Page:Federal Reporter, 1st Series, Volume 3.djvu/120

 IN RB FARBOW. 413 �Mr. Farrow aecepted. He qualified under it, and now olaims the oiïïee under it. �The president, on the day of May, 1880, nominated �John S. Bigby to the senate for the office. The senate ad- journed on tue sixteenth day of June, without aoting on this nomination. On the sixth day of July, 1880, during the recess of the senate, the president issued a commission to Mr. Bigby for the office, which he accepted. On the twelfth day of July, 1880, he qualified under this commission, and now claims the office under it. The senate is still in reeess. �The order of Mr. Justice Bradley, appointing Mr. Parrow, and the president's commission to Mr. Bigby, are before the court as parts of this statement, and also their oaths of office. �It -was agreed that the foregping statement should go before the court in lieu of pleadings and evidence, and that the court should thereon decide which of the claimanta was entitled to the office. �Amos T. Akerman, for Henry P. Farrow. �William H. Smith, for John S. Bigby. �Woods, C. J. It is claimed by counsel for Farrow that the appointment by the president of Bigby was, under the facts of the case, beyond his constitutional power, and he cites the third paragraph of section 2, article 2, of the constitution of the United States, which declares: "The president shall have power to fill up ail vacancies that may happen during the recess of the senate, by granting commissions, which shall expire at the end of their next session. " He also relies upon section 1769, U. S. Eevised Statutes, which declares: "The president is authorized to fill ail vacancies which may happen during the recess of the senate, by reason of death or resig- nation or expiration of term of office, granting commissions which shall expire at the end of their next session there- after." The contention is that the vaeancy in the office of district attorney, which the president bas undertaken to fill by the appointment of Bigby, did not happen during the recess of the senate, and therefore the power to fill it does not reside in the president. �On the other hand it is claimed that the phrase "vacancies �v.3,no.3— 8 ����