Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/417

 CH. XXXVII.] office? Hitherto this point does not seem to have received any judicial decision, and therefore must be treated as open to controversy. If the decision should be, that in such cases the nomination without notice creates a removal de facto, as well as de jure, it is obvious, that the public, as well as private individuals, may become sufferers by unintentional and innocent violations of law. A collector, for instance, may receive duties, may grant clearances to vessels, and may perform other functions of the office for months after such a nomination, without the slightest suspicion of any want of legal authority. Upon one occasion it was said by the Supreme Court, that when a person appointed to any office (under the United States) 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. From this remark, it would seem to be the opinion of the court, that the office is completely filled in every case of vacancy, as soon as the appointment is complete; independently of the acceptance of the appointee. If so, it would seem to follow, that the removal must, at all events, be complete, as soon as a new appointment is made.

§ 1549. The next clause of the constitution is, "The president shall have power to fill up all vacancies, that may happen during the recess of the senate, by 52