A-15101, AUGUST 21, 1926, 6 COMP. GEN. 147

A-15101: Aug 21, 1926

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OCCURRED DURING A RECESS OF THE SENATE AND WAS FILLED BY A RECESS APPOINTMENT TERMINATING WITH THE ADJOURNMENT OF THE NEXT SESSION OF THE SENATE DURING WHICH THE NOMINATION OF THE PRESIDENT WAS NOT ACTED UPON. COMPENSATION UNDER A SECOND RECESS APPOINTMENT OF THE SAME OR A DIFFERENT PERSON TO THE SAME OFFICE MADE SUBSEQUENT TO THE ADJOURNMENT OF THE SENATE IS PROHIBITED BY SECTION 1761. FOR THE REASON THAT A "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION. 1926: THERE HAVE BEEN RECEIVED YOUR LETTERS OF JULY 15. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS DRAWN IN FAVOR OF SHERMAN J. H. BALDWIN WAS GIVEN A RECESS APPOINTMENT TO THE OFFICE VACATED BY COMMISSIONER BURGESS.

A-15101, AUGUST 21, 1926, 6 COMP. GEN. 147

COMPENSATION - RECESS APPOINTMENTS - TARIFF COMMISSION WHERE A VACANCY IN THE OFFICE OF A MEMBER OF THE UNITED STATES TARIFF COMMISSION, REQUIRING APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OCCURRED DURING A RECESS OF THE SENATE AND WAS FILLED BY A RECESS APPOINTMENT TERMINATING WITH THE ADJOURNMENT OF THE NEXT SESSION OF THE SENATE DURING WHICH THE NOMINATION OF THE PRESIDENT WAS NOT ACTED UPON, COMPENSATION UNDER A SECOND RECESS APPOINTMENT OF THE SAME OR A DIFFERENT PERSON TO THE SAME OFFICE MADE SUBSEQUENT TO THE ADJOURNMENT OF THE SENATE IS PROHIBITED BY SECTION 1761, REVISED STATUTES, FOR THE REASON THAT A "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION," THE RECESS APPOINTMENT NOT BEING CONSIDERED AS CAUSING THE VACANCY TO CEASE TO EXIST.

COMPTROLLER GENERAL MCCARL TO L. W. MOORE, DISBURSING OFFICER, UNITED STATES TARIFF COMMISSION, AUGUST 21, 1926:

THERE HAVE BEEN RECEIVED YOUR LETTERS OF JULY 15, 1926, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS DRAWN IN FAVOR OF SHERMAN J. LOWELL FOR SALARY FOR SERVICES RENDERED AS A MEMBER OF THE UNITED STATES TARIFF COMMISSION, FROM JULY 6 TO 15, 1926, AND OF E. B. BROSSARD COVERING SALARY AS A MEMBER OF SAID COMMISSION FROM JULY 3, TO 15, 1926.

IT APPEARS THAT A FORMER COMMISSIONER, WILLIAM BURGESS, RESIGNED JUNE 1, 1925, DURING A RECESS OF THE SENATE; THAT ON JUNE 6, 1925, A. H. BALDWIN WAS GIVEN A RECESS APPOINTMENT TO THE OFFICE VACATED BY COMMISSIONER BURGESS; THAT THE SAID RECESS APPOINTEE QUALIFIED JUNE 22, 1925, SERVED IN AND WAS PAID THE SALARY OF THE OFFICE UNTIL JULY 3, 1926, WHEN THE RECESS APPOINTMENT WAS TERMINATED BY THE ADJOURNMENT OF THE SENATE; THAT MR. LOWELL'S NOMINATION TO THE OFFICE OCCUPIED BY MR. BALDWIN WAS SENT TO THE SENATE JUNE 23, 1926; THAT NO ACTION ON THE NOMINATION WAS TAKEN BY THE SENATE PRIOR TO ITS ADJOURNMENT ON JULY 3, 1926; AND THAT MR. LOWELL WAS GIVEN A RECESS APPOINTMENT AND QUALIFIED FOR THE OFFICE ON JULY 6, 1926.

IN THE CASE OF MR. BROSSARD THE RECORDS SHOW THAT HE WAS APPOINTED JULY 9, 1925, TO THE OFFICE VACATED BY THE RESIGNATION OF WILLIAM S. CULBERTSON ON MAY 17, 1925, WHICH WAS ALSO DURING A RECESS OF THE SENATE; THAT MR. BROSSARD QUALIFIED ON JULY 22, 1925, AND WAS PAID THE SALARY OF THE OFFICE UNTIL JUNE 30, 1926; THAT HIS NOMINATION WAS SENT TO THE SENATE JUNE 23, 1926; THAT NO ACTION WAS TAKEN THEREON PRIOR TO ADJOURNMENT ON JULY 3, 1926; AND THAT HE WAS GIVEN ANOTHER RECESS APPOINTMENT ON JULY 3, 1926, AND QUALIFIED THEREUNDER THE SAME DAY.

SECTION 1761, REVISED STATUTES, PROVIDES:

* * * NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE.

SECTION 700 OF THE ACT OF SEPTEMBER 8, 1916, 39 STAT. 795, CREATING THE UNITED STATES TARIFF COMMISSION, PROVIDES THAT THE MEMBERS THEREOF SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

IN BOTH OF THE CASES PRESENTED THE VACANCY IN THE OFFICE ORIGINALLY OCCURRED AND EXISTED DURING A RECESS OF THE SENATE. FOR THIS REASON, PAYMENT OF COMPENSATION FOR THE DURATION OF THE FIRST RECESS APPOINTMENT WHICH TERMINATED JULY 3, 1926, BY ADJOURNMENT OF THE SENATE, WAS NOT PROHIBITED BY SECTION 1761, REVISED STATUTES. BUT THE QUESTION IS NOW PRESENTED WHETHER WITHIN THE MEANING OF SAID SECTION A "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION" FROM DECEMBER 7, 1925, TO JULY 3, 1926, DURING THE ENTIRE PERIOD OF WHICH THE OFFICES WERE HELD UNDER RECESS APPOINTMENTS. IF SO, COMPENSATION UNDER THE SECOND RECESS APPOINTMENTS MADE JULY 6 AND JULY 3, 1926, RESPECTIVELY, WOULD BE PROHIBITED BY THE TERMS OF THE ABOVE QUOTED SECTION OF THE REVISED STATUTES. IF IT MAY BE HELD THAT NO "VACANCY EXISTED" WHILE THE OFFICES WERE HELD UNDER LAWFUL RECESS APPOINTMENTS, COMPENSATION UNDER THE SECOND RECESS APPOINTMENTS WOULD NOT BE PROHIBITED BY SAID SECTION.

IT HAS BEEN ADVANCED THAT BECAUSE THE ORIGINAL VACANCY OCCURRED DURING A RECESS OF THE SENATE THAT THE STATUTORY PROHIBITION WOULD NOT APPLY TO PREVENT PAYMENT OF COMPENSATION UNDER A SERIES OF SUCCESSIVE RECESS APPOINTMENTS. SECTION 1761, REVISED STATUTES, CONTAINS TWO PRIMARY PHRASES FOR CONSIDERATION, VIZ,"APPOINTED DURING THE RECESS OF THE SENATE" AND "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION.' THE FORMER IS DESCRIPTIVE OF ALL RECESS APPOINTMENTS MADE UNDER AUTHORITY OF THE CONSTITUTION, AND IT IS NOT A QUESTION AS TO WHEN THE VACANCY ORIGINALLY OCCURRED TO WHICH THE RECESS APPOINTMENT WAS MADE, BUT WHETHER A "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION.' THUS THE EMPHASIS OF THE STATUTE IS FOUND IN THE SECOND OF THE TWO PHRASES MENTIONED.

RECESS APPOINTMENTS ARE AUTHORIZED UNDER ARTICLE II, SECTION 2, SUBSECTION 3, OF THE CONSTITUTION, WHICH READS:

THE PRESIDENT SHALL HAVE POWER TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE, BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.

WHILE A RECESS APPOINTMENT VESTS IN THE APPOINTEE ALL THE POWERS OF THE OFFICE, IT IS OBVIOUS THAT THE APPOINTMENT IS OF A TEMPORARY CHARACTER TERMINABLE UPON A DEFINITE HAPPENING, AND IS NOT MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE CONSTITUTION EFFECTUALLY PRESERVES THE CONTROL OF THE SENATE OVER APPOINTMENTS BY LIMITING THE TERM FOR WHICH THE PRESIDENT IS AUTHORIZED TO MAKE RECESS APPOINTMENTS. THE EVIDENT PURPOSE OF THE PROVISION IN SECTION 1761, REVISED STATUTES, PROHIBITING PAYMENT OF COMPENSATION TO A RECESS APPOINTEE PRIOR TO CONFIRMATION, WHEN THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION, WAS TO PREVENT THE EXECUTIVE, BY A SERIES OF RECESS APPOINTMENTS, FROM AVOIDING THE REQUIREMENT OF LAW THAT THE APPOINTMENT BE BY, AND WITH THE ADVICE AND CONSENT OF THE SENATE. 16 OP.ATTY.GEN. 522. IT IS NOTED THAT THE PROHIBITION AGAINST PAYMENT IS NOT LIMITED TO CASES IN WHICH THE VACANCY OCCURS WHILE THE SENATE IS IN SESSION, BUT IS APPLICABLE TO ALL CASES IN WHICH "THE VACANCY EXISTED" WHILE THE SENATE WAS IN SESSION. A RECESS APPOINTMENT, BEING MERELY A TEMPORARY EXPEDIENT PROVIDED FOR UNDER THE LAW, DOES NOT FILL THE VACANCY. 17 COMP. DEC. 178; 21 ID. 722. THEREFORE, IT MUST BE HELD IN EACH OF THE CASES HERE UNDER CONSIDERATION THAT THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION FROM DECEMBER 7, 1925, TO JULY 3, 1926, WITHIN THE PURVIEW OF THE PROHIBITION IN SECTION 1761, REVISED STATUTES.

IN A MEMORANDUM FILED IN CONNECTION WITH THE CASE OF MR. BROSSARD, RELIANCE IS PLACED, FOR AUTHORIZATION TO MAKE PAYMENTS OF COMPENSATION UNDER THE SECOND RECESS APPOINTMENT, ON DECISION REPORTED AT 5 COMP. DEC. 785. THAT DECISION WAS IN EFFECT OVERRULED BY DECISION REPORTED AT 14 COMP. DEC. 901.

SINCE, AS HEREINBEFORE SHOWN, A "VACANCY EXISTED WHILE THE SENATE WAS IN SESSION," WITH RESPECT TO THE OFFICES TO WHICH SHERMAN J. LOWELL AND E. B. BROSSARD WERE GIVEN RECESS APPOINTMENTS EFFECTIVE JULY 6 AND JULY 3, 1926, RESPECTIVELY, IT MUST BE HELD THAT PAYMENT OF COMPENSATION TO THEM UNDER SUCH RECESS APPOINTMENTS IS NOT AUTHORIZED.