, the President's act is final and complete and confirmation by the Senate is not required. It will be observed, for example, that by sections 12, 26, and 33 certain appointments are directed to be made and vacancies to be filled by and with the advice and consent of the Senate, whereas certain other appointments, including some consequent upon promotions and those required by the original vacancies which we are considering and other such vacancies, do not expressly call for confirmation by the Senate. The language is that “the President is authorized to appoint, etc.," without reference to the Senate (sec. 16); and that “ vacancies

remaining after such promotions may be filled by appointment of persons who have served, etc.” (sec. 24). This difference and contrast is obvious throughout the act (secs. 15, 17, 21, and par. 2, sec. 33). The act contemplates appointments by and with the advice and consent of the Senate, appointments in which the power is not so restricted, promotions, the "selection" of the Chief of Engineers "as now provided by law," and other methods of designation, as by department detail and by appointment by officers subordinate to the President. Not only is the President authorized to appoint" without restriction, in filling these particular original vacancies, but where Congress intends to impose some restriction short of confirmation by the Senate the purpose is clear. In the thirty-sixth section the President is authorized to make provisional appointments of natives of the Philippine Islands to the grades of second and first lieutenants in the native squadrons and battalions.

The intention of Congress not to require confirmation for appointments of the class in question thus seems to be evident. But is this intent in conformity with the Constitution?

Clause 2, section 2, Article II, provides that the President ** shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law 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.”

Is this office an inferior office? Or, rather, is a captain in the Quartermaster's Department such an inferior officer?"

I do not think that this term, while importing a difference in relative rank, necessarily conveys the idea of unimportant or petty officers. It means subordinate officers in a general way, and indicates those who are different from as well as

19395-VOL 23—02—37

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