People ex rel. Attorney General v. Turner

Norton, J. delivered the opinion of the Court—Cope, J. concurring. [145]The question presented in this case is, whether the defendant was ineligible to the office of District Judge of this State by force of section twenty-one, article four, of the Constitution, which provides that no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State. At the time of his election, the defendant “ held and discharged the duties of the office of Inspector of the Customs of the United States at Trinidad, in Klamath counly, under and by virtue of the appointment of the Collector of the Port of San Francisco, at a salary of three dollars and seventy-five cents per day, payable monthly.” It is not claimed that this appointment was ever approved by the Secretary of the Treasury. By section two, article four, of the Constitution of the United States, the President, with the consent of the Senate, is empowered to appoint all officers whose appointment is not otherwise provided for; “ but the Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the Com-is of law, or in the heads of Departments.” By section twenty-one of the Act of Congress of March 2d, 1799, it is provided that the Collector “ shall, with the approbation of the principal officer of the Treasury Department, employ proper persons as Weighers, Gaugers, Measurers and Inspectors at the several ports within his district.” Attorney General Wirt, in 1821, gave his opinion to the President, that by the true construction of this law “ the names of the individuals proposed to be appointed shall be submitted (by the Collector) to him, (the Secretary of the Treasury) and that no one shall be appointed who shall not be approved by him.” Attorney General Legare, in an opinion given to the Secretary of the Treasury in 1843, referring to the above opinion of Mr. Wirt-, says: “ This, I have no doubt, is true, and indeed the only possible construction under the Constitution. Congress has power to vest the appointment of these inferior officers in the heads of Departments. It has no power to vest it in Collectors.” In the same opinion Mr. Legare says: “All permanent Inspectors are officers of the Government of the United States, not mere occasional deputies, employes or agents of the Collector,” and “ it is plain (under the Act of 1799) that the Collectors of the Customs [146]