The constitutional pardoning power of a governor does not apply to penalties for the violation of municipal ordinances, and conse quently a statute authorizing the mayor, with the consent of the aldermen, to remit such penalties, is not invalid as an interfer ence with the pardoning power of the gov ernor; Allen v. McGuire, 100 Miss. 781, 57 South. 217, 38 L. R. A. (N. S.) 196.
The power to make treaties "embraces all sorts of treaties, for peace or war ; for com merce or territory ; for alliances or succors ; for indemnity for injuries or payment of debt; for the recognition and enforcement of principles of public law ; and for any other purposes which the policy or interests of in dependent sovereigns may dictate in their intercourse with each other." 2 Sto. Const. sec. 1508. This power is plenary ; Holmes v. Jennison, 14 Pet. (U. S.) 540, 614, 10 L. Ed. 579; U. S. v. Forty-Three Gallons of Whis key, etc., 93 U. S. 188, 23 L. Ed. 846 ; it in cludes removing the disabilities of aliens to inherit ; 5 Cal. 381; or enabling them to pur chase and hold lands in the United States; Chirac v. Chirac, 2 Wheat. (U. S.) 259, 4 L. Ed. 234.
An important question has frequently aris en as to the effect of this power where legis lation was required to give effect to a treaty.
"In regard to this, any has been averted by the wisdom and forbearance of the house of representatives ;" Miller, Const. U. S. 168. See also id. 181, and au thorities cited ; Porn. Const. L. §§ 676-681; 1 Kent 286; TREATIES.
In the La Abra Mining Case, it was held no interference with the constitutional func tions of the president,. In connection with matters involved in the relations between this country and Mexico, that provision was made by act of congress for a suit in the court of claims to determine whether there had been fraud in obtaining the, award, the amount of which had been paid by Mexico, to the United States for the claimants ; La Abra Silver Min. Co. v. U. S., 175 U. S. 423, 20 Sup. Ct. 168, 44 L. Ed. 223.
The power of appointment includes nomi nation and appointment, and the power to commission is distinct, but when the commis sion is signed and sealed, the legal right of the officer is vested and delivery of the com mission is not essential ; Marbury v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60 ; U. S. v. Le Baron, 19 How. (U. S.) 74, 15 L. Ed. 575. See CONSTITUTION OF THE UNITED STATES. The
nomination is a recommendation in writing ; Marbury v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60 ; 7 Op. Att. Gen. 186 ; and the senate can only affirm or reject ; .3 Op. Att. Gen. 188 ; congress cannot by law designate the person to fill an office ; U. S. v. Ferreira, 13 How. (U. S.) 40, 14 L. Ed. 42.
It was held by Cadwalader, J., in the Case of the District Attorney, 2 Cadw. Cas. 138, 7 Am. L. Reg. (N. S.) 786, Fed. Cas. No. 3,924, that the president cannot make a temporary appointment in a recess, if the senate was in session when or since the vacancy occur red ; but Woods, J., held directly contra in a case also the right to a similar of fice; In re Farrow, 4 Woods 491, 3 Fed. 112, where he cited the opinions of ten attorney generals which are treated as authoritative and declared "to outweigh" the opinion of Judge Cadwalader. The latter, however, dis putes the statement of an unbroken practice or an acquiescence of the senate and con siders the executive opinions to have been based upon erroneous assumptions of both. The two opinions appear to present fully the arguments on each side of the question and no other case has been found except a deci sion that an original recess appointment can not be made to fill an office created at the previous session ; Schenck v. Peay, 1 Dill. 268, Fed. Cas. No. 12,451, where the opinion of Cadwalader, J., is said to dispense with further argument.
Judge Woods cited the opinions of at least' ten attorney-generals, beginning with Wirt and ending with Evarts. Since that time opinions to the same effect have been given by Attorney-General Williams ; 14 Opin. 563 (where he said, "So far as this department is concerned, the question is settled"); Stan berg, 12 Opin. 32 (where the power of the president to make recess appointments to fill vacancies was said to be "without any lim itation as to the time when they first occur red") ; Devens, 15 Opin. 207 ; 16 id. 522 (where alone among these opinions is a ref erence to Judge Cadwalader's decision as the opinion of a single judge of admitted ability, but of a subordinate court and "not of great authority or weight against the opinions cit ed") ; he also, citing Cushing, holds that "may happen" means may happen to exist; quoted by Hoyt ; 26 Opin. 234 ; following Devens, as conclusive, is Brewster, 17 Opin. 530 ; 18 id. 29; and Miller, 19 id. 261.