IN Blll MARBH.l.LSHIP FOB THE SOUTHERN, ETC., DISTS. OF ALABAMA.
379
ute before the tax-payer can be charged with the penalty of 5 per centum, an<].1 per centum interest. This notice iil also necessary before the collector can distrain for the taxes. 8ee U. S. v. Halloran, 14 Blatch£. 1; Savings Bank v. U. S. 19 Wall. 234; Olinkinbeard v. r;. S. 21 Wall. 65; Cooley, Tax'n, 303. The obligation of the bond is that the distiller will, "in all respects, faithfully comply with all the provisions of law in relation to the duties and business of distillers of brandy from apples," etc., and tile 1aw requires the distiller shall make at least 80 per cent. of the sur· veyed capacity of the distillery, and pay tax thereon. The distiller is liable for this tax when assessed against him by the commissioner of internal revenue, although he is not liable for the penalty, nor his property to be distrained for the tax, until the law as to notice is com· plied with. The original lists, which were signed by the commissioner of internal revenue and by the collector, and which were records in the collector's office, were good evidence, if not the best, of the assessment. The survey of the distillery which was kept in the collector's office, and the certificate of the collector that a copy had been delivered to distiller, were, I still think, competent evidence. Motion for new trial overruled.
In re
MARSHALSRIP FOR THE SOUTHERN AND MIDDLE DISTRICTS OF ALABAMA.
(District Court, .J!. D. Alabama. 1.
February, 1884.)
NOMmATION FOR OFFICE BY TRE PRESIDENT-REJECTION BY TRlll SENATE COKCLUSIVE-REV. ST. 1768.
Where the senate of the United States rejects the nomination of a person for an office made by the president its action is conclusive. Rev. St. 1768.
2.
PnESIDENT OF THE UNtl'ED STATES-POWER TO SUSPEND OFFICERS AND TO MAKE TEMPORARY ApPOINTMENTl:l.-BEV. ST. § 1768.
1768, authorizes the president to suspend an officer, and to make a appointment to fill the vacancy thus created until the end of the next session of the senate.
Rev. St.
3.
PERIOD 01<' TEMPORAllY ApPOINTMENT 'By PRESIDENT OF UNITED STATES TO FILL VACANCY IN WHEN VACANCY OCCUItS THROUGH SUSPENSION OF OFFICER.
A comllllssion issued hy the president of the United States to fill a vacallCy in an office, during a recess of the senate, continues until the end of the next scsllion (;f unless sooner determined by the president, even though the person commissioned shall have been in the meau time nominated to the office, and his rejected by th<l senate; and this rule applies }Vhere the vacancy occurs through the sllspension of an officer.
4.
TEMPORARY ApPOINTMBN'fllY PRESIDENT OF 'fH!!: mUTED OF REFUSAL OF SENATE TO CONFJR;M 'fEMFORARY ,ApPOINTEE FOR PERMANENT Appom1'MEN1'-EFFECT OF BE!'USAL ON SUSPENDED OFFICER.
The temporary appointment of a person to an office by the prcsident of the United 8tates is not terminated by the refusal of the senate to confirm him fur the permanent appointment, and the powers of a suspended officer whose position he occupies are not revived by such refu3al.
880 REASON PRESUMED.
FEDERAL REPORTER.
5. SUSPENSION OF OFFICER BY PRESIDENT OF THE UNITED BTATES-SUl"FICIENT
When the president of the United States suspends a. person from office, his reasons will be presnmed to be sufficient.
Heard on Motion of Mathias C. Osborn, former marshal, to be rec· ognized and held by the court as now entitled to resume the duties of that office. Saml. F. Rice, for motion. OeD. Turner and OeD. H. Patrick, contra. BRUCE, J. Mathias C. Osborn was nominated by the then presi. dent of the United f:>tates to the senate for the office of marshal of the Middle and Southern districts of Alabama, and was confirmed by the senate in the year 1880. He qualified by taking the oath and giving the bend, as required by law, and continued to hold and exercise the duties of the office of United States marshal for the Middle and Southern districts of Alabama until the seventeenth day of March, 1883, when he was suspended from the office by the order of the president of the United States, and Paul Strobach was designated to perform the duties of the office in the mean time. Paul Strobach qualified by giving the bond and taking the oath of office required by law, and entered upon the discharge of the duties of the office, and has continued to discharge the duties of the office from that date until the present time. The suspension of Osborn, and the designation of Strobach to perform the duties of the office, occurred during the recess of the senate; and the suspension of Osborn wason terms until the end of the next session of the senate, and the designation of Paul Strohach was to perform the duties of the office in the mean time, subject to all the provisions of law applicable thereto. The president of the United States, within 30 days after the commencement of the present session of the senate, in December last, nominated Paul Strobach to the senate for the marshalship, in the place of the suspended officer, Osborn; and on the fifth day of the present month of February, 1884, the senate rejected the nomination of Paul Strobach for the office to which the president had nominated him to the senate. That this rejection is conclusive against Mr. Strobach for the office of marshal, under what may be called a per. manent appointment, meaning by that a nomination by the president and confirmation by the senate, is quite clear, because the statute provides (section 1768) that "if the senate, during such session, shall refuse to advise and consent to an appointment in the place of any officer, then, and not otherwise, the president shall nominate another person, as soon as practicable, to the same session of the senate for the office." But the question is, what effect has this rejection. of the senate of the nomination of Paul Strobach to the office of marshal, at and during the present session of the senate, upon what may be called his temporary appointment, or his designation by the president to perform the duties of the office during the suspension
IN BE MARSHALSHIP FOR THE SOUTHERN, ETO., DISTS. OF ALABAMA.
381
of Marshal Osborn? The president's power to suspend is not questioned, and his power to make what is called a temporary appointment is not questioned. The first clause of section 1768 of the Revised Statutes provides: "During any recess of the senate, the president is authorized, in his discretion, to suspend any civil officer, appointed by and with the advice and consent of the senate, * * * until the end of the next session of the senate, and to designate some suitable person * * * to perform the duties of such suspended officer in the mean time. lie * *"
The statute then authorizes the president to suspend and make a temporary appointment until the end of the next session of the senate, and he has done so, Mr. Strobach being that appointee, and he holds the office now under such appointment. The senate has not acted upon that temporary appointment, nor does it appear that the senate has any power or authority, under existing law, to act directly upon such temporary appointment or designation. True, if the president nominates, and the senate confirms the nomination, then the person so nominated and confirmed to the office could qualify, take the office, and so cut short the term of the temporary appointee, and Mr. Strobach could not hold the office against such appointee. But Mr. Osborn does not stand in that position to the office, for, thongh he has been nominated and confirmed to the office, yet he has also. since then and during a recess of the senate, been suspended by the president of the United States from the office of marshal until the end of the present session of the senate, and, in doing so, the president was acting clearly within the authority conferred upon him by law. This power given by law to the president was, no doubt, given for good reasons. It will occur to anyone, on a moment's reflection, that the good of the public service might very often render it imper. ative that the president shonld have and exercise such power; and, under existing law, the senate, when it convenes, has no more power or authority to act upon the president's order suspending an officer under section 1767, than it had to act upon the designation of the person by the president to perform the duties of the office in the mean time. The idea that seems to underlie the argument of counsel for the motion is that when the president suspends an officer and makes a temporary appointment in thl'! recess of the senate,. then, upon the meeting of the senate, it must act upon such suspension and temporary appointment; and if the senate declines concurrence in such suspension and appointment, then the suspended officer forth with resumes the functions of the office, and the temporary appointment is at once terminated. That is an error, perhaps a popular one, and may grow out of the fact that such was the provision of the first tenure of office act of congress, approved March 2, 11;67. But that act was materially modified and changed by a subsequent act of
882·'
FEDERAL REPORTEB.
congress, approved April 5, 1869, which is the law as we now have it in sections 1767-1769 of the Revised Statutes of the United States. An examination of the act of April 5,1869, shows that the clauses restrictive of the president's power, in the act of March, 1867, were omitted from the later act, which does not provide that the president, when he suspends an officer and designates some suitable person to perform temporarily the duties of such office, that it shall be until the neJ.:t meeting of the senate, and until the case shall be voted on by the senate, but the language js, until the end of the next session of the senate; nor does the ptesent act require the president, within 20 days after the first day of the meeting of the senate, to report to the ,senate suoh suspension, with the evidence and reasons for his action in the case; nor is it provided in the present law that if the senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing the duties in his stead shall cease. These clauses restrictive of the president's power, found in the first tenure of office act, were repealed bythe later act and are not now the law; and the original act was passed, and subsequently modified and changed, for reasons familiar to those who were actors in, or are students of the history of, that time. These acts to which reference has just been made are of comparatively recent date, and there is, perhaps, but little judicial authority upon their construction; but a number of authorities have been cited upon the power of the president under article 2 of section 2 of the constitution of the United States, which provides that "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." Section 1769 of the Revised Statutes of the United States provides: "The president is authorized to fill all vacancies which may happen during the recess of the senate, by reason of death or resignation or expiration of term of office, by granting commissions which shall expire at the end of their next session thereafter. '" · ." The language used in the constitution and in section 1769, in reference to the power of the president to fill vacancies, is very much the same language used in the act under consideration, authorizing the president to make temporary appointments in cases of suspended officers. The authorities on this subject-that is, the nature and duration of a temporary appointment made by the president to till a vacancy-are that a commission issued by the president during a recess of the senate continues until the end of the next session of congress, unless sooner determined by the president, even though the person commissioned shall have been in the moan nominated by the president to the office and his nomination rejected. U. S. v. Kirkpatrick, 9 Wheat. 721; Case of Isaac Hill, 2 Op. Attys. Gen. 336; Gilpin y. O'Neil, 8 Int. Rev. Ree. 137; TJ:x parte Hennen, 13 Pet. 230.
IN RE MARSHALSHIP FOR THE SOUTHERN, ETC., DISTS. Oll' ALABAMA.
883
It is said this is not a vacancy, and it is true that it is not a vacancy in the absolute sense,such as results from the death, resignation, or expiration of term of office of the incumbent of the office, as contemplated by section 1769 of the Revised Statutes. In a case of the suspension of an officer there are contingencies upon the happening of which the suspended officer may resume the duties of the office; that is, where the senate fails or refuses consent and advice to the nominations for office made by the president, and if this failure or refusal continues until the end of the session, and the former incumbent's time has not then expired, he will then, and not till then, resume the duties of the office. Whether it be a vacancy caused by the death, resignation, or expiration of term of office of the incumbent of the office, or whether it be a suspension of an officer by the president under section 1768, in either case the duration of the temporary appointment is the same; it is to the close of the session of the senate, subject, as we have seen, to a concurrence of opinion and action by the president and the senate, by the nomination and confirmation of a person other than the rejected nominee to the position. Some confusion arises because the same person designated for the temporary appointment was in this case nominated to the senate for the permanent appointment; but suppose the president, after having designated Mr. Strobach for the temporary appointment, had nominated Mr. T. for the permanent appointment, and the senate had rejected Mr. T., just as it has rejected Mr. Strobach, for the permanent appointment, could it be held that the rejection by the senate of Mr. T. for the permanent appointment affected the temporary appointment of Mr. S.? To ask the court to terminate the temporary appointment of Mr. Strobach because the United States senate has rejected him for the permanent appointment, is to ask the court to act without law or logic; and the proposition is not only to do that, but also to terminate the suspension of Mr. Osborn, and authorize him to resume the duties of the office, which is equally without the authority of law. The answer to all that is that the president of the United States has, for reasons which the court will presume to have been suffici susnt, pended Mr. Osborn until the close of the present session of the senate, and has designated Mr. Strobach as a suitable person to perform the duties of the office in the mean time. The Case of Embry, 100 U. S. 680, is relied on by both sides in support of their respective positions. That case is not conclusive here, because the question here was not involved, and barely touched upon in the opinion of the court. The result of these views is that the motion is denied.
·
384
THE OLE OLESON.
(DistrietOourt, E. D. Wisconsin. May 12, 1884.) 1. LIBEL-INTERVENORS-SBAMEN'S WAGES-MARITIME SERVICE.
Where intervenors are mere landsmen, who procure cargoes for a vessel and assist in loadin.f(' them, they do not perform a maritime service, and are not entitled to recover upon a libel for seamen's wages. 'fhe master and part owner of a vessel cannot purchase a cargo on credit and thereby create a maritime lien upon the vessel for the purchase money.
2. MARITIME LmN-PURCHASE OF CARGO BY MASTER OF VESSEL.
SHIP'S HUSBAND-DuTIES AND POWERS.
The duties of a ship's husband are to provide for the sea worthiness of the ship, to take care of her in port, to see that she has on board necessary and proper papers, to make contracts for freiA'ht, and to collect the returns therefor; but he cannot borrow money, give a lien on the freight, make insurance, or purchase a cargo, without special authority.
In Admiralty. ,Zlla'rkham cf Noyes, for intervenors. J. E. Wildish, for mortgagee. DYER, J. Objections are filed to claims made by Bernard Kienast and August Walkowski to a share of the proceeds arising froin the sale of the schooner Ole Oleson upon a libel for seamen's wages. The intervenors were employed as stone-pickers by the master of the vessel, who was also managing owner, to gather stone on the shore of Lake Michigan at or Dtar Alpena, and to assist in loading the stone on board as cargo to be carried to Chicago. While engaged in this service they lived and slept on the vessel as she laid off shore; and the master testifies that when the weather was such that stone could not be gathered, the schooner would run into Alpena, and the intervenors would then lend a hand in hoisting sail. But they did not accompany the vessel on her voyages, and were not employed as seamen, the vessel having a full crew without them. The only question is, was the service which they rendered in picking up stone for the vessel a maritime service, and I am constrained to hold that it was not. Three cases are relied on in support of the alleged right of these claimants to payment from the fund in the registry, namely: The Canton, 1 Spr. Dec. 437; The Ocean Spray, 4 Sawy. 105; and The Minna, 11 FED. REP. 759. These cases are all distinguishable from this. In the case of The Canton, the employment of the libelants was to load the vessel at Quincy with stone, not as quarrymen, but to take the stOlle on board from a wharf, to navigate the vessel to Boston, and there to unload her. As was said by Judge SPRAGUE, they must have been ablt! to "hand-reef and steer," the ordinary test of seamanship. These duties they performed, and so they were not landsmen merely, but a.ctually participated in the navigation of the vessel.
