Page:Federal Reporter, 1st Series, Volume 3.djvu/123

 116 FEDEEAL HEPORTER �hold that the president had constitutional power to make the appointment of Bigby, notwithstanding the fact that the va- cancy filled by his appointment first happened whan the sen- ate was in session. �The point, however, œost strenuously urged in behalf of Farrow is that, the circuit justice having appointed him to fill the vacancy occasioned by the expiration of his own term of office, there was no vacancy to fill, and the president could not, therefore, appoint Bigby to fill a vacancy which did not exist. This claim brings up for consideration the proper construc- tion of section 793, U. S. Eevised Statutes. That section provides: "In case of a vacancy in the office of district attor- ney, or marshal, within any circuit, the circuit justice of such circuit may fill the same, and the person appointed by him shall serve until an appointment is made by the president, and the appointee is duly qualified, and no longer." �The resuit of this claim is that an appointment made by the circuit justice takes away the power of the president to appoint. In other words, that the power conferred by this section is precisely the same, in ail respects, as that conferred on the president by the third clause of section 2, art. 2, of the constitution, and section 1769, U. S. Eevised Statutes, supra. That is to say that congress bas given the president and the circuit justice the power to fill the same office at the same time, and that the appointee holds for the same length of time under the appointment of either; that whether the appointment is to be made by the president or the circuit jus- tice depends on which is swifter to act; that the power to appoint depends on the resuit of a scramble between the president. of the United States and a justice of the supreme •court. Such, it seems to me, could not have been the pur- pose of congress in enacting section 793. A glance at the section shows its object. It was not to enable the circuit justice to oust the power of the president to appoint, but to authorize him to fill the vacancy until the president should act, and no longer. The section expressly declares the term for which the appointee of the circuit justice shall serve, namely, until an appointment is made by the president. As ����