B-77963, AUGUST 26, 1948, 28 COMP. GEN. 121

B-77963: Aug 26, 1948

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IS TO BE REGARDED MERELY AS A CONTINUATION OF THE SECOND SESSION OF THE 80TH CONGRESS. WHOSE NOMINATIONS WERE PENDING BEFORE THE SENATE AT THE TIME THAT BODY AGAIN RECESSED TO A DEFINITE DATE MAY CONTINUE TO RECEIVE THE SALARY ATTACHED TO THE OFFICES. AGAINST PAYMENT OF COMPENSATION TO PERSONS APPOINTED DURING THE RECESS OF THE SENATE WHO HAD RECEIVED APPOINTMENTS DURING A PRECEDING RECESS AND WHOSE NOMINATIONS WERE PENDING AT THE TIME THE SECOND RECESS APPOINTMENT WAS MADE. 1948: I HAVE LETTER OF AUGUST 10. IT IS STATED IN THE AFORESAID LETTER THAT THE NAMES OF THESE THREE JUDGES WERE AGAIN SUBMITTED TO THE SENATE FOR CONFIRMATION ON JULY 29. THAT THEY WERE STILL PENDING WHEN IT ADJOURNED ON AUGUST 7.

B-77963, AUGUST 26, 1948, 28 COMP. GEN. 121

APPOINTMENTS - RECESS APPOINTMENTS THE RECONVENING OF THE SENATE OF THE 80TH CONGRESS ON JULY 26, 1948, PURSUANT TO PRESIDENTIAL PROCLAMATION, AND ITS SUBSEQUENT ADJOURNMENT ON AUGUST 7, 1948 UNTIL DECEMBER 31, 1948, IS TO BE REGARDED MERELY AS A CONTINUATION OF THE SECOND SESSION OF THE 80TH CONGRESS, AND NOT AS CONSTITUTING THE "NEXT SESSION" OF THE SENATE WITHIN THE MEANING OF ARTICLE II, SECTION 2, CLAUSE E, OF THE CONSTITUTION, SO THAT COMMISSIONS OF PERSONS HOLDING RECESS APPOINTMENTS AS FEDERAL JUDGES MADE PRIOR TO JULY 26, 1948, MAY NOT BE CONSIDERED AS HAVING EXPIRED ON AUGUST 7, 1948. PERSONS SERVING UNDER VALID RECESS APPOINTMENTS AS FEDERAL JUDGES WHEN THE SENATE HAD RECONVENED IN THE SAME SESSION, AND WHOSE NOMINATIONS WERE PENDING BEFORE THE SENATE AT THE TIME THAT BODY AGAIN RECESSED TO A DEFINITE DATE MAY CONTINUE TO RECEIVE THE SALARY ATTACHED TO THE OFFICES, PROVIDED THEY CONTINUE TO SERVE UNDER THEIR ORIGINAL RECESS APPOINTMENTS SO AS TO RENDER INAPPLICABLE THE PROHIBITION IN SECTION 1761, REVISED STATUTES, AS AMENDED, AGAINST PAYMENT OF COMPENSATION TO PERSONS APPOINTED DURING THE RECESS OF THE SENATE WHO HAD RECEIVED APPOINTMENTS DURING A PRECEDING RECESS AND WHOSE NOMINATIONS WERE PENDING AT THE TIME THE SECOND RECESS APPOINTMENT WAS MADE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AUGUST 26, 1948:

I HAVE LETTER OF AUGUST 10, 1948, FROM THE ASSISTANT DIRECTOR, REFERRING TO THE DECISION OF THIS OFFICE DATED JULY 16, 1948, TO YOU, B 77963, 28 COMP. GEN. 30, AND PRESENTING A FURTHER QUESTION CONCERNING THE RIGHT TO PAYMENT OF SALARY OF HONORABLE EDWARD ALLEN TAMM, HONORABLE SAMUEL HAMILTON KAUFMAN, AND THE HONORABLE PAUL P. RAO, ALL OF WHOM RECEIVED RECESS APPOINTMENTS TO THE FEDERAL JUDICIARY FROM THE PRESIDENT DURING THE RECESS OF THE CONGRESS WHICH OCCURRED JUNE 20 TO JULY 26, 1948.

IT IS STATED IN THE AFORESAID LETTER THAT THE NAMES OF THESE THREE JUDGES WERE AGAIN SUBMITTED TO THE SENATE FOR CONFIRMATION ON JULY 29, 1948, AFTER IT HAD RECONVENED ON JULY 26, 1948, PURSUANT TO THE PRESIDENT'S PROCLAMATION ( PROC. NO. 2796, 13, F.R. 4057); THAT THE SENATE TOOK NO ACTION ON THESE NOMINATIONS, AND THAT THEY WERE STILL PENDING WHEN IT ADJOURNED ON AUGUST 7, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION NO. 222, READING AS FOLLOWS:

RESOLVED BY THE HOUSE OF REPRESENTATIVES (THE SENATE CONCURRING), THAT WHEN THE TWO HOUSES ADJOURN ON SATURDAY, AUGUST 7, 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 TEH 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.

IT IS INDICATED IN THE LETTER THAT, IN ACCORDANCE WITH THE AFOREMENTIONED DECISION OF JULY 16, 1948, THE THREE JUDGES RECEIVED PAYMENT OF SALARY IN DUE COURSE AFTER THE ASSUMPTION OF OFFICE UNDER THEIR RECESS APPOINTMENTS. A DECISION NOW IS REQUESTED AS TO WHETHER THE OCCURRENCE OF THE FACTS, AS SET FORTH ABOVE, SUBSEQUENT TO THE RENDITION OF THE CITED DECISION, REQUIRES THE SUSPENSION OF PAYMENT OF THEIR SALARIES.

IN ADDITION TO THE ABOVE STATED FACTS, IT IS UNDERSTOOD THAT JUDGES TAMM, KAUFMAN, AND RAO HAVE NOT BEEN GIVEN INTERIM APPOINTMENTS SINCE THE ADJOURNMENT OF THE CONGRESS ON AUGUST 7, 1948, PURSUANT TO THE RESOLUTION ABOVE QUOTED.

IN CONSIDERING THE QUESTION PRESENTED, IT IS DEEMED APPROPRIATE TO ADVERT BRIEFLY TO THE FACTS AND THE HOLDING IN THE DECISION OF JULY 16, 1948. SINCE THE RELEVANT CIRCUMSTANCES IN THE CASE OF EACH OF THE JUDGES INVOLVED DO NOT DIFFER IN ANY MATERIAL RESPECTS, THE PRESENT MATTER WILL BE CONSIDERED, FOR THE PURPOSE OF SIMPLIFICATION, UPON THE BASIS OF THE FACTS IN JUDGE TAMM'S CASE. THE NOMINATION OF JUDGE TAMM WAS SENT TO THE SENATE ON FEBRUARY 3, 1948. THE SENATE, WITHOUT ACTING ON THE NOMINATIONS, ADJOURNED PURSUANT TO HOUSE CONCURRENT RESOLUTION 218, ON JUNE 20, 1948, TO A SPECIFIED DATE, NAMELY, FRIDAY, DECEMBER 31, 1948, UNLESS NOTIFIED TO REASSEMBLE AT AN EARLIER DATE BY CALL OF ITS OFFICERS. ON JUNE 22, 1948, JUDGE TAMM WAS GIVEN A RECESS APPOINTMENT BY THE PRESIDENT TO THE OFFICE HE NOW HOLDS AND, ON JUNE 28, 1948, HE TOOK THE OATH OF OFFICE AND ENTERED ON DUTY. UPON THE BASIS OF THESE FACTS, THERE WAS PRESENTED FOR CONSIDERATION THE QUESTION AS TO WHETHER PAYMENT OF SALARY COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 1761, REVISED STATUTES, AS AMENDED, 5 U.S.C. 56, WHICH ARE AS FOLLOWS:

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. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY (A) IF THE VACANCY AROSE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION OF THE SENATE; OR (B) 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; OR (C) IF A NOMINATION FOR SUCH OFFICE WAS REJECTED BY THE SENATE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION AND A PERSON OTHER THAN THE ONE WHOSE NOMINATION WAS REJECTED THEREAFTER RECEIVES A RECESS COMMISSION: PROVIDED, THAT A NOMINATION TO FILL SUCH VACANCY UNDER (A), (B), OR (C) OF THE SECTION, SHALL BE SUBMITTED TO THE SENATE NOT LATER THAN FORTY DAYS AFTER THE COMMENCEMENT OF THE NEXT SUCCEEDING SESSION OF THE SENATE.

IN THE DECISION OF JULY 16, 1948, IT WAS HELD THAT THE ADJOURNMENT OF THE SENATE ON JUNE 20, WAS A "TERMINATION OF THE SESSION" WITHIN THE MEANING OF CLAUSE (B) OF SECTION 1761, REVISED STATUTES, SUPRA, AND THAT JUDGE TAMM, HAVING BEEN PREVIOUSLY NOMINATED DURING THAT SESSION, AND HIS NOMINATION HAVING BEEN PENDING IN THE SENATE WHEN IT ADJOURNED ON JUNE 20, WAS ENTITLED TO BE PAID THE SALARY OF THE OFFICE UNDER HIS APPOINTMENT OF JUNE 22, 1948.

AS POINTED OUT IN YOUR LETTER, SINCE THE FOREGOING DECISION OF JULY 16, 1948, WAS RENDERED, THE SENATE RECONVENED ON JULY 26, PURSUANT TO THE CALL OF THE PRESIDENT; JUDGE TAMM'S NOMINATION WAS AGAIN SUBMITTED TO THE SENATE ON JULY 29; AND ON AUGUST 7, THE SENATE ADJOURNED UNTIL DECEMBER 31, 1948. WHAT EFFECT THEM, IF ANY, DO THE RECENT MEETING OF THE SENATE AND THE ENSUING RECESS HAVE UPON THE RIGHT OF JUDGE TAMM TO CONTINUE TO RECEIVE THE SALARY OF HIS OFFICE?

AS WAS INDICATED IN THE DECISION OF JULY 16, 1948, THE APPOINTMENT OF JUDGE TAMM ON JUNE 22, 1948, APPEARS TO HAVE BEEN A VALID RECESS APPOINTMENT BY THE PRESIDENT UNDER ARTICLE II, SECTION 2, CLAUSE 3, OF THE CONSTITUTION WHICH PROVIDES AS FOLLOWS:

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. HENCE, THERE WOULD APPEAR TO BE FOR CONSIDERATION FIRST THE QUESTION AS TO WHETHER THE CONVENING OF THE CONGRESS ON JULY 26, 1948, AND ITS SUBSEQUENT ADJOURNMENT ON AUGUST 7, 1948, CONSTITUTED THE NEXT SESSION OF THE SENATE WITHIN THE MEANING OF THE SAID ARTICLE OF THE CONSTITUTION AND THAT, AS A CONSEQUENCE, JUDGE TAMM'S COMMISSION EXPIRED ON THE LATTER DATE. IF THE ANSWER TO THE SAID QUESTION BE IN THE AFFIRMATIVE, IT WOULD SEEM TO FOLLOW THAT THE PAYMENT OF THE SALARY TO JUDGE TAMM BEYOND AUGUST 7 PROPERLY MAY NOT BE MADE. HOWEVER, IN VIEW OF THE MATTERS HEREINAFTER SET FORTH, I HAVE NO DOUBT BUT THAT THE ANSWER TO THE SAID QUESTION MUST BE IN THE NEGATIVE. IN THE DECISION OF JULY 16, 1948, IT WAS POINTED OUT THAT THE ADJOURNMENT OF THE CONGRESS ON JUNE 20, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION NO. 218 WAS NOT AN ADJOURNMENT SINE DIE BUT WAS AN ADJOURNMENT TO A SPECIFIC DATE, AND IT WAS STATED THAT SAID ADJOURNMENT MERELY CONSTITUTED A RECESS OF THE SECOND SESSION OF THE 80TH CONGRESS. THE SAID RESOLUTION NO. 218 READS AS FOLLOWS:

RESOLVED, THAT WHEN THE TWO HOUSES ADJOURNED ON SUNDAY, JUNE 20, 1948, THEY STAND ADJOURNED UNTIL 12 O-CLOCK MERIDIAN ON 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 THE 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 CORRECTNESS OF THE REFERRED-TO STATEMENT IS SUBSTANTIATED BY THE FACTS HEREINAFTER SET FORTH.

FIRST, IT WILL BE OBSERVED THAT THE PROCLAMATION OF THE PRESIDENT ( PROC. NO. 2796, 13 F.R. 4057) NOTIFYING THE CONGRESS TO ASSEMBLE ON JULY 26, 1948, SPEAKS MERELY OF A CONVENING OF SUCH BODY AND DOES NOT REFER TO THE MEETING AS AN "EXTRA" OR "SPECIAL" SESSION.

SAID PROCLAMATION READS, IN PART, AS FOLLOWS:

WHEREAS THE PUBLIC INTEREST REQUIRES THAT THE CONGRESS OF THE UNITED STATES SHOULD BE CONVENED AT TWELVE O-CLOCK, NOON, ON MONDAY, THE TWENTY- SIXTH DAY OF JULY, 1948, TO RECEIVE SUCH COMMUNICATION AS MAY BE MADE BY THE EXECUTIVE; NOW, THEREFORE, I, HARRY S. TRUMAN, PRESIDENT OF THE UNITED STATES OF AMERICA, DO HEREBY PROCLAIM AND DECLARE THAT AN EXTRAORDINARY OCCASION REQUIRES THE CONGRESS OF THE UNITED STATES TO CONVENE AT THE CAPITOL IN THE CITY OF WASHINGTON ON MONDAY, THE TWENTY-SIXTH DAY OF JULY, 1948, AT TWELVE O-CLOCK, NOON, OF WHICH ALL PERSONS WHO SHALL AT THAT TIME BE ENTITLED TO ACT AS MEMBERS THEREOF ARE HEREBY REQUIRED TO TAKE NOTICE. TO THIS POINT, THE INSTANT SITUATION IS IDENTICAL, IN ALL MATERIAL RESPECTS, TO THAT WHICH EXISTED IN CONNECTION WITH ADJOURNMENT OF THE FIRST SESSION OF THE 80TH CONGRESS ON JULY 27, 1947, BY SENATE CONCURRENT RESOLUTION NO. 33, AND ITS RECONVENING ON NOVEMBER 17, 1947, PURSUANT TO PROCLAMATION NO. 2751, ISSUED BY THE PRESIDENT ON OCTOBER 23, 1947. F.R. 6941. THE SAID ADJOURNMENT OF THE FIRST SESSION OF THE 80TH CONGRESS AND ITS SUBSEQUENT RECONVENING ON NOVEMBER 17, 1947, WAS THE SUBJECT OF AN OPINION BY JUDGE WYZANSKI OF THE UNITED STATES DISTRICT COURT, DISTRICT OF MASSACHUSETTS, RENDERED ON NOVEMBER 18, 1947 IN THE CASE OF ASHLEY V. KEITH OIL CORPORATION, ET L., 7 F.R.D. 589. THE QUESTION THERE INVOLVED WAS THE EFFECTIVE DATE OF CERTAIN AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE WHICH WERE TO TAKE EFFECT "THREE MONTHS SUBSEQUENT TO THE ADJOURNMENT OF THE FIRST REGULAR SESSION OF THE 80TH CONGRESS.' THE REMARKS OF JUDGE WYZANSKI ARE BELIEVED TO BE SO PERTINENT TO THE PRESENT SITUATION THAT I FEEL THEY SHOULD BE QUOTED HEREIN AT LENGTH.

THE OPINION READS IN PART AS FOLLOWS (PAGES 590-592):

THE FIRST REGULAR SESSION BEGAN JANUARY 3, 1947. THAT SESSION COULD BE BROUGHT TO A CLOSE IN AT LEAST TWO WAYS:FIRST, BY A CONCURRENT RESOLUTION OF THE TWO HOUSES OF CONGRESS ADJOURNING THE SESSION SINE DIE; SECOND, BY THE BEGINNING OF A NEW SESSION EITHER UNDER AN ACT OF CONGRESS OR UNDER THAT CLAUSE OF SECTION 2 OF THE TWENTIETH AMENDMENT TO THE UNITED STATES CONSTITUTION WHICH PROVIDES THAT A NEW "MEETING SHALL BEGIN AT NOON ON THE 3RD DAY OF JANUARY (IN EVERY YEAR) UNLESS THEY ( CONGRESS) SHALL BY LAW APPOINT A DIFFERENT DAY.'

NEITHER OF THOSE TWO METHODS OF ADJOURNING THE FIRST SESSION OF CONGRESS HAS AS YET BECOME OPERATIVE.

CONGRESS HAS NOT AS YET PASSED A RESOLUTION TO ADJOURN THE FIRST SESSION SINE DIE. IT IS TRUE THAT WHEN THE 80TH CONGRESS WAS IN SESSION LAST SUMMER IT PASSED CONCURRENT RESOLUTION NO. 33 SET OUT IN THE MARGIN, PROVIDING THAT CONGRESS SHOULD ADJOURN FROM JULY 27, 1947 UNTIL JANUARY 2, 1948, UNLESS NOTIFIED TO REASSEMBLE UNDER PROVISIONS NOT NOW MATERIAL. BUT THAT RESOLUTION WAS A MERE TEMPORARY ADJOURNMENT. IT WAS THE FORM OF RESOLUTION CUSTOMARILY USED FOR A RECESS. SEE SEC. 949 OF THE RULES OF THE HOUSE OF REPRESENTATIVES, HOUSE DOCUMENT NUMBER 810, 78TH CONGRESS, 2D SESS. IT RESEMBLED SENATE RESOLUTION OF JULY 8, 1943, ADOPTED BY THE 78TH CONGRESS, FIRST SESSION, CONGRESSIONAL RECORD, 78TH CONG., ST SESS. 7471, UNDER WHICH CONGRESS SEPARATED AND REASSEMBLED WITHOUT ENDING AN OLD SESSION OR BEGINNING A NEW SESSION. CF. 57 STAT. 568; CONGRESSIONAL RECORD, 78TH CONG., ST SESS., 7519. THUS IT CANNOT PROPERLY BE SAID THAT THE 80TH CONGRESS BY CONCURRENT RESOLUTION NO. 33 OR BY ANY OTHER MEASURE CLOSED THE FIRST SESSION SINE DIE AS OF JULY 27, 1947.

NOR HAS THE FIRST SESSION OF THE 80TH CONGRESS BEEN CLOSED AS YET BY THE BEGINNING OF A NEW SESSION UNDER EITHER AN ACT OF CONGRESS OR THE TWENTIETH AMENDMENT. THE ONLY RELEVANT LAW PASSED BY THE EIGHTIETH CONGRESS IS SENATE JOINT RESOLUTION NO. 156, WHICH STATES THAT "THE SECOND SESSION OF THE EIGHTIETH CONGRESS SHALL BEGIN AT NOON TUESDAY, JANUARY 6, 1948.' CONGRESSIONAL RECORD, 80TH CONG., ST SESS. 10643. THAT ACT WOULD ONLY OPERATE TO TERMINATE THE FIRST SESSION AS OF 11:59 A.M. JANUARY 6, 1948. AND THIS DATE IS NOT IN ANY WAY ADVANCED BY THE TWENTIETH AMENDMENT WHICH SETS THE DATE AS JANUARY 3 ONLY IF THERE IS NO LAW APPOINTING A DIFFERENT DAY.

SO FAR MY REASONING APPEARS TO BE ENTIRELY IN ACCORD WITH THAT OF THE PARLIAMENTARIAN OF THE HOUSE OF REPRESENTATIVES, THE SECRETARY OF THE SENATE AND THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ANNUAL REPORT OF THE DIRECTOR, SEPTEMBER 1947, PP. 26, 27, ALTHOUGH IT SEEMS CONTRARY TO THE RULING OF JUDGE REEVES IN SHAFIR V. WABASH R. CO., C.C.W.D. MO., 1 F.R.D. 467. BUT THERE REMAINS THE DIFFICULT PROBLEM AS TO WHETHER THE FIRST SESSION OF THE 80TH CONGRESS HAS ALREADY BEEN BROUGHT TO A CLOSE NOT BY CONCURRENT RESOLUTION, BY ACT OF CONGRESS OR BY THE TWENTIETH AMENDMENT, BUT BY THE ACTION OF CONGRESS IN RECONVENING ON NOVEMBER 117 PURSUANT TO THE PROCLAMATION OF PRESIDENT TRUMAN ISSUED ON OCTOBER 23, 1947, NO. 2751. 12 FED. REG. NO. 210; OCT. 25, 1947.

ARTICLE II, SEC. 3, OF THE UNITED STATES CONSTITUTION PROVIDES THAT THE PRESIDENT "MAY ON EXTRAORDINARY OCCASIONS, CONVENE BOTH HOUSES, OR EITHER OF THEM.' THIS IS LANGUAGE OF UNUSUAL BREADTH. IT IS NOT LIMITED TO THE SITUATION WHERE A PARTICULAR CONGRESS HAS NEVER MET IN SESSION, OR WHERE A CONGRESS HAS MET AND ADJOURNED SINE DIE. IT ALSO COVERS THE SITUATION WHERE CONGRESS OR EITHER HOUSE IS NOT MEETING BECAUSE IT IS IN RECESS UNDER A TEMPORARY ADJOURNMENT.

IF THE PRESIDENT CONVENES A CONGRESS THAT HAS NEVER MET, OF COURSE, HE IS CONVENING IT IN A NEW SESSION, WHICH IS CALLED IN THE PROCLAMATION AN "EXTRA" SESSION SEE E. G. PROCLAMATION OF PRESIDENT HOOVER, MARCH 7, 1929, 56 STAT. 2981. IF THE PRESIDENT CONVENES A CONGRESS THAT HAS MET BUT ADJOURNED SINE DIE, HE IS LIKEWISE CONVENING IT IN A NEW SESSION, WHICH IS CALLED AN ,EXTRA" SESSION. SEE E.G. PROCLAMATION OF PRESIDENT ROOSEVELT, SEPT. 13, 1939, NO. 2365, 54 STAT. 2660. BUT IN THE CASE AT BAR WE ARE FACED WITH A SITUATION WHERE WHEN THE PRESIDENT ISSUED HIS PROCLAMATION CONGRESS HAD MET AND ADJOURNED ONLY TEMPORARILY. IS THE RECONVENING OF CONGRESS PURSUANT TO THE PRESIDENT'S CALL AUTOMATICALLY THE BEGINNING OF A NEW SESSION AND THE CLOSE OF AN OLD SESSION? JEFFERSON EVIDENTLY THOUGHT IT WOULD BE. SEC. 51 OF HIS MANUAL STATES THAT IF CONGRESS IS"CONVENED BY THE PRESIDENT'S PROCLAMATION, THIS MUST BEGIN A NEW SESSION, AND OF COURSE DETERMINE THE PRECEDING ONE TO HAVE BEEN A SESSION.' THIS MANUAL IS, OF COURSE, ENTITLED TO GREAT WEIGHT BECAUSE SINCE 1837 IT HAS BEEN, BY VIRTUE OF A STILL EFFECTIVE RULE OF THE HOUSE OF REPRESENTATIVES, GOVERNING AUTHORITY IN THAT HOUSE IN ALL CASES WHERE THERE IS NO CONFLICT WITH THE STANDING RULES AND ORDERS OF THAT HOUSE. HOUSE RULE 43, HOUSE DOCUMENT NUMBER 810, 78TH CONGRESS, 2D SESS. SEE CONGRESSIONAL RECORD, 80TH CONG., ST SESS., 36.

ON THE OTHER HAND, THE PRESENT PARLIAMENTARIAN OF THE HOUSE AN SECRETARY OF SENATE HAVE CONSIDERED THE REASSEMBLING OF THE CONGRESS ON NOVEMBER 17, 1947, AS A CONTINUATION OF THE FIRST SESSION. IN THEIR JUDGMENT NO EXTRA OR SPECIAL SESSION HAS BEGUN. AND THEIR VIEW IS FINDING EXPRESSION EVERY DAY IN THE PAGENATION OF THE CONGRESSIONAL RECORD AND IN LIKE OFFICIAL CONGRESSIONAL DOCUMENTS. CONGRESS SO FAR HAS APPARENTLY ACQUIESCED IN THIS ACTION OF ITS DELEGATES; THOUGH THE MATTER DOES NOT APPEAR TO HAVE BEEN DEBATED.

MOREOVER, THE VIEW OF THESE OFFICERS OF CONGRESS IS NOT IN CONFLICT WITH ANY SPECIFIC LANGUAGE OF PRESIDENT TRUMAN'S PROCLAMATION. UNLIKE THE PROCLAMATIONS OF PRESIDENTS HOOVER AND ROOSEVELT ALREADY CITED, THE PROCLAMATION OF PRESIDENT TRUMAN DATED OCTOBER 23, 1947, DOES NOT REFER TO AN ,EXTRA" SESSION WHICH WILL RESULT FROM THE CONVENING OF CONGRESS PURSUANT TO THE PRESIDENT'S CALL.

IT IS UNNECESSARY FOR ME IN THE CASE AT BAR TO DECIDE WHICH OF THESE CONFLICTING VIEWS IS CORRECT. EVEN IF JEFFERSON'S MANUAL IS CORRECT, THE NEW AMENDMENT TO THE RULES CANNOT GO INTO EFFECT PRIOR TO FEBRUARY 17, 1948. IT IS QUITE POSSIBLE THAT BEFORE THEN CONGRESS BY LEGISLATIVE ACTION WILL CONCLUSIVELY REMOVE ANY AMBIGUITY AS TO THE PROPER NUMERICAL DESCRIPTION OF ITS PRESENT SESSION, OR WILL MORE EXPLICITLY PROVIDE A DATE WHEN THE NEW AMENDMENTS TO THE RULES SHALL GO INTO EFFECT.

THEREAFTER, THE FIRST SESSION OF THE 80TH CONGRESS ADJOURNED SINE DIE ON DECEMBER 19, 1947, THUS EVIDENCING THE CORRECTNESS OF THE AFORESAID VIEWS OF JUDGE WYZANSKI THAT THE ADJOURNMENT OF THE CONGRESS ON JULY 27, 1947, PURSUANT TO SENATE CONCURRENT RESOLUTION NO. 33, CONSTITUTED A RECESS AND THAT THE RECONVENING OF THE CONGRESS ON NOVEMBER 17, 1947, PURSUANT TO THE PROCLAMATION OF THE PRESIDENT ISSUED ON OCTOBER 23, 1947, WAS A CONTINUATION OF THE FIRST SESSION AND NOT A NEW SESSION.

IN THE LIGHT OF THE FOREGOING, IT SEEMS CLEAR THAT THE RECONVENING OF THE 80TH CONGRESS ON JULY 26, 1948, PURSUANT TO THE PRESIDENT'S PROCLAMATION OF JULY 15, 1948 ( PROC. NO. 2796, QUOTED ABOVE), MERELY CONSTITUTED A CONTINUATION OF THE SECOND SESSION.

FURTHERMORE, AND OF GREATER SIGNIFICANCE, IS THE FACT THAT THE CONGRESS ITSELF CONSIDERS THE PROCEEDINGS BETWEEN JULY 26 AND AUGUST 7, 1948, TO BE A CONTINUATION OF THOSE OF THE SECOND SESSION WHICH HAD ADJOURNED ON JULY 20, 1948. IN SUCH CONNECTION, THE CALENDARS OF BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE COVERING THE PROCEEDINGS BETWEEN JULY 26 AND AUGUST 7 SHOW THAT THE BUSINESS THEREOF WAS THAT OF THE SECOND SESSION OF THE 80TH CONGRESS. ALSO, THE CONGRESSIONAL RECORD FOR THE PERIOD INVOLVED REFERS TO THE MATTERS CONTAINED THEREIN AS THE PROCEEDINGS AND DEBATES OF THE 80TH CONGRESS, SECOND SESSION. IN ADDITION, IT IS UNDERSTOOD THAT THE JOURNALS OF THE CONGRESS SHOW THE PROCEEDINGS OF THE PERIOD AS BEING THOSE OF THE SECOND SESSION OF THE 80TH CONGRESS.

FINALLY, IT WILL BE OBSERVED FROM HOUSE CONCURRENT RESOLUTION NO. 222, QUOTED ABOVE, THAT, ON AUGUST 7, 1948, THE CONGRESS ADJOURNED UNTIL DECEMBER 31, 1948, OR UNTIL THE THIRD DAY AFTER THE RESPECTIVE MEMBERS WERE NOTIFIED TO REASSEMBLE IN ACCORDANCE WITH SECTION 2 OF SAID RESOLUTION; THAT IS, BY THE LEADERS OF THE MAJORITY PARTY.

IN MY OPINION, THE FOREGOING DEMONSTRATES CONCLUSIVELY THAT THE CONVENING OF THE CONGRESS DURING THE PERIOD JULY 26 TO AUGUST 7, 1948-- SUBSEQUENT TO JUDGE TAMM'S APPOINTMENT--- WAS NOT THE "NEXT SESSION" OF THE SENATE WITHIN THE MEANING OF ARTICLE II, SECTION 2, CLAUSE 3, OF THE CONSTITUTION, AND THAT JUDGE TAMM'S COMMISSION TO OFFICE DID NOT EXPIRE ON AUGUST 7, 1948, WHEN THE SECOND SESSION OF THE 80TH CONGRESS ADJOURNED PURSUANT TO HOUSE CONCURRENT RESOLUTION NO. 222, SUPRA. IT FOLLOWS, THEREFORE, THAT THE PAYMENT OF SALARY TO JUDGE TAMM PROPERLY MAY BE MADE AFTER SAID DATE UNLESS SUCH PAYMENT MAY BE SAID TO BE PROHIBITED BY THE PROVISIONS OF SECTION 1761, REVISED STATUTES, AS AMENDED, SUPRA.

AS HEREINBEFORE STATED, IT WAS HELD IN OFFICE DECISION OF JULY 16, 1948, THAT JUDGE TAMM WAS ENTITLED TO THE PAYMENT OF SALARY UNDER HIS RECESS APPOINTMENT OF JUNE 22, 1948, BY VIRTUE OF THE PROVISIONS OF CLAUSE (B) OF SECTION 1761 OF THE REVISED STATUTES, AS AMENDED, SINCE HIS NOMINATION WAS PENDING IN THE SENATE WHEN IT ADJOURNED ON JUNE 20, 1948. WHILE CLAUSE (B) IS, IN ITSELF, AN EXCEPTION TO THE SALARY PAYMENT PROHIBITION OF THE ORIGINAL STATUTE, IT WILL BE NOTED THAT THERE IS CONTAINED IN THE SAID CLAUSE WHAT IS, IN EFFECT, AN EXCEPTION TO THE EXCEPTION. THAT IS TO SAY, THE CLAUSE PERMITS SALARY PAYMENTS TO RECESS APPOINTEES WHOSE NOMINATIONS WERE PENDING UPON THE TERMINATION OF THE SESSION OF THE SENATE, PROVIDED THE APPOINTEE HAD NOT RECEIVED A RECESS APPOINTMENT DURING THE PRECEDING RECESS OF THE SENATE. UNDER THE REASONING OF THE DECISION OF JULY 16--- HOLDING THAT THE ADJOURNMENT OF THE CONGRESS ON JUNE 20, TO DECEMBER 31, 1948, PURSUANT TO HOUSE CONCURRENT RESOLUTION 218, WAS A "TERMINATION OF THE SESSION" WITHIN THE MEANING OF SECTION 1761, REVISED STATUTES, AS AMENDED--- IT MUST BE CONSIDERED THAT THE ADJOURNMENT ON AUGUST 7, TO DECEMBER 31, 1948, LIKEWISE CONSTITUTES A "TERMINATION OF THE SESSION" TO THAT EXTENT. AND, SINCE THERE WAS ANOTHER NOMINATION OF JUDGE TAMM TO OFFICE PENDING IN THE SENATE ON AUGUST 7, THE REAL QUESTION IS WHETHER THE PRESENT CASE FALLS WITHIN THE CLASS OF THOSE SPECIFICALLY EXCLUDED FROM THE EXEMPTION PROVIDED BY CLAUSE (B).

IN FACT, THE ISSUE CAN BE FURTHER SIMPLIFIED. AS ILLUSTRATED ABOVE, THERE ARE NOW INVOLVED NOT ONE BUT TWO TERMINATIONS OF SENATE SESSIONS WITHIN THE MEANING OF THE SUBJECT STATUTE--- THAT OF JUNE 20 AND THAT OF AUGUST 7. THE DECISION HERE WOULD APPEAR TO TURN UPON WHETHER THE PHRASE ,TERMINATION OF THE SESSION" IN CLAUSE (B) SHOULD BE REGARDED AS HAVING REFERENCE TO THE FIRST OR THE SECOND ADJOURNMENT DATE. IF IT REFERS TO THE EARLIER DATE ONLY THE CONCLUSION OF THE DECISION OF JULY 16 STILL OBTAINS; IF, HOWEVER, THE TERM NOW MUST BE HELD TO REFER TO THE LATER DATE, JUDGE TAMM IS SPECIFICALLY EXCLUDED FROM THE EXEMPTION PROVIDED GENERALLY BY CLAUSE (B) SINCE HE WOULD BE A PERSON WHO, THOUGH HAVING A NOMINATION PENDING AT THE TERMINATION OF THE SESSION ( AUGUST 7), WOULD HAVE BEEN APPOINTED "DURING THE PRECEDING RECESS.'

AS STATED ABOVE, THE PROHIBITION IN SECTION 1761, REVISED STATUTES, IS AGAINST THE PAYMENT OF SALARY TO A RECESS APPOINTEE IF THE VACANCY TO WHICH HE IS APPOINTED "EXISTED WHILE THE SENATE WAS IN SESSION.' THERE CAN BE NO QUESTION THAT THE "SESSION" OF THE SENATE IN CONTEMPLATION THERE IS THE SESSION IMMEDIATELY PRECEDING THE RECESS DURING WHICH THE APPOINTMENT WAS MADE. CLAUSE (A), AS ADDED BY THE 1940 AMENDMENT, IS TO THE EFFECT THAT THE PROHIBITION SHALL NOT APPLY IF THE VACANCY AROSE WITHIN 30 DAYS "PRIOR TO THE TERMINATION OF THE SESSION OF THE SENATE.' THE SAME CONCLUSION MUST BE REACHED WITH RESPECT TO THE "SESSION" REFERRED TO IN THIS EXCEPTION. THAT IS, IT LIKEWISE MUST BE THE SESSION IMMEDIATELY PRECEDING THE RECESS DURING WHICH THE APPOINTMENT WAS MADE. SO THAT, COMING TO CLAUSE (B), IT WOULD BE WHOLLY INCONSISTENT TO SAY THAT THE PHRASE "TERMINATION OF THE SESSION" AS USED THEREIN HAD REFERENCE TO OTHER THAN THE SESSION PRECEDING THE RECESS WHEN THE APPOINTMENT WAS MADE. CLAUSE (C) IS THE SAME. IN OTHER WORDS, THE ENTIRE STATUTE SPEAKS AS OF THE DATE OF THE RECESS APPOINTMENT UNDER WHICH THE CLAIM TO COMPENSATION ARISES.

THIS POSITION IS FURTHER SUPPORTED BY THE GENERAL RULE THAT, IN A STATUTE, THE ARTICLE "THE" IS TO BE CONSTRUED AS HAVING A SPECIFYING OR PARTICULARIZING EFFECT, OPPOSED TO THE INDEFINITE OR GENERALIZING FORCE OF "A" OR "ANY.' THUS, THE LANGUAGE "TERMINATION OF THE SESSION" ORDINARILY WOULD BE VIEWED AS HAVING REFERENCE TO A PARTICULAR SESSION RATHER THAN TO JUST ANY SESSION. HERE, THE SESSION PRECEDING THE RECESS WHEN THE APPOINTMENT IS MADE WOULD BE THE ONE MOST NATURALLY CONTEMPLATED BY THE LANGUAGE.

IN THIS VIEW OF THE STATUTE, IT MUST BE CONCLUDED THAT THE RIGHT OF JUDGE TAMM TO COMPENSATION UNDER HIS RECESS APPOINTMENT OF JUNE 22, 1948, TO WHICH HE BECAME ENTITLED UNDER CLAUSE (B) OF SECTION 1761, REVISED STATUTES, AS AMENDED, HAS NOT BEEN DIVESTED OR OTHERWISE AFFECTED BY THE EVENTS OCCURRING SUBSEQUENT TO SUCH APPOINTMENT AND VESTING OF RIGHT. OTHER WORDS, THE SUBSEQUENT OCCURRING EVENTS HAVE NOT HAD THE EFFECT OF PLACING JUDGE TAMM IN THE POSITION OF A PERSON APPOINTED DURING THE RECESS OF THE SENATE WHO HAD RECEIVED AN APPOINTMENT DURING A PRECEDING RECESS OF THE SENATE AND WHOSE NOMINATION WAS PENDING BEFORE THE SENATE AT THE TIME THE SECOND RECESS APPOINTMENT WAS MADE. THE SAME PRINCIPLES APPLY, OF COURSE, TO OTHERS IN LIKE STATUS.

IT MIGHT BE STATED THAT I AM NOT UNAWARE OF CERTAIN COROLLARIES OF THIS DECISION WHICH AT FIRST BLUSH MIGHT SEEM INCONGRUOUS BUT WHICH, UPON THOROUGH CONSIDERATION, HAVE BEEN DEEMED OF LESS THAN CONTROLLING IMPORTANCE. IN THE FIRST PLACE, THE CONSTITUTION ( ARTICLE II, SECTION 2, CLAUSE 3) PROVIDES THAT RECESS APPOINTMENTS SHALL EXPIRE AT THE END OF THE NEXT SESSION OF THE SENATE. IT HAS BEEN STATED ABOVE THAT THE ADJOURNMENT OF AUGUST 7 WOULD HAVE TO BE REGARDED AS A "TERMINATION OF THE SESSION" WITHIN THE MEANING OF THE COMPENSATION STATUTE, AND YET, IN APPLYING THE SAID CONSTITUTIONAL PROVISION THE ADJOURNMENT OF AUGUST 7 WOULD HAVE TO BE REGARDED MERELY AS EFFECTING A RECESS OF THE SECOND SESSION OF THE 80TH CONGRESS. SUFFICE IT TO SAY THAT THIS APPARENT INCONSISTENCY IS ATTRIBUTABLE SOLELY TO A CONSTRUCTION OF THE COMPENSATION STATUTE DESIGNED TO CARRY OUT THE OBVIOUS LEGISLATIVE INTENT.

THEN, THERE IS THE RATHER ANOMALOUS SITUATION IN THAT, SHOULD JUDGE TAMM- -- OR OTHERS IN LIKE POSITION--- RECEIVE A NEW RECESS APPOINTMENT HE WOULD BE PRECLUDED FROM RECEIVING COMPENSATION UNDER SUCH APPOINTMENT FOR THE SAME REASONS THAT REQUIRED THE CONCLUSION IN THE DECISION OF JULY 16 THAT JUDGE HARPER COULD NOT BE PAID UNDER HIS SUBSEQUENT RECESS APPOINTMENT. THE ANSWER HERE IS THAT NEW RECESS APPOINTMENTS ARE NOT NECESSARY SO LONG AS THE ORIGINAL APPOINTMENT REMAINS VALID UNDER THE PROVISIONS OF THE CONSTITUTION. BUT ONCE A NEW APPOINTMENT IS GIVEN, THE PROHIBITORY LANGUAGE IN CLAUSE (B) OF SECTION 1761, REVISED STATUTES, OPERATES TO PRECLUDE THE PAYMENT OF SALARY TO THE APPOINTEE.