The Arlington Estate. THE ARLINGTON ESTATE. 1. A certificate of sale issued to the United States upon a purchase by them of property under the direct tax act of June 7, 1862, should be signed by the commissioners who constituted the board at the time of the issuing of the certificate. 2. Such certificate should bear date as of the day it is actually signed. ATTORNEY GENERAL'S OFFICE, September 3, 1866. SIR: The estate known as "Arlington," in Virginia, by direction of the President, given under the authority of the act of June 7, 1862, "for the collection of direct taxes in insurrectionary districts," was bid in by the tax commissioners for that State, and struck off to the United States, for Government use. This occurred at an advertised sale of the property on the 11th of January, 1864. It appears that no certificate of sale has ever issued to the United States, and that since the property was stricken off, one of the commissioners then in office has resigned his position on the board, and another person has been appointed in his place. The questions arising in your Department on this state of facts are, 1. Whether the certificates to be issued to the United States should be signed by the members of the present board of commissioners or by those who constituted the board at the time of the sale? 2. Whether the certificate should bear date as of the day of sale, or have the date of its actual issue? 3. What are the essential recitals to be made in the certificate? 1st. It is not very clear that the act requires a certificate to be issued for property bid in for, or stricken off to, the United States at a sale for direct tax. But it is not important to determine that question, since there is no prohibition contained in the statute against the issue of a The Arlington Estate. certificate to the United States as in the case of sale to a private party, and it is, moreover, altogether expedient that the Government should possess written evidence of its title to property acquired under the act. Assuming, therefore, that the United States are entitled to a certificate of sale in the present case, I am of opinion that such certificate should be made by the members of the existing board of commissioners, and not by those who constituted the board at the time of the sale. All the acts authorized or required to be performed by the commissioners are done by them in the character of a board. The members of the board may die, resign, or be removed, and others may take their places; but the board, in contemplation of the law, never ceases to exist so long as it is constituted in conformity with the statute. The authority of the commissioners being exercisable by them in their joint character as a board of commissioners, it follows that when any act is to be performed by them in their official capacity, it must be done by those who are lawfully members of the board at the time the act is to be performed. Those who were members of the board when the sale was made are not members now. Those who are now members of it were not members then. The former cannot perform any official act. Their authority, under the law, terminated when their membership of the board ceased. The only persons, therefore, who can lawfully perform the duties and exercise the authority of the board are those who at this time constitute it. the day 2d. I think that the certificate should be dated as of on which it is actually executed by the commissioners. It is merely the evidence of the title of the purchaser, and does not of itself transfer or convey That passed when the sale was made. the title. 3d. Such facts should be recited in the certificate as show the jurisdiction of the board to make the sale, and the regularity of the proceeding under which the title was acquired by the United States.. The certificate accompanying your letter contains all the President's Power to Fill Vacancies in Recess. recitals that are necessary, but it should be modified in the particulars in which it purports to be made by the members of the board existing at the date of the sale, so as to purport to be given by the present board. The President has full and independent power to fill vacancies in the recess of the Senate without any limitation as to the time when they first occurred. ATTORNEY GENERAL'S OFFICE, August 30, 1866. SIR: I have considered the question which you have submitted for my opinion, that is to say, Whether, in cases where appointments have been made of postmasters in the recess prior to the last session of the Senate, and there was a failure during the session to make a permanent appointment, either by the refusal of the Senate to confirm the nominee, a failure to act on the nomination, or other cause, the President can make another temporary appointment in the present recess. The clause of the Constitution under which this question arises is 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." Upon the facts stated, it does not appear that there was a vacancy until after the session was over. In the sequel, I shall again refer to this position; but as some claim that the vacancy does happen, within the meaning of the President's Power to Fill Vacancies in Recess. Constitution, before the recess, I propose to consider the general question, whether the President can fill up a vacancy in the recess which existed in the prior session. I am not aware of any decision of the Supreme Court that has any direct bearing upon this question. It has, however, frequently been passed upon by my predecessors. Mr. Wirt in 1823, Mr. Taney in 1833, and Mr. Legare in 1841, concur in opinion, that vacancies first occurring during the session of the Senate may be filled by the President in the recess. Mr. Mason, in a short opinion given in 1845, held that vacancies known to exist during the session could not be filled in the recess; but in a more elaborate opinion written in 1846 he expresses general concurrence with his three predecessors. All these concurring opinions give a construction to the meaning of the words, "vacancies that may happen during the recess of the Senate;" and, as I understand them, they agree that these words are not to be confined to vacancies which first occur during the recess, but may apply to vacancies which first occur during the session and continue in the recess. It may be well at this point to bring in review some of the contingencies which may attend a vacancy in the recess which first occurred during the session. 1. It may not become known until the recess; a contingency which often occurs by the death of incumbents at distant points. 2. It may have occurred by the failure of the Senate to act upon a nomination. 3. Or upon a nomination and confirmation, where the party so nominated and confirmed refuses, in the recess, to accept the office. 4. Or by the rejection of the nominee of the President in the last hour of the session. 5. Or by the failure of the President to make a nomination during the session, or after a rejection of his nominee. You will observe that I have not put in this category vol. xii-3 President's Power to Fill Vacancies in Recess. the case stated in your letter, that is to say, where, after an appointment by the President in the recess, and a nomination at the next session, there is a failure of the Senate to confirm the nomination for want of time or any other cause. It is not clear that the vacancy which exists after the adjournment of the Senate can be said to have occurred during the session. The appointment fills the office, and the language of the Constitution is, that "it shall expire at the end of their next session." It was upon this state of facts that Mr. Taney gave his opinion in 1832, and held on this point, that "the vacancy did take place in the recess," and that "the former appointment continued during the session, and there was no vacancy until after they adjourned." As this construction has been much questioned, I do not propose to stop upon it, but prefer to place my opinion on other grounds, independent of the question whether the vacancy first occurred during the session or during the recess. Those who argue for the construction that the vacancy to be filled by the President must first occur in the recess, claim that such a construction arises inevitably by force of the words "all vacancies that may happen during the recess of the Senate." They claim that a vacancy which does not first occur in the recess cannot be said to happen in the recess. It is the point of time when the vacancy begins that they say is to be considered. This is one reading of this section, and so far as the mere letter is concerned, it is perhaps the most obvious. But even if we confine ourselves to this section alone, and to its literal interpretation, there is room for grave doubt. The subject-matter is a vacancy. It implies duration, a condition or state of things which may exist for a period of time. Can it be said that the word happen, when applied to such a subject, is only properly applicable to its beginning? If this word is used in reference to an action or event that takes place at a punctual point of time, it must neces |