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PAPERS OF MIRABEAU BuoNAPARTE LAMAR
No. 1428 1839 Aug. 30, J. WEBB, HOUSTON, [TEXAS], TO M. B. LAMAR, [HOUSTON, TEXASJ 42
Attorney Genis Office Houston, Augt. 30. 1839.
His Excellency
Mirabeau B. Lamar President &c.
Sir, in answer to your inquiry, whether the appointment of a County Surveyor to fill a vacancy occurring during the recess of Congress, devolves upon you as President, or upon the Commissioner of the Genl. Land Office, I have the honor to state, that the act of Congress approved Jany. 23d. 1839,4 3 entitled "An act giv- ing to the President the power to fill vacancies," makes it his duty "to fill all vacancies that may happen during the recess of Congress, in such Offices as are filled by joint vote of both houses of Congress,'' and as the law requires that County Surveyors "shall be elected by both houses of Congress," there can be no doubt that the appointment to fill a vacancy during the recess, devolves upon the President. It is true, that the 35th Sec : of the Act passed Deer. 14. 1837 44 entitled "An Act to reduce into one act, & to amend the several acts relating to the establishment of a General Land Office," prescribes, in the event of a vacancy occurring during the recess of Congress, that the Commissioner of the Genl. Land Office shall fill such vacancy upon the recommendation of the board of Land Commissioners of the County where the vacancy exists, but this section being in conflict with the provisions of the subsequent act of Jany. 23d. 1838,4 5 is as clearly repealed by that Act as though it had been so expressly declared. This opinion is too well fortified by the long and well estab- lished rules for the Construction of Statutes, to require any additional argument from me to sustain it; but if any were necessary, it is amply furnished by the Act of Jany. 26, 1839,4 6 amending the Act of Deer. 14, 1837. By the Act of Deer. 1837 it is provided that the persons composing the board of Land Commissioners in each County shall be elected by a joint vote of both houses of Congress, & the 35. Section before referd to, declares that Vacancies occuring in the board, during the recess, shall be filled by the Commissioner of the Genl. Land Office,. in the same manner that vacancies occuring in the. Office of County Surveyor are directed to be filled. But by the Act of Jany. 26, 1839, the board of Land Commissioners is now composed of the Chief & As- sociate Justices of each County, and if the 35. Sec: of the Act of Deer. 1837 is yet in force, & it is the duty of the Commissioner of the Genl. Land Office to fill all vacancies, as is directed in that section, then it would follow, that if the Office of Chief Ju[sti]ce of a County becomes
"A. D. S. "Printed in Gammel, H. P. N., Laws of Texas, II, 82 . ..Printed in Gammel, ibid., I, 1404. "This date sl10uld be 1839. "Printed in Gammel, ibid., II, 9L
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