A-18810, JULY 6, 1927, 7 COMP. GEN. 10

A-18810: Jul 6, 1927

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HIGH COMMISSIONER" TO REPRESENT THE PRESIDENT OF THE UNITED STATES IN THAT COUNTRY WAS NOT EQUIVALENT TO THE FILLING OF THE VACANCY. THE VACANCY IN THAT OFFICE EXISTED WHILE THE SENATE WAS IN SESSION. BECAUSE THE UNITED STATES AND GERMANY WERE IN A STATE OF WAR AND TURKEY HAD ALLIED HERSELF WITH GERMANY IN THE WAR. IT WAS NECESSARY. IT WAS. LEWIS HECK WAS. WHO WAS AT THAT TIME IN CHARGE OF THE UNITED STATES NAVAL FORCES IN TURKISH WATERS "TO ACT AS A HIGH COMMISSIONER TO REPRESENT THE PRESIDENT OF THE UNITED STATES IN TURKEY.'. IS NOW PROCEEDING TO THE UNITED STATES WITH THE INTENTION OF RESIGNING ON ARRIVAL HERE. IT IS. THE SALARY PROVIDED BY CONGRESS IS AVAILABLE FOR PAYMENT ONLY TO A PERSON HOLDING A COMMISSION AS AMBASSADOR AND ADMIRAL BRISTOL.

A-18810, JULY 6, 1927, 7 COMP. GEN. 10

APPOINTMENTS - RECESS - FOREIGN SERVICE WHERE ON ACCOUNT OF WORLD WAR HOSTILITIES THE POST OF AMBASSADOR TO TURKEY BECAME VACANT IN 1917 BY THE RESIGNATION OF THE THEN INCUMBENT, THE SUBSEQUENT APPOINTMENT OF AN OFFICER OF THE NAVY AS ,HIGH COMMISSIONER" TO REPRESENT THE PRESIDENT OF THE UNITED STATES IN THAT COUNTRY WAS NOT EQUIVALENT TO THE FILLING OF THE VACANCY. IF, THEREFORE, THE OFFICE OF AMBASSADOR TO TURKEY HAS CONTINUED TO EXIST AFTER THE RESIGNATION OF THE FORMER AMBASSADOR IN 1917, THE VACANCY IN THAT OFFICE EXISTED WHILE THE SENATE WAS IN SESSION, AND WHILE THE PRESIDENT WOULD BE AUTHORIZED TO MAKE AN APPOINTMENT THERETO FOR THE TERM EXPIRING AT THE CLOSE OF THE NEXT SESSION OF THE SENATE, BY REASON OF THE PROVISIONS OF SECTION 1761 OF THE REVISED STATUTES, THE APPOINTEE WOULD NOT BE ENTITLED TO THE PAY ATTACHING TO THE OFFICE UNLESS AND UNTIL HIS APPOINTMENT HAD BEEN CONFIRMED BY THE SENATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 6, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 7, 1927, AS FOLLOWS:

THE GOVERNMENT OF TURKEY BROKE RELATIONS WITH THE UNITED STATES ON APRIL 20, 1917, BECAUSE THE UNITED STATES AND GERMANY WERE IN A STATE OF WAR AND TURKEY HAD ALLIED HERSELF WITH GERMANY IN THE WAR. IT WAS NECESSARY, THEREFORE, THAT THE AMERICAN AMBASSADOR, MR. ELKUS, BE WITHDRAWN FROM CONSTANTINOPLE AND HE RETURNED TO THE UNITED STATES WHERE HE SUBSEQUENTLY RESIGNED. IT WAS, OF COURSE, IMPOSSIBLE TO APPOINT A SUCCESSOR AS AMBASSADOR TO TURKEY.

IN MAY, 1919, AFTER THE TERMINATION OF THE WAR, THE PRESIDENT DEEMED IT ADVISABLE AGAIN TO SEND SOMEONE TO REPRESENT HIM IN TURKEY BUT CONSIDERED IT INADVISABLE TO GIVE SUCH OFFICER AT THAT TIME THE TITLE OF AMBASSADOR. MR. LEWIS HECK WAS, THEREFORE, SENT TO TURKEY AS A REPRESENTATIVE OF THE PRESIDENT WITH THE TITLE OF COMMISSIONER. SUBSEQUENTLY, THE PRESIDENT APPOINTED REAR ADMIRAL MARK L. BRISTOL, WHO WAS AT THAT TIME IN CHARGE OF THE UNITED STATES NAVAL FORCES IN TURKISH WATERS "TO ACT AS A HIGH COMMISSIONER TO REPRESENT THE PRESIDENT OF THE UNITED STATES IN TURKEY.' ADMIRAL BRISTOL HAS ACTED IN THIS CAPACITY UNDER THIS APPOINTMENT CONTINUALLY SINCE AUGUST 12, 1919, TO THE PRESENT TIME, BUT IS NOW PROCEEDING TO THE UNITED STATES WITH THE INTENTION OF RESIGNING ON ARRIVAL HERE.

IT IS, THEREFORE, NECESSARY THAT HIS SUCCESSOR BE NOW APPOINTED AND DESIRABLE THAT HE BE GIVEN THE TITLE FORMERLY USED OF AMBASSADOR EXTRAORDINARY AND MINISTER PLENIPOTENTIARY.

THE SALARY PROVIDED BY CONGRESS IS AVAILABLE FOR PAYMENT ONLY TO A PERSON HOLDING A COMMISSION AS AMBASSADOR AND ADMIRAL BRISTOL, THEREFORE, HAS RECEIVED NO COMPENSATION FROM THAT APPROPRIATION DURING THE TIME THAT HE HAS BEEN THE HEAD OF THE EMBASSY TO TURKEY.

SECTION 1761 OF THE REVISED STATUTES PROVIDES THAT---

"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.'

IN VIEW OF THIS PROVISION OF THE STATUTES AND THE FACT THAT THE APPOINTEE SINCE 1919 HAS BEEN DESIGNATED AS A HIGH COMMISSIONER RATHER THAN AMBASSADOR, THE QUESTION ARISES AS TO WHETHER THIS WOULD PRECLUDE PAYMENT OF SALARY TO AN AMBASSADOR, APPOINTED UPON ADMIRAL BRISTOL'S RESIGNATION TAKING EFFECT, UNTIL SUCH TIME AS HE MIGHT BE CONFIRMED BY THE SENATE, AND I WOULD BE GLAD TO RECEIVE AN EXPRESSION OF YOUR OPINION ON THIS POINT.

I SHOULD ADD THAT IN THIS CASE THE DEPARTMENT HAS CONSIDERED THAT THE HIGH COMMISSIONER WAS, IN FACT, AMBASSADOR, HE HAVING PERFORMED ALL THE DUTIES OF AMBASSADOR AND HAVING BEEN ACCORDED THE STATUS OF AMBASSADOR BY TURKEY, THE ONLY REASON FOR A DIFFERENT TITLE BEING EXPEDIENCY, IN VIEW OF THE CONDITIONS EXISTING BETWEEN THE TWO COUNTRIES. THE DEPARTMENT HAS, THEREFORE, NOT CONSIDERED THAT THE POSITION OF AMBASSADOR WAS VACANT IN THE SENSE THAT WOULD PREVENT THE APPOINTMENT OF AN AMBASSADOR AS SOON AS THE ADVISABILITY THEREFOR AROSE, AND PREVENT THE CONSEQUENT PAYMENT OF HIS SALARY FROM THE APPROPRIATION AVAILABLE THEREFOR.

CLAUSES 2 AND 3, SECTION 2, ARTICLE II, OF THE CONSTITUTION, PROVIDE THAT THE PRESIDENT SHALL NOMINATE AND, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SHALL APPOINT AMBASSADORS, OTHER PUBLIC MINISTERS, AND CONSULS, AND SHALL HAVE POWER TO FILL UP VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.

UNDER THIS SECTION THERE IS NO QUESTION BUT THAT THE PRESIDENT HAS AUTHORITY TO MAKE A RECESS APPOINTMENT TO FILL ANY VACANCY IN THE POSITION OF AMBASSADOR OR OTHER DIPLOMATIC POSITIONS. HOWEVER, IN VIEW OF THE PROVISIONS OF SECTION 1761, REVISED STATUTES, QUOTED IN YOUR LETTER, PAYMENT OF SALARY TO THE PERSONS RECEIVING SUCH APPOINTMENTS, UNLESS AND UNTIL THEY SHALL HAVE BEEN CONFIRMED BY THE SENATE, IS DEPENDENT UPON WHETHER THE VACANCY TO WHICH APPOINTED EXISTED WHILE THE SENATE WAS IN SESSION.

INFORMATION HAS BEEN RECEIVED INFORMALLY THAT MR. HECK, WHO WAS DESIGNATED AS "COMMISSIONER," WAS, PRIOR TO THE SEVERANCE OF DIPLOMATIC RELATIONS BETWEEN THE UNITED STATES AND TURKEY, SECRETARY OF THE AMERICAN EMBASSY; THAT HE REMAINED IN TURKEY AFTER THE RETURN OF AMBASSADOR ELKUS TO THIS COUNTRY AND AIDED THE SWEDISH EMBASSY, WHICH HAD TAKEN OVER AMERICAN INTERESTS IN TURKEY, IN LOOKING AFTER SAID INTERESTS UNTIL HE WAS DESIGNATED AS COMMISSIONER, AND CONTINUED TO RECEIVE HIS SALARY AS SECRETARY UNTIL THE DESIGNATION OF REAR ADMIRAL BRISTOL AS "HIGH COMMISSIONER.' ADMIRAL BRISTOL RECEIVED NO COMPENSATION FOR SERVICE AS "HIGH COMMISSIONER" OTHER THAN THE PAY AND ALLOWANCES OF HIS RANK AS A NAVAL OFFICER, AND THE QUESTION AS TO THE LEGALITY OF HIS DESIGNATION AS HIGH COMMISSIONER IS NOT BEFORE THIS OFFICE, AND NO OPINION IS EXPRESSED THEREON. SAID DESIGNATION IS FOR CONSIDERATION AT THIS TIME ONLY FOR THE PURPOSE OF DETERMINING WHETHER IT FILLED THE OFFICE VACATED BY THE RESIGNATION OF FORMER AMBASSADOR ELKUS.

IT DOES NOT APPEAR THAT THE DESIGNATION OR APPOINTMENT OF ADMIRAL BRISTOL AS COMMISSIONER WAS SENT TO OR CONFIRMED BY THE SENATE, ALTHOUGH THAT BODY WAS IN SESSION AT THE TIME THE DESIGNATION WAS MADE; AND IN VIEW OF THE CONSTITUTIONAL LIMITATION UPON THE AUTHORITY OF THE PRESIDENT IN MAKING APPOINTMENTS OF AMBASSADORS AND OTHER PUBLIC MINISTERS, WHICH APPOINTMENTS MAY BE MADE ONLY BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, EXCEPT WHEN VACANCIES HAPPEN DURING THE RECESS OF THE SENATE, IN WHICH EVENT COMMISSIONS MAY ISSUE TO EXPIRE AT THE CLOSE OF THE NEXT SESSION OF THE SENATE, IT MUST BE CONCLUDED THAT THE APPOINTMENT OR DESIGNATION OF REAR ADMIRAL BRISTOL AS HIGH COMMISSIONER DID NOT FILL THE VACANCY CREATED BY THE RESIGNATION OF AMBASSADOR ELKUS. IN THIS CONNECTION SEE ALSO SECTION 1440, REVISED STATUTES. WHILE IT WAS EARLY HELD BY THE ATTORNEY GENERAL THAT THE POWER TO SELECT COUNTRIES TO WHICH DIPLOMATIC REPRESENTATIVES OF THE UNITED STATES WERE TO BE SENT AND THE RANK OF SUCH REPRESENTATIVES WAS VESTED IN THE PRESIDENT BY THE CONSTITUTION, IT WAS ALSO HELD THAT SUCH APPOINTMENTS WERE ALWAYS SUBJECT TO THE CONSTITUTIONAL CONDITIONS IN RELATION TO THE SENATE. SEE 7 OP.ATTY.GEN. 186, ET SEQ.

THE VACANCY OCCURRING IN 1917 IN THE POST OF AMBASSADOR TO TURKEY NOT HAVING BEEN FILLED BY THE DESIGNATION OF ADMIRAL BRISTOL AS HIGH COMMISSIONER, NOR OTHERWISE, IT MUST BE HELD THAT IF SAID OFFICE HAS CONTINUED TO EXIST SINCE THE RESIGNATION OF FORMER AMBASSADOR ELKUS IN 1917 (A POINT ON WHICH THIS OFFICE EXPRESSES NO OPINION AT THIS TIME), THE VACANCY THEREIN EXISTED WHILE THE SENATE WAS IN SESSION, AND, THEREFORE, THAT WHILE THE PRESIDENT WOULD BE AUTHORIZED TO MAKE AN APPOINTMENT THERETO FOR THE TERM EXPIRING AT THE CLOSE OF THE NEXT SESSION OF THE SENATE, THE APPOINTEE WOULD NOT BE ENTITLED TO THE PAY ATTACHING TO SUCH OFFICE UNLESS AND UNTIL HIS APPOINTMENT SHALL HAVE BEEN CONFIRMED BY THE SENATE.