Mandatory Statute.

"Sec. 7. That there be allowed and paid to Jacob Hall, for carrying the mail on route number eight thousand nine hundred and twelve, from Independence to Santa Fé, twentytwo thousand dollars per annum instead of the sum for which he contracted, commencing August eighteen hundred and fifty-five, and ending with his contract, and the same shall be in full for all the losses by him sustained in said service by Indian depredations or otherwise. This grant is made on the condition that the Postmaster General may, at any time, on giving three months' notice, annul the contract of said Hall.

"Sec. 8. That the Postmaster General is hereby authorized to pay to George H. Giddings, contractor for carrying the mail on route number twelve thousand nine hundred, from Santa Fé, New Mexico, to San Antonio, Texas, monthly each way, according to the contract under which said service is now being performed, the sum of thirty-three thousand five hundred dollars for each year's service, commencing with the eighteenth day of August, eighteen hundred and fifty-five, and continue during his contract. Provided, That the Postmaster General be and he is hereby authorized to annul said contract on giving three months' notice to said contractor."

And the question presented is whether the provision in favor of Mr. Giddings is to be construed as mandatory upon you, or whether you may exercise discretion as to the amount to be allowed and paid.

I have the honor to say in reply, that my opinion is that the enactment is not mandatory. It authorizes, it does not command. And it is now well established that where the terms of enactment leave room for any administrative discretion to be exercised, the enactment is not mandatory. (United States v. Guthrie, xvii How. 384.)

In the present case, the distinction between enactments mandatory and enactments permissive or directory only, is well illustrated by the difference of the language employed in the 8th section in respect to Mr. Giddings, and in the 7th in respect to Mr. Hall. In the latter case, the Postmaster General is explicitly required to allow and pay a definite sum of money. In the former, he is merely authorized to pay, but is left to

Mandatory Statutes-Appointing Power.

judge in his discretion whether such payment is compatible or not with the right of the case, and the general interests of the Government.

I am, very respectfully,

Hon. JAMES CAMPBELL,

Postmaster General.

C. CUSHING.

MANDATORY STATUTES-APPOINTING POWER.

A provision of act of Congress, which authorizes the President to reconsider a thing lawfully done under a previous act of Congress, is not mandatory in its legal effect.

Power of appointment under the United States cannot be communicated by act of Congress to persons not named to that end by the Constitution.

ATTORNEY GENERAL'S OFFICE,

August 22, 1856.

SIR: I have, in compliance with your direction of this day, examined the provision of the act of Congress, of the 18th instant, which relates to the purchase of a site for a post office in the city of Baltimore.

It is in the following words: "That the sum of two hundred thousand dollars be, and the same is hereby appropriated, to enable the President to procure and pay for a site for a building for the accommodation of the United States courts in the city of Baltimore, and to erect thereon a fire-proof building for such purpose, on such plan as the President may approve, and the further sum of three hundred thousand dollars, or so much thereof as may be necessary for a post office in the said city; and the President is hereby authorized to reconsider the conditional contract heretofore made by him with the Merchants' Exchange Company, to appoint a Commissioner to whom, together with another Commissioner to be appointed by the Mayor of Baltimore, he shall refer the question of the selection of a site, or site and building, for said post office, and if said Commissioners disagree they shall choose a third, and the said Commissioners shall make their decision and submit the same to the President, for his approval, and if the President approve

Mandatory Statutes-Appointing Power.

their selection, his approval shall be final, and if he disapproves their selection, the whole subject shall be referred by him to Congress, at their next session. Provided, That no part of the money shall be applied for the erection of such buildings till a contract shall be concluded with responsible parties with detailed plans and estimates to erect and complete such building according to such plan and estimates, and to deliver the same to the United States for or within the sum above appropriated, after paying thereout for the land contracted for by the Presi dent, under the authority of law, for the site of such buildings."

To appreciate the effect of this provision, it needs to recur to the previous enactment on the same subject, and to the acts done under it by the Executive.

That enactment, the statute of February 17, 1855, is in these words:

"That the President of the United States be authorized to procure, or cause to be procured, a suitable site or sites for a building or buildings for a court house and post office in the city of Baltimore; and that he prepare and submit to Congress, at as early a day as practicable, plans and estimates for the construction of a building or buildings on such site or sites, together with the estimates for fitting up or furnishing the same for the purposes indicated. And if a building or buildings should be on such site or sites which can be remodelled or changed so as to answer the purposes indicated in the title of this bill, he shall submit to Congress plans and estimates for such alterations, and also estimates for fitting up or furnishing such building or buildings. Provided, That any contract or contracts he may make for any such site or sites shall be conditional, and made subject to the approval of Congress." (x Stat. at Large, p. 610.)

In virtue of the authority conferred by this law, an agreement was entered into by your direction, for the conditional purchase of certain premises belonging to the Merchants' Exchange Company, for a post office: which agreement contains, among others, a condition for its consummation by deed, on the one hand, and by payment on the other, when Congress "shall have approved of the agreement by the

Mandatory Statutes-Appointing Power.

necessary appropriation to carry the same into effect, otherwise the agreement to be null and void." (Ex. Doct. 34th Congr. 1st Ses. Sen. no. 84.)

And the question is, whether the President now has power or not, to proceed to complete the agreement, on consideration of the tenor of the enactment of the present Congress.

This enactment consists of three distinct members, namely: 1. An appropriation of two hundred thousand dollars, for the court house in Baltimore, and of the further sum of three hundred thousand dollars, or so much thereof as may be necessary, for a post office in said city.

2. A proviso, at the close of the section, requiring that no part of the money for erection of the post office building shall be expended until a contract shall have been made for the erection and completion of the same within the balance of the appropriation after deducting the cost of the land.

3. A substantive enactment in words, which, being specially material, it is not amiss to requote, as follows:

"And the President is hereby authorized to reconsider the conditional contract heretofore made by him with the Merchants' Exchange Company, to appoint a Commissioner, to whom, together with another Commissioner to be appointed by the Mayor of Baltimore, he shall refer the question of the selec tion of a site, or site and building for said post office, and if said Commissioners disagree, they shall choose a third, and the said Commissioners shall make their decision and submit the same to the President for his approval, and if the President approve their selection, his approval shall be final, and if he disapproves their selection, the whole subject shall be referred by him to Congress at their next session.'

Here, first, the President is "authorized" to do certain things. That is language permissive, not language mandatory, such as continually occurs in the statutes, leaving the performance of the acts, in reference to which the language is employed, at the administrative discretion of the President.

Secondly, he is authorized "to reconsider the conditional contract, heretofore made by him with the Merchants' Exchange Company."

Mandatory Statutes-Appointing Power.

This enactment calls for an observation, which is, that either the President had already full power to reconsider the contract, or he had not: if he had, the enactment does not add to his powers; if he had not, the enactment cannot confer it.

Hence, this clause of the act is not to be considered in the sense, either of the communication of original power, or of the augmentation of power. It does not enable, and the only question is, whether it disables, that is, whether it is tantamount to the rejection of the contract by Congress.

I think it is not-Congress, by the initiatory provision of the enactment, had appropriated the money for the completion of the contract, which appropriation, if standing alone, would have been the "approval" spoken of in the preliminary act. This approval is coupled with authority to the President to reconsider. Such authority is, at most, a condition annexed to approval. And the condition is of a thing which the President may or not do in his discretion. He executes the condition by exercising his discretion in the premises, either to reconsider or not to reconsider. Though he refuse to reconsider, still he complies with the condition, it is executed, and it ceases to be an operative condition of the approval of Congress.

Finally, if he reconsiders, it is to a proposed end. What is that end? Why, in that case, he is further "authorized," according to the terms of the law, "to appoint a Commissioner, to whom, together with another Commissioner to be appointed by the Mayor of Baltimore, he shall refer the question of the selection of a site or sites, and building for said post office, and if said Commissioners disagree, they shall choose a third, and the said Commissioners shall submit the same to the President for his approval or disapproval," and in the latter contingency for new reference to Congress.

Is the thing which the President is thus by the terms of the law "authorized" to do, a thing which is legally possible to be done? I can conceive the possibility of a provision of law by which a controversy between the Government and the city of Baltimore shall be submitted to two arbitrators, one to be appointed by each party, and in case of disagreement, they to select an umpire. But here is no controversy between the