and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of Departments. Constitution, Art. II, sec. 2, par. 2. The 406 pardon crimes, and the President, having no title to forfeited property, can not restore it, though he may pardon the offense which caused the forfeiture. Property confiscated by judgment to the United States is beyond the reach of executive clemency and is absolutely national property. Knote r. U. S., 10 C. Cls. R., 397, U.Sr. Six Lots of Ground, 1 Woods, 234. Osborn e. U. S., 91 U. S., 474, 477. Pleading. - A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. The pardon may possibly apply to a different person or to a different crime. It may be absolute or conditional. It may be controverted by the prosecutor and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought before the court by plea, motion, or otherwise. Ú. S. e. Wilson, 7 Pet., 150, 161: Ex parte Reno, 66 Mo., 266. The recital of a specific, distinct offense in a pardon by the President, limits its operation to that offense, and such pardon does not embrace any other offense for which separate penalties and punishments are provided. Ex parte Weimer, 8 Biss., C. Ct., 321. The conviction having been of two offenses, and the pardon reciting only one, the pardon operates upon the offense recited. State v. Foley, 15 Nev., 64. › Public office – An office is a public station, or employment, conferred by the ap pointment of Government. The term embraces the ideas of tenure, emolument, and The duties are continuing and permanent, not occasional and transi duties tory, and are defined by rules prescribed by Government and not by contract. A Government office is different from a Government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. US. r. Hartwell, 6 Wall,365, 394; Ü. S. r. Maurice, 2 Brockenbrongh, 103. A publie officer is the meumbent of an office **who exercises continuously, and as a part of the regular and permanent administration of the Government, its public powers, trusts and duties. Sheboygan Co. v. Parker. 3 Wall, 93, 96. Unless a person in the service of the Government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not strictly speaking an officer of the United States. U. S. r. Mouat, 124 U. S., 203, 307 · U. S. r Germaine, 99 U. S.. 508, 510. Appointments to office. Appointments provided for by act of Congress, merely in general terms must be made by and with the advice and consent of the Senate. 6 Opin. Att. Gen.. 1 When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is Complete Congress may provide that certam acts shall be done by the appointee before he shall enter on the possession of the office under the appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed and when the person has performed the required condition his title to enter on the possession of the office is also complete. US. Le Baron, 19 How., 73, 78; U. S. r. Stewart, ibid., 79; Marbury e. Madison, 1 Cranch 137. Powers of officers. All the officers of the Government, from the highest to the lowest, are but agents with delegated powers, and if they act beyond the scope of their delegated powers their acts do not bind the principal U.S. . Maxwell Grant, 21 Fed. Rep., 19. An officer can only bind the Government by acts which come within a just exercise of his official power Hunter e. U. S., 5 Pet., 173, 178 The Floyd Acceptances, 7 Wall. 666; State v. Hastings, 12 Wis., 596. It is a question of law for the court whether an act is a part of the official duty of a public officer. U.S. r. Buchanan, 8 How, 83. Every public officer is required to perform all duties which are strictly official, although they may be required by laws passed after he comes into office, and may be cumulative upon his original duties, and although is compensation therefor be wholly inadequate. In such case he must look to the bounty of Congress for any additional reward. Andrews e. V. S. 2 Story, 202. An officer is bound to use that care and diligence in the discharge of his duties that a conscientions and prudent man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case, and if he fails and neglects to do so he is culpable. U.S. r. Baldridge. 11 Fed. Rep., 552. Presumptions as to official acts. The acts of an officer to whom a public duty is assigned, within the sphere of that duty, are prima facie within his power. U.S. r. Arredondo, 6. Pet., 691; U. S v Clarke, Sibid., 456, 452 - Percheman r. U. S., 7 ibid., 51; Delassus r. C. S.. 9 ibid, 117. 134; Strother r. Lucas, 12 ibid., 410, 438. U. S. v. Peralta, 19 How 343, 347. When a particular functionary is clothed with the duty of deciding a certain question of fact, his decision in the absence of fraud, is conclusive. Logan r. The County. 16 Wall.. 6. He who alleges that an officer intrusted with important duty has violated his instructions must show it. The courts ought to 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. Ibid., par. 3. require very full proof that an officer has transcended his powers before they so determine. U. S. v. Peralta, 19 How., 343, 347; Delassus v. U. S.. 9 Pet.. 117, 134. When a public officer is to do any act on proof of certain facts, of the competency and sufficiency of which he is to judge, it is to be presumed, from the doing of the act, that the proof was regularly and satisfactorily made, and its sufficiency is not subject to reexamination. Phil. and Tren. R. R. Co. v. Stimpson, 14 Pet.. 448. Tenure.-The power to appoint includes the power to remove, when the Constitution has not otherwise provided, and when the laws of Congress have not fixed a tenure of office. Ex parte Hennen, 13 Pet., 230; U. S. v. Avery, Deady, 204. When Congress, by law, vests the appointment of inferior oflicers in the heads of Departments, it may limit and restrict the power of removal as it deems best for the public interests. U.S. v. Perkins, 116 U. S., 483. Resignation That a public office may be vacated by resignation is established by long and familiar practice, and is recognized by express provision of law. Nor can there be any doubt that a resignation may be effected by the concurrence of the officer and the appointing power; its essential elements are an intent to resign on the one side and an acceptance on the other. It may be either in writing or by parol, expressly or by implication. To perfect a resignation nothing more is necessary than that the proper authority manifest in some way its acceptance of the offer to resign. It then becomes effectual, and operates to relieve the incumbent either immediately or on the day specially fixed according to its terms. An offer to resign is revocable prior to acceptance; after acceptance and before it has taken effect it may be modified, or withdrawn by consent of both parties, but this control extends no further. When a resignation once takes effect the official relations of the incumbent are ipso facto dissolved; he has no longer any right to, or hold upon, the office. 14 Opin. Att. Gen., 259. ize chief clerk to sign requi- 24. Transfer of duties to clerks of sitions, etc., in his absence. 9. Vacancies in subordinate offices. 10. Discretionary authority of the President. 11. Commanding General of the lower classes. 25. Salaries of persons employed 26. Temporary clerks. Army, etc., may be desig- 28. Employees, clerks, etc., be nated by President to per yond provisions of law. form duties of Secretary of 29. Extra compensation to clerks War. 12. Temporary appointments limited to ten days. 13. Restriction on temporary appointments. 14. Extra compensation disallowed. 15. Chief clerks to supervise subordinate clerks. 16. Chief clerks to distribute duties, etc. 17. Duty of chief on receipt of re port. 18. Disbursing clerks. 19. Hours of labor in Executive Departments. Leaves of absence. Sick leaves. Extensions. prohibited. 30. Employees to be paid from specific appropriations only. Civil officers not to be detailed for duty in the District of Columbia. 31. Appointments to be apportioned among the States and Territories. 32. Oaths, when administered by officers, etc. 33. No Department officer to charge fees for oath of office to employees. 34. Chief clerks of Executive Departments to administer oath of office free. Application of provisions of this title. Wilcox e. Jackson, 13 Pet., 512, 513. Sec. 158, R. S. 37. Labor Day to be a public holi- 53. Biennial list of persons em cers. 47. Annual report of expenditure 60. Penalty envelopes for inclo of contingent funds. 48. Annual estimates. sure of answers to official communications. 49. Statement of condition of busi- 61. No contracts to be made for 50. Time of making annual re ports. rent of any building in Washington without appropriation therefor, etc. 5. The provisions of this title shall apply to the following Executive Departments: First. The Department of State. Seventh. The Department of the Interior. The word "Department" when used alone in this title, and titles five, six, seven, eight, nine, ten, and eleven, means one of the Executive Departments enumerated in the preceding section.' The titles so numbered in the Revised Statutes are the ones above referred to. Departmental regulations. July 27, 1789, c. 4. v. 1, p. 28; Sept. 6. The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and 15, 1789, c. 14, v. 1, clerks, the distribution and performance of its business, 1849. c. 7. v. 1. p. and the custody, use, and preservation of the records, pa- c. 12, v. 1, p. 65; pers, and property appertaining to it.' p. 68; Aug. 7, 49; Sept. 2, 1789, June 8, 1872. c. 335, v. 17. p. 283; Apr. 30, 1798, c. 35, v. 1, p. 553; June 22, 1870, c. 150, s. 8, v. 16, p. 163; Mar. 3, 1849, c. 108. v. 9, p. 395. The President speaks and acts through the heads of the several Executive Departments in relation to subjects which appertain to their respective duties. Wilcox r. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755. It is the general theory of departmental administration that the heads of the Executive Departments are the executors of the will of the President. 10 Opin. Att. Gen., 527. As a general rule the direction of the President is to be presumed in all instructions and orders issuing from the competent Department. 7 id., 453. Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express reference to the direction of the President. 7 id., 453. The duties of the heads of the several Executive Departments are derived, in part, from the Constitution and are, in part, imposed by statute. In the execution of the former, they act as the representatives of the President, to whom they are responsible for their correct performance. For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory rules and regulations as Congress may see fit to impose. (See Marbury v. Madison, 1 Cr. 137, and par. 1, note 1.) The executive power is vested in a President, and so far as his powers are derived from the Constitution he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power, but it by no means follows that every officer in every branch of that Department is under the exclusive direction of the President. * * * There are certain political duties imposed upon many officers in the executive department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution, and, in such cases, the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the President, and this is emphatically the case where the duty is of a ministerial character. Kendall v. U. S., 12 Pet., 524, 610. Ministerialand discretionary duties. --The duties performed by the heads of the seyeral Executive Departments are either ministerial or discretionary or quasi judicial in character. "The question whether the legality of an act of the head of a Department be examinable in a court of justice or not must always depend on the nature of the act. By the Constitution of the United States the President is invested with certain important political powers in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity to his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control their discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the Executive the decision of the Executive is conclusive. * The conclusion is that where the heads of Departments are the political or confidential agents of the Executive, merely to execute the will of the President, nothing can be more perfectly clear than that their acts are only politically examinable. Marbury e. Madison, 1 C1., 137, 166; Kendall v. U. S., 12 Pet., 524, 611; Decatur r. Paulding, 14 Pet., 497, 515. We are not aware of any case in England or this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable for an error of judg. A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. Kendall e. Stokes, 3 How., 87, 98; Gould r. Hammond, 1 McAll, 235, 243; Noble v. Union River Logging Co., 147 U. S., 165, 171. ment. A ministerial duty, the performance of which may, in proper cases, be required of the head of a Department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. Mississippi r. Johnson, 4 Wall., 475, 498; Marbury r. Madison, 1 Cr., 137; Kendall v. Stockton, 12 Pet., 524. As a mandamus can only be granted because there is no other adequate remedy at law, an action for damages can not be afterwards sustained, for the same cause of action, the two being inconsistent. Kendall v. Stokes, 3 How.. 87, 102. Liability for damages.--The executive officers of the United States are personally liable at law for damages, in the ordinary forms of action, for illegal official, or min |