B-77963, JULY 16, 1948, 28 COMP. GEN. 30

B-77963: Jul 16, 1948

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IS TO BE REGARDED AS A "TERMINATION OF THE SESSION. WHOSE NOMINATIONS WERE PENDING IN THE SENATE WHEN IT ADJOURNED. ARE ENTITLED TO THE SALARY ATTACHED TO SUCH OFFICES UNDER RECESS APPOINTMENTS GIVEN SUBSEQUENT TO THE ADJOURNMENT DATE. WHOSE NOMINATION AS FEDERAL JUDGE WAS PENDING IN THE SENATE WHEN IT ADJOURNED ON JUNE 20. IS NOT ENTITLED. 1948: I HAVE YOUR LETTER OF JUNE 30. AS FOLLOWS: A QUESTION UPON WHICH I RESPECTFULLY REQUEST YOUR ADVICE CONCERNS THE RIGHT TO PAYMENT OF SALARY OF FOUR JUDGES OF UNITED STATES COURTS WHO HAVE RECEIVED FROM THE PRESIDENT RECESS APPOINTMENTS SINCE THERECENT ADJOURNMENT OF THE PRESENT SESSION OF THE CONGRESS. THEY ARE AS FOLLOWS: HONORABLE PAUL P. ALL OF THE APPOINTMENTS ABOVE MENTIONED WERE DATED JUNE 22.

B-77963, JULY 16, 1948, 28 COMP. GEN. 30

APPOINTMENTS - RECESS APPOINTMENTS THE ADJOURNMENT OF THE SENATE ON JUNE 20, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION 218, UNTIL DECEMBER 31, 1948, IS TO BE REGARDED AS A "TERMINATION OF THE SESSION," WITHIN THE MEANING OF THE EXCEPTION EXPRESSED IN CLAUSE (B) OF SECTION 1761, REVISED STATUTES, AS AMENDED, SO THAT PERSONS WHO HAD BEEN PREVIOUSLY NOMINATED TO THE OFFICE OF FEDERAL JUDGE DURING THE SESSION ADJOURNED ON JUNE 20, 1948, AND WHOSE NOMINATIONS WERE PENDING IN THE SENATE WHEN IT ADJOURNED, ARE ENTITLED TO THE SALARY ATTACHED TO SUCH OFFICES UNDER RECESS APPOINTMENTS GIVEN SUBSEQUENT TO THE ADJOURNMENT DATE. A PERSON WHO RECEIVED A RECESS APPOINTMENT FROM THE PRESIDENT AS A FEDERAL JUDGE DURING A RECESS OF THE SENATE PREVIOUS TO ITS ADJOURNMENT ON JUNE 20, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION 218, AND WHOSE NOMINATION AS FEDERAL JUDGE WAS PENDING IN THE SENATE WHEN IT ADJOURNED ON JUNE 20, 1948, IS NOT ENTITLED, IN VIEW OF SECTION 1761, REVISED STATUTES, AS AMENDED, PRECLUDING THE PAYMENT OF SALARY IN THE CASE OF THE NOMINATION OF A PERSON APPOINTED DURING A PRECEDING RECESS OF THE SENATE, TO THE SALARY ATTACHED TO HIS OFFICE UNDER ANOTHER INTERIM APPOINTMENT MADE SUBSEQUENT TO THE ADJOURNMENT DATE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JULY 16, 1948:

I HAVE YOUR LETTER OF JUNE 30, 1948, AS FOLLOWS:

A QUESTION UPON WHICH I RESPECTFULLY REQUEST YOUR ADVICE CONCERNS THE RIGHT TO PAYMENT OF SALARY OF FOUR JUDGES OF UNITED STATES COURTS WHO HAVE RECEIVED FROM THE PRESIDENT RECESS APPOINTMENTS SINCE THERECENT ADJOURNMENT OF THE PRESENT SESSION OF THE CONGRESS. THEY ARE AS FOLLOWS:

HONORABLE PAUL P. RAO, APPOINTED AS JUDGE OF THE UNITED STATES CUSTOMS COURT.

HONORABLE EDWARD ALLEN TAMM, APPOINTED AS UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA. HONORABLE SAMUEL HAMILTON KAUFMAN, APPOINTED AS UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK.

HONORABLE ROY W. HARPER, APPOINTED AS UNITED STATES DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI.

ALL OF THE APPOINTMENTS ABOVE MENTIONED WERE DATED JUNE 22, 1948. EACH OF THE PERSONS APPOINTED HAD PREVIOUSLY BEEN NOMINATED DURING THE PRESENT CONGRESS FOR THE RESPECTIVE POSITIONS FOR WHICH THEY HAVE NOW BEEN GIVEN INTERIM APPOINTMENTS, AND THEIR NOMINATIONS WERE PENDING IN THE SENATE WHEN THAT BODY RECESSED ON JUNE 20, 1948, BUT IT HAD NOT ACTED ON THEM. FURTHER FACTS IN THE INDIVIDUAL CASES ARE AS FOLLOWS:

THE NOMINATION OF MR. RAO AS JUDGE OF THE UNITED STATES CUSTOMS COURT WAS SENT TO THE SENATE ON MAY 3, 1948.

THE NOMINATION OF MR. TAMM AS UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA WAS SENT TO THE SENATE ON FEBRUARY 3, 1948. JUDGE TAMM TOOK THE OATH OF OFFICE AND ENTERED ON DUTY JUNE 28,1948.

THE NOMINATION OF MR. KAUFMAN AS UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK WAS SENT TO THE SENATE ON MAY 17, 1948.

NONE OF THE THREE PERSONS LAST MENTIONED HAD FUNCTIONED AS A JUDGE PRIOR TO RECEIVING THE PRESENT INTERIM APPOINTMENTS. I AM INFORMED THAT JUDGE RAO INTENDS TO QUALIFY AND ENTER ON DUTY JULY 2, 1948, AND JUDGE KAUFMAN IS DOING SO TODAY.

THE FOURTH PERSON RECEIVING ONE OF THE RECENT INTERIM APPOINTMENTS, HONORABLE ROY W. HARPER, HAS FUNCTIONED UNDER PRIOR INTERIM APPOINTMENTS. HIS NOMINATION WAS SENT TO THE SENATE AT THE FIRST SESSION OF THE PRESENT CONGRESS ON JULY 8, 1947. THE SENATE HAD TAKEN NO ACTION ON THE NOMINATION WHEN THE CONGRESS RECESSED PURSUANT TO SENATE CONCURRENT RESOLUTION 33 AS AMENDED ON JULY 27, 1947. ON AUGUST 11, 1947 JUDGE HARPER RECEIVED AN INTERIM APPOINTMENT, AND ON THE SAME DAY TOOK THE OATH OF OFFICE AND ENTERED ON DUTY. AS STATED ABOVE, THE SENATE TOOK NO ACTION ON HIS NOMINATION PRIOR TO RECESSING ON JUNE 20, 1948. JUDGE HARPER ON JUNE 22, 1948 RECEIVED A THIRD INTERIM APPOINTMENT AS STATED ABOVE. HAS BEEN SERVING CONTINUOUSLY AS A DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI SINCE HE QUALIFIED UNDER THE FIRST INTERIM APPOINTMENT ON AUGUST 11, 1947 AND IS CONTINUING TO DO SO. HE HAS BEEN PAID THE STATUTORY COMPENSATION ATTACHING TO THE OFFICE OF DISTRICT JUDGE FROM THE TIME THAT HE FIRST ENTERED ON DUTY AUGUST 11, 1947 CONTINUOUSLY UNTIL THE PRESENT MONTH.

THE PROVISIONS OF LAW BEARING UPON THE PENDING QUESTION ARE AS FOLLOWS:

THE CONSTITUTION PROVIDES IN ARTICLE II, SECTION 2, THE THIRD PARAGRAPH, THAT, DURING THE RECESS OF THE SENATE, BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SSION.'

SECTION 1761 OF THE REVISED STATUTES AS AMENDED (54 STAT. 751, 5 U.S.C. 56) PROHIBITS THE PAYMENT OF SALARY TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE TO FILL A VACANCY IN AN OFFICE IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND CONFIRMATION BY THAT BODY WAS REQUISITE UNTIL CONFIRMATION HAS BEEN HAD. TO THIS THERE ARE THREE EXCEPTIONS, ONE OF WHICH EXPRESSED IN CLAUSE (B) OF THE SECTION, IS AS FOLLOWS:

"IF, AT THE TIME OF THE TERMINATION OF THE SESSION OF THE SENATE, A NOMINATION FOR SUCH OFFICE, OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT.'

THE QUESTION OF THE RIGHT TO PAYMENT OF THE FOUR JUDGES RECEIVING THE INTERIM APPOINTMENTS, WOULD SEEM TO TURN ON THE MEANING OF THE WORDS "TERMINATION OF THE SESSION" IN THE EXCEPTION QUOTED. IF THE RECENT RECESS OF THE SENATE WAS A "TERMINATION OF THE SESSION" IN THE SENSE THERE USED, THEN THE APPOINTMENTS OF JUDGES RAO, TAMM, AND KAUFMAN, WOULD SEEM TO COME WITHIN IT. IF ON THE OTHER HAND THE RECESS WAS NOT A "TERMINATION OF THE SESSION" AS THOSE WORDS ARE USED IN THE STATUTE, THEN THE PROHIBITION WOULD APPLY, AND THEY ARE NOT ENTITLED TO BE PAID.

IN THE CASE OF JUDGE HARPER THERE IS THE ADDITIONAL FACT THT HE RECEIVED A RECESS APPOINTMENT DURING THE PREVIOUS RECESS OF THE SENATE BEGINNING ON DECEMBER 20, 1947. IF THE RECENT RECESS OF THAT BODY ON JUNE 20, 1948 WAS A "TERMINATION OF THE SESSION" THE QUESTION ARISES WHETHER HE IS BARRED FROM PAYMENT BY HIS PREVIOUS RECESS APPOINTMENT. IF ON THE OTHER HAND THE RECENT ADJOURNMENT WAS NOT A "TERMINATION OF THE SESSION" IT MAY BE THAT HE HAS A CONTINUING RIGHT TO RECEIVE COMPENSATION UNDER HIS RECESS APPOINTMENT OF DECEMBER 20, 1947.

THE ADJOURNMENT OF THE SENATE ON JUNE 20, 1948 WAS PURSUANT TO HOUSE CONCURRENT RESOLUTION 218 READING AS FOLLOWS:

"RESOLVED, THAT WHEN THE TWO HOUSES ADJOURN ON SUNDAY JUNE 20, 1948, THEY STAND ADJOURNED UNTIL 12 O-CLOCK MERIDIAN ON FRIDAY, DECEMBER 31, 1948, OR UNTIL 12 O-CLOCK MERIDIAN ON THE THIRD DAY AFTER THE RESPECTIVE MEMBERS ARE NOTIFIED TO REASSEMBLE IN ACCORDANCE WITH SECTION 2 OF THIS RESOLUTION, WHICHEVER EVENT FIRST OCCURS.

"SEC. 2. THE PRESIDENT PRO TEMPORE OF THE SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE ACTING MAJORITY LEADER OF THE SENATE, AND THE MAJORITY LEADER OF THE HOUSE OF REPRESENTATIVES, ALL ACTING JOINTLY, SHALL NOTIFY THE MEMBERS OF THE SENATE AND THE HOUSE RESPECTIVELY, TO REASSEMBLE WHENEVER, IN THEIR OPINION, THE PUBLIC INTEREST SHALL WARRANT IT.'

THE ADJOURNMENT OF THE PREVIOUS SESSION ON JULY 26, 1947 WAS UNDER SENATE CONCURRENT RESOLUTION NO. 33 WHICH WAS SIMILAR EXCEPT THAT THE SPECIFIC DATE TO WHICH ADJOURNMENT WAS TAKEN IN THE ABSENCE OF AN EARLIER REASSEMBLING UNDER SECTION 2 CORRESPONDING WITH SECTION 2 OF THE RESOLUTION ADJOURNING THE PRESENT SESSION, WAS JANUARY 2,1948.

THE PROHIBITION AGAINST PAYMENT OF SALARY TO A PERSON APPOINTED DURING A RECESS OF THE SENATE TO FILL A VACANCY IN AN OFFICE REQUIRING SENATORIAL CONFIRMATION, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION, WHICH IS THE ORIGINAL PART OF THE STATUTE UNDER CONSIDERATION, WAS DERIVED FROM A STATUTE ENACTED FEBRUARY 9, 1963. THE EXCEPTION IN CLAUSE (B) OF CASES IN WHICH AT THE TIME OF THE TERMINATION OF A SESSION OF THE SENATE, A NOMINATION FOR THE OFFICE IN QUESTION OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WAS PENDING CONFIRMATION, WITH TWO OTHER EXCEPTIONS WHICH ARE NOT APPLICABLE IN THE INSTANT CASES, IS A PART OF AN AMENDMENT OF THE EARLIER STATUTE APPROVED JULY 11, 1940 (54 STAT. 751).

THE REPORT OF THE COMMITTEE ON THE JUDICIARY OF THE SENATE RECOMMENDING THE BILL ( SENATE REPORT NO. 1079 OF THE 76TH CONGRESS) SETS OUT A LETTER OF HONORABLE FRANK MURPHY, THEN ATTORNEY GENERAL, TO THE CHAIRMAN OF THE COMMITTEE, HONORABLE HENRY F. ASHURST, DATED JULY 14, 1939, EXPLAINING THE REASONS OF THE ATTORNEY GENERAL FOR FAVORING ITS ENACTMENT. IN THE LETTER THE ATTORNEY GENERAL POINTED OUT THAT FREQUENTLY THERE WERE CIRCUMSTANCES IN REFERENCE TO NOMINATIONS NOT CONFIRMED BY THE SENATE WHICH MADE IT ADVISABLE TO FILL THE VACANCIES TEMPORARILY DURING THE FOLLOWING RECESS. ONE OF THESE REFERRED TO IN THE LETTER WAS "AT TIMES NOMINATIONS ARE LEFT PENDING WITHOUT ACTION BY THE SENATE AT THE TIME THE SESSION TERMINATES.' THIS IS THE SITUATION COVERED BY CLAUSE (B) OF THE STATUTE NOW UNDER CONSIDERATION. THE ATTORNEY GENERAL WENT ON TO SAY THAT" IT SEEMS HIGHLY UNDESIRABLE THAT UNDER SUCH CIRCUMSTANCES A RECESS APPOINTEE SHOULD BE PRECLUDED FROM RECEIVING A SALARY DURING THE RECESS. THE RESULT MAY BE THAT ON OCCASION THE VACANCY MUST REMAIN UNFILLED UNTIL SOMETIME DURING THE FOLLOWING SESSION OF THE CONGRESS.'

THE LETTER STATED THAT THE BILL, WHICH BECAME THE PRESENT LAW, "WOULD MEET THESE OBJECTIONS BY RENDERING THE EXISTING PROHIBITION AS TO PAYMENT OF SALARIES TO RECESS APPOINTEES INAPPLICABLE" IN CERTAIN SPECIFIED CASES, INCLUDING "CASES IN WHICH A NOMINATION REMAINS PENDING WHEN THE CONGRESS ADJOURNS.'

THE RESOLUTION OF ADJOURNMENT OF THE PREVIOUS SESSION OF THE PRESENT CONGRESS ON JULY 26, 1947 WHICH WAS IN ALL ESSENTIALS SIMILAR TO THE RESOLUTION OF ADJOURNMENT OF THE PRESENT SESSION ON JUNE 20, 1948, EXCEPT FOR THE DIFFERENCE IN DATES, RECEIVED EXTENSIVE CONSIDERATION IN MANY QUARTERS IN RESPECT TO THE DATE OF TAKING EFFECT OF THE RECENT AMENDMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE. RULE 86 (B) AS AMENDED PROVIDED THAT THE AMENDMENTS SHOULD TAKE EFFECT "ON THE DAY WHICH IS THREE MONTHS SUBSEQUENT TO THE ADJOURNMENT OF THE FIRST REGULAR SESSION OF THE 80TH CONGRESS.' IT WAS ALMOST UNIFORMLY THE CONCLUSION OF THOSE WHO CONSIDERED THE MATTER PRIOR TO THE FINAL ADJOURNMENT OF THE FIRST REGULAR SESSION ON DECEMBER 19, 1947, THAT THAT DAY RATHER THAN THE PRIOR DAY OF ADJOURNMENT ON JULY 26, 1947, WAS THE DAY FROM WHICH THE THREE MONTHS AFTER THE DAY OF FINAL ADJOURNMENT. THE DEPARTMENT OF JUSTICE ADVISED UNITED STATES ATTORNEYS AND ATTORNEYS IN THE DEPARTMENT TO THIS EFFECT IN A CIRCULAR, ENTITLED SUPPLEMENT NO. 1 TO CIRCULAR NO. 4013 ISSUED JANUARY 28, 1948.

HONORABLE ALEXANDER WILEY, CHAIRMAN OF THE COMMITTEE ON THE JUDICIARY OF THE SENATE, HAD INSERTED IN THE CONGRESSIONAL RECORD OF MONDAY, NOVEMBER 17, 1947, A MEMORANDUM PREPARED BY THE FEDERAL LAW SECTION OF THE LIBRARY OF CONGRESS, THE CONCLUSION OF WHICH WAS THAT THE DAY OF ADJOURNMENT OF THE FIST SESSION OF THE CONGRESS FOR THE PURPOSE OF THE TAKING EFFECT OF THE AMENDMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE, WOULD BE THE DAY OF ITS FINAL ADJOURNMENT WHICH LATER BECAME DECEMBER 19, 1947, RATHER THAN THE DAY OF EARLIER ADJOURNMENT ON JULY 27, 1947, AND THAT MEANTIME THE CONGRESS WAS "SIMPLY IN RECESS.' THE CONGRESS ACQUIESCED IN THE VIEW EXPRESSED IN THE MEMORANDUM THAT WHEN IT RECONVENED IN NOVEMBER 1947 AND UNTIL IT ADJOURNED ON DECEMBER 19 IT WAS MERELY CONTINUING THE SESSION BEGUN IN THE PRECEDING JANUARY. ALSO THE RECENT SESSION BEGINNING IN JANUARY 1948 IS TREATED BY THE CONGRESS AS THE SECOND SESSION OF THE 80TH CONGRESS AND IS SO REFERRED TO IN THE CONGRESSIONAL RECORD. IF THE PRESENT SITUATION IS CONSIDERED ANALOGOUS, AND THE WORDS "TERMINATION OF THE SESSION" IN THE STATUTE ARE TAKEN TO MEAN THE FINAL ADJOURNMENT OF THE PRESENT SESSION OF THE CONGRESS, THEN THE SESSION HAS NOT BEEN TERMINATED WITHIN THE MEANING OF CLAUSE (B), AND THE EXCEPTION TO THE PROHIBITION OF PAYMENTS OF SALARY TO INTERIM APPOINTEES DOES NOT APPLY.

THERE IS A COUNTER CONSIDERATION, NAMELY THAT IT SEEMS TO HAVE BEEN THE PURPOSE OF CLAUSE (B) TO PERMIT THE PAYMENT OF PERSONS APPOINTED TO FILL OFFICES REQUIRING SENATORIAL CONFIRMATION DURING PERIODS WHILE THE SENATE WAS NOT IN SESSION, IF NOMINATIONS HAD BEEN SUBMITTED DURING THE SESSION OF THE SENATE AND NOT ACTED UPON. ALTHOUGH THE STATUTE EXPRESSLY BARS THE PAYMENT OF SALARY UNDER AN INTERIM APPOINTMENT TO A PERSON WHOSE NOMINATION WAS REJECTED BY THE SENATE WILL NOT BE IN SESSION AND IN A POSITION TO ACT UPON THE NOMINATIONS TO THE FOUR JUDICIAL POSITIONS HERE INVOLVED UNTIL DECEMBER 31, 1948, UNLESS IN THE MANNER PROVIDED A CALL IS ISSUED FOR AN EARLIER REASSEMBLING OR THE PRESIDENT RECALLS THE CONGRESS. THUS THERE MAY BE A PERIOD OF SIX MONTHS BEFORE THE SENATE CAN AGAIN ACT UPON NOMINATIONS. THERE IS REASON IN THE VIEW THAT THIS IS ONE OF THE CONTINGENCIES WHICH WAS CONTEMPLATED BY THE STATUTE PROVIDING FOR THE PAYMENT OF INTERIM APPOINTEES, AND THAT THE PURPOSE OF THE LEGISLATION WOULD DO TO A DEGREE BE DEFEATED BY A CONSTRUCTION OF THE WORDS "TERMINATION OF THE SESSION," WHICH FOR THIS PURPOSE WOULD LIMIT THEM TO THE FINAL ADJOURNMENT.

AS FAR AS I HAVE BEEN ABLE TO ASCERTAIN, THERE ARE NO DIRECT PRECEDENTS FOR THE DETERMINATION OF THE QUESTION OF THE RIGHT TO PAYMENT OF THE FOUR JUDGES ABOVE NAMED UNDER THEIR INTERIM APPOINTMENTS OF JUNE 22, 1948. THEREFORE RESPECTFULLY ASK YOUR OPINION IN REFERENCE TO EACH ONE INDIVIDUALLY, WHETHER THE COMPENSATION ATTACHED TO THE OFFICE TO WHICH HE HAS BEEN APPOINTED MAY BE PAID TO HIM. INASMUCH AS ALL OF THE FOUR JUDGES ARE EITHER NOW SERVING OR WILL BE BEGINNING THEIR SERVICE WITHIN THE WEEK, I SHALL APPRECIATE RECEIVING YOUR ANSWER AS SOON AS DUE CONSIDERATION OF THE MATTER WILL PERMIT.

AS POINTED OUT IN YOUR LETTER, THE QUESTION AS TO THE PROPRIETY OF PAYING SALARY TO THE JUDGES INVOLVED SEEMS TO DEPEND UPON WHETHER OR NOT THE ADJOURNMENT OF THE SENATE ON JUNE 20, 1948, WAS A ,TERMINATION OF THE SESSION" WITHIN THE MEANING OF SECTION 1761, REVISED STATUTES, AS AMENDED. IT IS REQUIRED BY THE CONSTITUTION (20TH AMENDMENT) THAT THE CONGRESS ASSEMBLE AT LEAST ONCE IN EACH YEAR, AND THAT SUCH MEETING SHALL BEGIN AT NOON ON THE THIRD DAY OF JANUARY UNLESS THE CONGRESS IS REFERRED TO AS A SESSION IN ARTICLE I, SECTION 4, WHEREIN IT IS PROVIDED THAT NEITHER HOUSE "DURING THE SESSION" OF THE CONGRESS SHALL, WITHOUT THE CONSENT OF THE OTHER, ADJOURN FOR MORE THAN THREE DAYS. THUS, THERE CLEARLY IS CONTEMPLATED THE CONTINUANCE OF A SESSION NOTWITHSTANDING THE ADJOURNMENT. GENERALLY SPEAKING, AND IN THE ABSENCE OF A SPECIAL OR EXTRAORDINARY SESSION, THERE ARE TWO SESSIONS OR ASSEMBLINGS OF EACH CONGRESS, COMMENCING--- SINCE THE 20TH AMENDMENT TO THE CONSTITUTION--- ON JANUARY 3, UNLESS A DIFFERENT DAY IS SPECIFIED BY THE CONGRESS. PURSUANT TO SENATE JOINT RESOLUTION 156 ( PUBLIC LAW 358, APPROVED AUGUST 4, 1947, 61 STAT. 768) THE SECOND SESSION OF THE 80TH CONGRESS BEGAN ON JANUARY 6, 1948. AS POINTED OUT IN YOUR LETTER, THE ADJOURNMENT OF THE CONGRESS ON JUNE 20, 1948, WAS TO A SPECIFIC DATE, NAMELY, FRIDAY, DECEMBER 31, 1948.

IT HAS BEEN ESTABLISHED THAT WHEN THE TWO HOUSES ADJOURN FOR MORE THAN THREE DAYS AND NOT TO OR BEYOND A DAY FIXED BY THE CONSTITUTION OR LAW FOR THE NEXT REGULAR SESSION TO BEGIN, THE SESSION IS NOT THEREBY NECESSARILY TERMINATED. FIFTH HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (1907), SEC. 6676, 6677. FURTHER, AN ADJOURNMENT OTHER THAN SINE DIE AMOUNTS ONLY TO A RECESS OR DISPERSION OF CONGRESS FOR A CERTAIN PERIOD, 20 OP. ATTY. GEN. 503; OR, TO STATE IT DIFFERENTLY, A FINAL ADJOURNMENT OF A SESSION OF CONGRESS DOES NOT OCCUR UNTIL THERE IS AN ADJOURNMENT SINE DIE.

IT FOLLOWS FROM THE FOREGOING THAT THE ADJOURNMENT OF THE CONGRESS ON JUNE 20, 1948, HAVING BEEN TO A SPECIFIED DAY, SAID ADJOURNMENT HAS RESULTED MERELY IN A RECESS OF THE SECOND SESSION OF THE 80TH CONGRESS WHICH WILL NOT FINALLY TERMINATE UNTIL AN ADJOURNMENT SINE DIE, PRESUMABLY AT SOME TIME BETWEEN DECEMBER 31, 1948, AND JANUARY 3, 1949.

THUS, IN A STRICT TECHNICAL SENSE, THE RECENT ADJOURNMENT OF THE SENATE WAS NOT A "TERMINATION OF THE SESSION.' SO, THE REAL QUESTION IS WHETHER A TECHNICAL CONSTRUCTION OF THE TERM WOULD TEND TO DEFEAT THE PURPOSES OF THE 1940 AMENDMENT TO SECTION 1761, REVISED STATUTES.

THE AUTHORITY FOR APPOINTMENTS SUCH AS HERE INVOLVED--- COMMONLY DESIGNATED AS RECESS APPOINTMENTS--- DERIVES FROM THE POWER VESTED IN THE PRESIDENT BY THE CONSTITUTION (ARTICLE II, SECTION 2, CLAUSE 3) TO MAKE APPOINTMENTS TO VACANCIES "DURING THE RECESS" OF THE SENATE. WHAT IS A "RECESS" WITHIN THE MEANING OF THAT PROVISIONS? IS IT RESTRICTED TO THE INTERVAL BETWEEN THE FINAL ADJOURNMENT OF ONE SESSION OF CONGRESS AND THE COMMENCEMENT OF THE NEXT SUCCEEDING SESSION; OR DOES IT REFER ALSO TO THE PERIOD FOLLOWING AN ADJOURNMENT, WITHIN A SESSION, TO A SPECIFIED DATE AS HERE? IT APPEARS TO BE THE ACCEPTED VIEW--- AT LEAST SINCE AN OPINION OF THE ATTORNEY GENERAL DATED AUGUST 27, 1921, REPORTED IN 33 OP. ATTY. GEN. 20--- THAT A PERIOD SUCH AS LAST REFERRED TO IS A RECESS DURING WHICH AN APPOINTMENT PROPERLY MAY BE MADE. BECAUSE OF THE RELEVANCE OF THE DISCUSSION CONTAINED THEREIN TO THE PRESENT MATTER, THE CITED OPINION OF THE ATTORNEY GENERAL IS QUOTED AT LENGTH AS FOLLOWS:

ON AUGUST 24. 1921, THE SENATE PASSED A CONCURRENT RESOLUTION WHICH READS:

"RESOLVED BY THE SENATE ( THE HOUSE OF REPRESENTATIVES CONCURRING), THAT WHEN THE TWO HOUSES ADJOURN ON WEDNESDAY, THE 24TH DAY OF AUGUST, 1921, THEY STAND ADJOURNED UNTIL TWELVE O-CLOCK MERIDIAN ON WEDNESDAY THE 21ST DAY OF SEPTEMBER 1921.'

THE QUESTION NOW PRESENTED IS WHETHER DURING THIS ADJOURNMENT YOU ARE AUTHORIZED TO MAKE RECESS APPOINTMENTS OR, TO USE THE LANGUAGE OF THE CONSTITUTION ITSELF, WHETHER YOU HAVE THE 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.'

IN MY INVESTIGATION OF THIS SUBJECT IT WAS CONFRONTED AT THE OUTSET WITH AN OPINION RENDERED BY ATTORNEY GENERAL KNOX TO THE PRESIDENT ON DECEMBER 24, 1901. (23 OP. 599.) ON DECEMBER 19, 1901, CONGRESS ADJOURNED TO JANUARY 6, 1902. THE QUESTION AROSE WHETHER DURING THIS INTERVAL THE PRESIDENT WAS EMPOWERED TO APPOINT, UNDER THE CONSTITUTIONAL PROVISION NOW UNDER CONSIDERATION, AN APPRAISER OF MERCHANDISE IN THE DISTRICT OF NEW YORK. THE HIGH ESTEEM I ENTERTAIN FOR THE DISTINGUISHED AUTHOR OF THIS OPINION HAS LED ME TO EXAMINE IT WITH MORE THAN ORDINARY CARE. AS WILL PRESENTLY APPEAR, I THINK THERE IS NO REAL INCONSISTENCY BETWEEN THE CONCLUSION I AM ABOUT TO ANNOUNCE AND THE CONCLUSION HE ARRIVED AT ON THE PARTICULAR POINT THEN UNDER CONSIDERATION. I AM NEVERTHELESS CONSTRAINED TO DISSENT, NOT HOWEVER WITHOUT GREAT RELUCTANCE, FROM SOME OF THE OBSERVATIONS WHICH THAT OPINION CONTAINS.

IT SEEMS TO ME THAT THE BROAD AND UNDERLYING PURPOSE OF THE CONSTITUTION IS TO PROHIBIT THE PRESIDENT FROM MAKING APPOINTMENTS WITHOUT THE ADVICE AND CONSENT OF THE SENATE WHENEVER THAT BODY IS IN SESSION SO THAT ITS ADVICE AND CONSENT CAN BE OBTAINED. REGARDLESS OF WHETHER THE SENATE HAS ADJOURNED OR RECESSED, THE REAL QUESTION, AS I VIEW IT, IS WHETHER IN A PRACTICAL SENSE THE SENATE IS IN SESSION SO THAT ITS ADVICE AND CONSENT CAN BE OBTAINED. TO GIVE THE WORD "RECESS" A TECHNICAL AND NOT A PRACTICAL CONSTRUCTION, IS TO DISREGARD SUBSTANCE FOR FORM.

IN THIS CONNECTION IT IS INTERESTING TO NOTE THAT AT AN EARLY DATE THE QUESTION AROSE WHETHER THE PRESIDENT'S POWER OF APPOINTMENT IS LIMITED TO FILING ONLY THOSE VACANCIES ACTUALLY OCCURRING DURING THE RECESS OF THE SENATE; OR WHETHER IT EXTENDS TO VACANCIES HAPPENING WHILE THE SENATE IS IN SESSION AND STILL REMAINING UNFILLED WHEN THE SESSION IS CLOSED. ADVISING THE PRESIDENT THAT HIS POWER IS BROAD ENOUGH TO COVER THE LATTER, ATTORNEY GENERAL WIRT IN 1823 ( OP. 632, 633) USED THIS LANGUAGE:

"THE SUBSTANTIAL PURPOSE OF THE CONSTITUTION WAS TO KEEP THESE OFFICES FILLED; AND POWERS ADEQUATE TO THIS PURPOSE WERE INTENDED TO BE CONVEYED. BUT IF THE PRESIDENT SHALL NOT HAVE THE POWER TO FILL A VACANCY THUS CIRCUMSTANCED, THE POWERS ARE INADEQUATE TO THE PURPOSE, AND THE SUBSTANCE OF THE CONSTITUTION WILL BE SO SACRIFICED TO A DUBIOUS CONSTRUCTION OF ITS LETTER. * *

"LOOKING TO THE REASON OF THE CASE, WHY SHOULD NOT THE PRESIDENT HAVE THE POWER TO FILL IT? IN REASON, IT SEEMS TO ME PERFECTLY IMMATERIAL WHEN THE VACANCY FIRST AROSE; FOR, WHETHER IT AROSE DURING THE SESSION OF THE SENATE OR DURING THEIR RECESS, IT EQUALLY REQUIRES TO BE FILLED. THE CONSTITUTION DOES NOT LOOK TO THE MOMENT OF THE ORIGIN OF THE VACANCY, BUT TO THE STATE OF THINGS AT THE POINT OF TIME AT WHICH THE PRESIDENT IS CALLED ON TO ACT. IS THE SENATE IN SESSION? THEN HE MUST MAKE A NOMINATION TO THAT BODY. IS IT IN RECESS? THEN THE PRESIDENT MUST FILL THE VACANCY BY A TEMPORARY COMMISSION. * * *

"THE OPPOSITE CONSTRUCTION IS, PERHAPS, MORE STRICTLY CONSONANT WITH THE MERE LETTER. BUT IT OVERLOOKS THE SPIRIT, REASON, AND PURPOSE; AND, LIKE ALL CONSTRUCTIONS MERELY LITERAL, ITS TENDENCY IS TO DEFEAT THE SUBSTANTIAL MEANING OF THE INSTRUMENT AND TO PRODUCE THE MOST EMBARRASSING INCONVENIENCES.'

THIS OPINION (1 OP. 631) HAS BEEN FOLLOWED WITH PRACTICALLY UNBROKEN UNANIMITY. (2 OP. 525; 3 OP. 673; 7 OP. 186; 10 OP. 356; 102 OP. 32; 12 OP. 455; 14 OP. 562; 15 OP. 207; 16 OP. 538; 17 OP. 530; 19 OP. 261; 18 OP. 28; 18 OP. 29; 30 OP. 314.)

THE REASONING OF ATTORNEY GENERAL STANBERY IN 12 OP. 32, 35, IS ILLUMINATING AND SIGNIFICANT:

"THERE ARE, OR MAY BE, PERIODS WHEN THERE IS NO LEGISLATURE IN SESSION TO PASS LAWS, AND NO COURT IN SESSION TO ADMINISTER LAWS, AND THIS WITHOUT PUBLIC DETRIMENT; BUT ALWAYS AND EVERYWHERE THE POWER TO EXECUTE THE LAWS IS, OR OUGHT TO BE, IN FULL EXERCISE. THE PRESIDENT MUST TAKE CARE AT ALL TIMES THAT THE LAWS BE FAITHFULLY EXECUTED. THERE IS NO POINT OF TIME IN WHICH THE POWER TO ENFORCE OR EXECUTE THE LAWS MAY NOT BE REQUIRED, AND THERE SHOULD NOT BE ANY POINT OF TIME OR INTERVAL IN WHICH THAT POWER IS DORMANT OR INCAPABLE OF ACTING. * * *

"IF ANY ONE PURPOSE IS MANIFEST IN THE CONSTITUTION, IF ANY ONE POLICY IS CLEARLY APPARENT, IT IS, THAT IN SO FAR AS THE CHIEF OR FOUNTAIN OF EXECUTIVE POWER IS CONCERNED, THERE SHALL BE NO CESSATION, NO INTERVAL OF TIME WHEN THERE MAY BE AN INCAPACITY OF ACTION. * * *

"THE TRUE THEORY OF THE CONSTITUTION IN THIS PARTICULAR SEEMS TO ME TO BE THIS: THAT AS THE EXECUTIVE POWER, IT IS ALWAYS TO BE IN ACTION, OR IN CAPACITY FOR ACTION; AND THAT, TO MEET THIS NECESSITY, THERE IS A PROVISION AGAINST A VACANCY IN THE CHIEF EXECUTIVE OFFICE, AND AGAINST VACANCIES IN ALL THE SUBORDINATE OFFICES, AND THAT ALL TIMES THERE IS A POWER TO FILL SUCH VACANCIES. IT IS THE PRESIDENT WHOSE DUTY IT IS TO SEE THAT THE VACANCY IS FILLED. IF THE SENATE IS IN SESSION, THEY MUST ASSENT TO HIS NOMINATION. IF THE SENATE IS NOT IN SESSION, THE PRESIDENT FILLS THE VACANCY ALONE "

I THINK THE LANGUAGE QUOTED IS APPLICABLE TO THE PRESENT SITUATION. NEED NOT POINT OUT THE DISASTROUS CONSEQUENCES A CONTRARY CONSTRUCTION MAY LEAD TO. IF THE PRESIDENT'S POWER OF APPOINTMENT IS TO BE DEFEATED BECAUSE THE SENATE TAKES AN ADJOURNMENT TO A SPECIFIED DATE, THE PAINFUL AND INEVITABLE RESULT WILL BE MEASURABLY TO PREVENT THE EXERCISE OF GOVERNMENTAL FUNCTIONS. I CAN NOT BRING MYSELF TO BELIEVE THAT THE FRAMERS OF THE CONSTITUTION EVER INTENDED SUCH A CATASTROPHE TO HAPPEN.

NOR ARE MY CONCLUSIONS WITHOUT AUTHORITY TO SUPPORT THEM. GOULD V. UNITED STATES, 19 CT.1CLS. 593, IS IN ACCORDANCE WITH MY VIEWS. BUT MOST SIGNIFICANT OF ALL IS THE REPORT OF THE SENATE JUDICIARY COMMITTEE PRESENTED ON MARCH 2, 1905, IN RESPONSE TO A RESOLUTION CALLING UPON IT TO CONSTRUE THE VERY CLAUSE OF THE CONSTITUTION NOW UNDER CONSIDERATION:

"IT WAS EVIDENTLY INTENDED BY THE FRAMERS OF THE CONSTITUTION THAT IT ( ART. II, SEC. 2) SHOULD MEAN SOMETHING REAL, NOT SOMETHING IMAGINARY; SOMETHING ACTUAL, NOT SOMETHING FICTITIOUS. THEY USED THE WORD AS THE MASS OF MANKIND THEN UNDERSTOOD IT AND NOW UNDERSTAND IT.IT SEEMS, IN OUR JUDGMENT, IN THIS CONNECTION THE PERIOD OF TIME WHEN THE SENATE IS NOT SITTING IN REGULAR OR EXTRAORDINARY SESSION AS A BRANCH OF THE CONGRESS, OR IN EXTRAORDINARY SESSION FOR THE DISCHARGE OF EXECUTIVE FUNCTIONS; WHEN ITS MEMBERS OWE NO DUTY OF ATTENDANCE; WHEN ITS CHAMBER IS EMPTY; WHEN, BECAUSE OF ITS ABSENCE, IT CAN NOT RECEIVE COMMUNICATIONS FROM THE PRESIDENT OR PARTICIPATE AS A BODY IN MAKING APPOINTMENTS. * * *

"THIS IS ESSENTIALLY A PROVISO TO THE PROVISION RELATIVE TO APPOINTMENTS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. IT WAS CAREFULLY DEVISED SO AS TO ACCOMPLISH THE PURPOSE IN VIEW, WITHOUT IN THE SLIGHTEST DEGREE CHANGING THE POLICY OF THE CONSTITUTION, THAT SUCH APPOINTMENTS ARE ONLY TO BE MADE WITH THE PARTICIPATION OF THE SENATE. ITS SOLE PURPOSE WAS TO RENDER IT CERTAIN THAT AT ALL TIMES THERE SHOULD BE, WHETHER THE SENATE WAS IN SESSION OR NOT, AN OFFICER FOR EVERY OFFICE, ENTITLED TO DISCHARGE THE DUTIES THEREOF.' (THIRD SESSION FIFTY-EIGHTH CONGRESS, SENATE REPORT NO. 4389; 39 CONG. RECORD, PP. 3823, 3824.)

I NOW PASS TO THE MOST DIFFICULT QUESTION OF ALL. IN ONE SENSE ITS DISCUSSION AT THE PRESENT TIME IS UNNECESSARY, BUT I NEVERTHELESS DEEM AN EXPRESSION OF MY VIEWS ADVISABLE SO AS TO AVOID ANY MISCONCEPTION AS TO THE SCOPE OF THIS OPINION. THE INQUIRY AT ONCE PRESENTS ITSELF: IF THE PRESIDENT IS EMPOWERED TO MAKE RECESS APPOINTMENTS DURING THE PRESENT ADJOURNMENT, DOES IT NOT NECESSARILY FOLLOW THAT THE POWER EXISTS IF AN ADJOURNMENT FOR ONLY 2 INSTEAD OF 28 DAYS IS TAKEN? I UNHESITATINGLY ANSWER THIS BY SAYING NO. UNDER THE CONSTITUTION NEITHER HOUSE CAN ADJOURN FOR MORE THAN THREE DAYS WITHOUT THE CONSENT OF THE OTHER. ( ART. I, SEC. 5, PAR. 4.) AS I HAVE ALREADY INDICATED, THE TERM "RECESS" MUST BE GIVEN A PRACTICAL CONSTRUCTION. AND LOOKING AT THE MATTER FROM A PRACTICAL STANDPOINT, NO ONE, I VENTURE TO SAY, WOULD FOR A MOMENT CONTEND THAT THE SENATE IS NOT IN SESSION WHEN AN ADJOURNMENT OF THE DURATION JUST MENTIONED IS TAKEN. NOR DO I THINK AN ADJOURNMENT FOR 5 OR EVEN 10 DAYS CAN BE SAID TO CONSTITUTE THE RECESS INTENDED BY THE CONSTITUTION. IN THE VERY NATURE OF THINGS THE LINE OF DEMARCATION CAN NOT BE ACCURATELY DRAWN. TO PARAPHRASE THE VERY LANGUAGE OF THE SENATE JUDICIARY COMMITTEE REPORT, THE ESSENTIAL INQUIRY, IT SEEMS TO ME, IS THIS:IS THE ADJOURNMENT OF SUCH DURATION THAT THE MEMBERS OF THE SENATE OWE NO DUTY OF ATTENDANCE? IS ITS CHAMBER EMPTY? IS THE SENATE ABSENT SO THAT IT CAN NOT RECEIVE COMMUNICATIONS FROM THE PRESIDENT OR PARTICIPATE AS A BODY IN MAKING APPOINTMENTS?

IN THIS CONNECTION I THINK THE PRESIDENT IS NECESSARILY VESTED WITH A LARGE, ALTHOUGH NOT UNLIMITED, DISCRETION TO DETERMINE WHEN THERE IS A REAL AND GENUINE RECESS MAKING IT IMPOSSIBLE FOR HIM TO RECEIVE THE ADVICE AND CONSENT OF THE SENATE. EVERY PRESUMPTION IS TO BE INDULGED IN FAVOR OF THE VALIDITY OF WHATEVER ACTION HE MAY TAKE. BUT THERE IS A POINT, NECESSARILY HARD OF DEFINITION, WHERE PALPABLE ABUSE OF DISCRETION MIGHT SUBJECT HIS APPOINTMENT TO REVIEW.

I ACCORDINGLY HAVE THE HONOR TO ADVISE YOU THAT IN MY OPINION YOU HAVE THE POWER DURING THE PRESENT ADJOURNMENT TO MAKE APPOINTMENTS UNDER THE CONSTITUTIONAL PROVISION I HAVE BEEN DISCUSSING.

THE GENERAL PROHIBITION CONTAINED IN SECTION 1761, REVISED STATUTES, AGAINST THE PAYMENT OF SALARY IS APPLICABLE TO PERSONS APPOINTED "DURING THE RECESS" OF THE SENATE. AND, IT IS NOTED FROM THE REFERRED TO LETTER OF THE ATTORNEY GENERAL SET FORTH IN SENATE REPORT 1079 THAT, IN RECOMMENDING THE ENACTMENT OF THE LEGISLATION PROVIDING EXCEPTIONS TO SAID PROHIBITION, THE ATTORNEY GENERAL CLEARLY INDICATED THAT THE PURPOSE OF THE BILL WAS TO AUTHORIZE THE PAYMENT OF SALARY TO "RECESS APPOINTEES," THERE BEING POINTED OUT, AS INDICATED IN YOUR LETTER, THE UNDESIRABILITY OF DENYING SALARY TO SUCH APPOINTEES DURING THE RECESS. WHILE THERE IS NOTHING OTHERWISE IN THE LEGISLATIVE HISTORY OF THE SAID BILL OF ANY HELPFUL ASSISTANCE IN CONSTRUING THE MEASURE, I THINK IT IS CLEAR THAT ITS PRIMARY PURPOSE WAS TO RELIEVE "RECESS APPOINTEES" OF THE BURDEN OF SERVING WITHOUT COMPENSATION DURING PERIODS WHEN THE SENATE IS NOT ACTUALLY SITTING AND IS NOT AVAILABLE TO GIVE ITS ADVICE AND CONSENT IN RESPECT TO THE APPOINTMENT, IRRESPECTIVE OF WHETHER THE RECESS OF THE SENATE IS ATTRIBUTABLE TO A FINAL ADJOURNMENT SINE DIE OR TO AN ADJOURNMENT TO A SPECIFIED DATE. CERTAINLY, THE DENIAL OF SALARY TO A RECESS APPOINTEE WOULD BE JUST AS "UNDESIRABLE" OR AS MUCH A BURDEN UPON THE INDIVIDUAL IN THE ONE INSTANCE AS IN THE OTHER. UNDER THE CIRCUMSTANCES, AND SINCE TO RESTRICT, BY INTERPRETATION, THE MEANING OF THE LANGUAGE IN QUESTION TO A FINAL ADJOURNMENT OF A SESSION WOULD BE INCONSISTENT WITH THE OBVIOUS PURPOSE OF THE LAW, I THINK IT ONLY REASONABLE TO REGARD THE TERM "TERMINATION OF THE SESSION" AS HAVING BEEN USED BY THE CONGRESS IN THE SENSE OF ANY ADJOURNMENT, WHETHER FINAL OR NOT, IN CONTEMPLATION OF A RECESS COVERING A SUBSTANTIAL PERIOD OF TIME. OF COURSE, WHAT MIGHT BE DEEMED A SUBSTANTIAL PERIOD OF TIME NECESSARILY WOULD DEPEND UPON THE FACTS OF THE PARTICULAR CASE. IN RESPECT TO THE POSSIBLE INQUIRY AS TO WHETHER A RECESS OF LESS THAN SIX MONTHS AS HERE--- SAY 2, 5 OR 10 DAYS--- IS A TERMINATION OF A SESSION WITHIN THE MEANING OF THE LAW, THE STATEMENTS OF THE ATTORNEY GENERAL ON THAT POINT CONTAINED IN THE THIRD FROM THE LAST PARAGRAPH OF THE OPINION ABOVE QUOTED WOULD APPEAR TO BE APPROPRIATE.

IN VIEW OF THE FOREGOING, IT MAY BE HELD THAT THE ADJOURNMENT OF THE SENATE ON JUNE 20, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION 218, WAS A "TERMINATION OF THE SESSION" WITHIN THE MEANING OF THE EXCEPTION EXPRESSED IN CLAUSE (B) OF SECTION 1761, REVISED STATUTES, AS AMENDED. JUDGES RAO, ITAMM, AND KAUFMAN HAVING BEEN PREVIOUSLY NOMINATED DURING THE SESSION ADJOURNED ON JUNE 20, 1948, FOR THE POSITIONS FOR WHICH THEY WERE GIVEN INTERIM APPOINTMENTS ON JUNE 22, 1948, AND THEIR NOMINATIONS HAVING BEEN PENDING IN THE SENATE WHEN IT RECESSED ON JUNE 20, 1948, WITHOUT ACTION BY THAT BODY ON SAID NOMINATIONS, IT FOLLOWS THAT THEIR CASES FALL WITHIN THE TERMS OF THE EXCEPTION INVOLVED AND THAT THE SALARY ATTACHED TO THE OFFICES PROPERLY MAY BE PAID TO THEM. HOWEVER, SO FAR AS THE CASE OF JUDGE HARPER IS CONCERNED, A DIFFERENT RESULT MUST BE REACHED. BY ITS PLAIN TERMS THE EXCEPTION TO THE SALARY PAYMENT PROHIBITION IS NOT APPLICABLE IN THE CASE OF THE "NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE.' IN RESPECT TO THIS LANGUAGE IT WAS STATED IN SENATE REPORT 1079 THAT---

THE PURPOSE OF THIS AMENDMENT IS TO PRECLUDE PAYMENT OF SALARY TO A PERSON NOMINATED TO FILL A VACANCY DURING THE TIME WHEN THE CONGRESS HAD ADJOURNED OR WAS IN RECESS BUT WHOSE NOMINATION WAS NOT SENT TO THE SENATE FOR CONFIRMATION DURING THE SESSION OF CONGRESS WHICH FOLLOWED THE RECESS DURING WHICH THE NOMINATION WAS MADE, OR HAVING BEEN SUBMITTED TO THE SENATE, WAS NOT ACTED UPON.

SINCE YOUR LETTER INDICATES THAT JUDGE HARPER RECEIVED A RECESS APPOINTMENT DURING THE PREVIOUS RECESS OF THE SENATE THERE IS COMPELLED THE CONCLUSION THAT HE IS NOT ENTITLED TO SALARY UNDER HIS INTERIM APPOINTMENT OF JUNE 22, 1948.