Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/414

 418 is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences, from his appointment; not from the transmission, or acceptance of his commission. When a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person, who has declined to accept, and not in the place of the person, who had been previously in office, and had created the original vacancy. It is, therefore, decidedly the opinion of the court, that, when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumstance, which completes his appointment, is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights, which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law, creating the office, gave the officer a right to hold for five years, independent of the executive; the appointment was not revocable but vested in the officer legal rights, which