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sion examines and certifies minors (messengers and apprentices) appointed in the Government Printing Office, and, by regulations, which have the force of law, prescribes minimum requirements with respect to age, education, and physical condition equally as high as those of the statute. Many of the appointees come from distant States. It could not reasonably be intended that, upon arrival here, they shall be reexamined by the Department of School Attendance, sitting thus in review upon the determination of the Civil Service Commission. Altogether the statute seems peculiarly inappropriate of application to the Federal Civil Service.

My opinion, therefore, is that the Act of May 29, 1928, is not applicable to minors employed in the Government Printing Office.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

ELIGIBILITY OF MR. MELLON FOR THE OFFICE OF SECRETARY OF THE TREASURY

The head of an Executive Department, with the exception of the Postmaster General, may legally continue to hold his office after the expiration of the term of the President by whom he was appointed at the pleasure of the President for the time being. Under the statutory provision set forth in Senate Resolution 2, 71st Congress, special session, Mr. Andrew W. Mellon is not disqualified from holding the office of Secretary of the Treasury.

DEPARTMENT OF JUSTICE,

April 18, 1929.

SIR: By letter of March 9, 1929, sent at your direction, your Secretary forwarded to me a copy of Senate Resolution 2 of the special session of the Senate of the Seventy-first Congress, with the request that I give you my opinion on the questions involved. These questions were:

"1. Whether the head of any department of the Government may legally hold office as such after the expiration of the term of the President by whom he was appointed.

"2. Whether in view of the provisions of the laws of the United States Andrew W. Mellon may legally hold the office of Secretary of the Treasury, reference being made to sec

tion 243 of Title 5 of the Code of Laws of the United States," which is set forth in full,

"and to section 63 of Title 26 of the Code of Laws of the United States,"

also set forth in full. These questions will be discussed in order.

I assume that the words "the head of any department of the Government " are intended to refer to the heads of the Executive Departments, which together are commonly called the Cabinet, and shall treat the question on that assumption. I have no doubt whatever that the head of each of these departments, with the exception of the Postmaster General, whose case is governed by a special statute, may continue to hold the office to which he has been appointed, after the expiration of the term of the President by whom he was appointed and as long as the incumbent of the office of President wishes him to serve.

While the President may, at pleasure, remove any executive officer, and while Congress may limit the term for which any executive officer may be appointed (Myers v. United States, 272 U. S. 52, 129), there is no provision in the Constitution which limits the term to which the head of a department may be appointed, nor, except in the case of the Postmaster General, is there at the present time any statute which fixes any limit.

As the statutes creating these offices do not otherwise provide for the making of appointments thereto, Article II, section 2, of the Constitution empowers the President to make the appointments by and with the advice and consent of the Senate. As no term of office is fixed, the commissions may authorize the officer to hold office during the pleasure of the President (1 Op. 212), and this does not mean merely the President who made the appointment, but includes the incumbent of the position at any time thereafter. (2 Op. 410.)

The practical construction given to the commissions issued to heads of Executive Departments seems to have been uniform since 1789 to the effect that a commission does not expire on the death of a President nor at the end of a President's term of office. In 1831 Attorney General Berrien, in

an opinion to the Secretary of the Treasury, discussed this subject at considerable length. (2 Op. 410.) In the course of his opinion he referred to the English common law principle that commissions granted by the King expired on the King's demise, the theory being that the King was the fountain of dignity and honor and that it was his prerogative to issue all commissions. Such a theory, he said, did not apply to our institutions. In this country the President is the appointing power, but it is in the people alone that sovereignty resides. He pointed out that the commissions actually issued have been "during the pleasure of the President for the time being" and said:

"This form of issuing the commission serves to show the practical interpretation of this doctrine, which has prevailed since the foundation of this Government."

He sums up his conclusion as follows (p. 412):

"When an office is held during the pleasure of any designated officer, it is at the pleasure of the officer, and not of the individual; and to determine that office otherwise than by the act of the immediate incumbent, there must be some official act indicative of the will of the officer at whose pleasure it is held. If he ceases his official functions, without having done any act indicative of his will, his appointee must necessarily hold over until a successor is appointed, who is vested with a like discretion."

Historically, it seems to have been generally agreed that upon the death of the President or the expiration of his term no reappointment or new commission was necessary in the case of such officers as the new President wished to retain. There are many instances of such officers holding over under different Presidents, some of which will be mentioned hereafter as illustrations. In the absence of any constitutional or statutory provision to the contrary, and in view of the practical construction, beginning with the foundation of the Government, I can see no ground to support the view that upon the termination of one administration the President is required to submit to the Senate for confirmation the names of those then occupying positions as heads of executive departments whom he wishes to continue in office, except in the case of the Postmaster General. With respect to the latter officer, the Act of June 8, 1872 (ch. 335,

17 Stat. 283), an Act to review, consolidate, and amend the statutes relating to the Post Office Department, contained in section 2 a provision that the term of the office of the Postmaster General should be for and during the term of the President by whom he was appointed "and for one month thereafter unless sooner removed." That provision was carried into section 388 of the Revised Statutes and is now section 361 of Title V of the United States Code. The tenure of the Postmaster General, therefore, is peculiar.

Secretary Mellon's commission by its terms authorizes him to hold office "during the pleasure of the President of the United States for the time being," and this has been the usual form of commissions of this character from the beginning of the Government. It is unnecessary to mention them all, but the following illustrations show the practical construction which has been placed upon the question of duration of tenure of the heads of the executive departments:

Mr. Pickering was commissioned Secretary of State on December 10, 1795, and continued to hold that office until May 12, 1800, without a new commission being issued under President Adams. So, also, Secretary of the Treasury Wolcott, Secretary of War McHenry, Attorney General Lee, and Postmaster General Habersham, commissioned by President Washington in his second term, continued into and through the administration of President John Adams without new commissions.

Mr. Gallatin served as Secretary of the Treasury from January 26, 1802, until February 9, 1814, under one commission. So, also, Mr. Madison served as Secretary of State from March 5, 1801, until March 3, 1809, with but one commission. All the members of President Jackson's Cabinet who were in office when his term expired continued to serve under President Van Buren without new commissions.

Though not strictly within the terms of the question, it may be noted that the members of the Cabinets of Presidents William Henry Harrison, Lincoln, Garfield, and McKinley continued to serve under the succeeding President without new commissions.

It seems too clear to admit of doubt that, with the exception of the Postmaster General, all heads of departments

continue to hold office from the time they are commissioned until death, resignation, or removal ends their tenure.

The second question involves the construction of section 243, Title V, United States Code, which provides:

"No persons appointed to the office of Secretary of the Treasury, or Treasurer, or Register, shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be owner in whole or in part of any sea vessel, or purchase by himself, or another in trust for him, any public lands or other public property, or be concerned in the purchase or disposal of any public securities of any State, or of the United States."

The section contains other provisions not now material, and makes every person who violates its provisions guilty of a high misdemeanor, and, upon conviction, imposes the penalty of removal from office and disqualification for holding thereafter any office under the United States.

The facts with respect to Mr. Mellon's business activities, as explained in the papers submitted to me, show that while he owned stock in a number of corporations, before becoming Secretary of the Treasury he ceased to be an officer or director in any of them, and in none of them does he own a majority of the stock, nor does he give his time or attention to the active conduct of any incorporated business. The question comes down to the single one whether the statute quoted makes it unlawful for the Secretary of the Treasury to be a stockholder in any corporation engaged in trade

or commerce.

Section 243 originated in the Act of September 2, 1789 (ch. 12, sec. 8, 1 Stat. 65, 67), the Act creating the Treasury Department. Though referred to in Ex parte Curtis, 106 U. S. 371, 373 (4 Op. 555, 25 Op. 98), there seems to be no authority which tends to throw a clear light upon the precise meaning and application which it was intended to have. The discussion, if any, which attended its adoption is not reported in the Annals of Congress or in Maclay's Journal.

The papers submitted to me contain an opinion by William S. Morehead, Esq., dated April 2, 1924, given to Secretary Mellon, and also one by Messrs. Faust & Wilson, dated January 25, 1921, given to Senator Knox, and read into the

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