Nor can a governor appoint a senator to fill a vacancy which occurred during a pre vious recess, a session of the senate having intervened. This was determined' in the Cas es of Johns, Williams and Phelps (1 Cont. El. Cas. 874 ; 2 id. 612 and 613), all of which were cited by Judge Cadwaiader as pertinent by reason of the use in both sections of the constitution of the words "may happen" which he interprets as meaning occur and not exist; and no vacancy can occur in an office until it has once been filled ; Ex parte Dodd, 11 Ark. 152 ; contra, State v. Irwin, 5 Nev. 111, where it was held that when a new office is created and no person appointed to fill it, there is a vacancy, and this was the view taken by Attorney-General Miller, who said that a vacancy means that an office ex ists of which there is no incumbent ; 19 Opin. 261.
With respect to state offices it has also been held that a governor cannot make a recess appointment unless the vacancy occurred since the adjournment of the general as sembly ; People v. Forquer, 1 Breese (Ill.) 104 ; but where the sittings of the senate are terminated by a long adjournment, it is not "in session," and an appointment by the gov ernor during such adjournment is valid ; Peo ple v. Fancher, 50 N. Y. 288. Atty. Gen. Knox, however, decided that the president cannot make a recess appointment in a holi day adjournment, and that a recess means the period after the final adjournment of congress ; 23 Opin.. 599.
Whether a newly created office, not before filled, is a vacancy, within the constitutional power of the president to make temporary ap pointments, is a question upon which courts and attorneys-general have differed. The most reasonable concluSion and that best sup ported by authority seems to be that it is not ; Cooley, Const. Law 104, n. 5; Ordronaux, Const. Leg. 107 ; and it is said that if the senate is in session when offices are created by law and no appointment is made, no va cancy exists in such sense that the president can appoint during the recess ; id.; 2 Sto. Const. § 1559 ; Case of District Attorney of United States, 7 Am. L. Reg. (N. S.) 786, Fed. Cas. No. 3,924 ; In, re Flute*, 3 Fed. 11.2.
Strictly speaking, an appointment to of fice is an executive act ; Taylor v. Com., 3 J. J. Marsh. (Ky.) 404; 2 Goodn. Comp. Adm. L. 22; but in many cases it has been held that ft"may be exercised by the legislative power, and this in the absence of negative constitutional limitation is held valid ; id.;
Cooley, Const. Lim. 115, n.; Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572 ; People v. Mahoney, 13 Mich. 481; Peo ple v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103 ; Bridges v. Shallcross, 6 W. Va. 562 ; contra, State v. Denny, 118 Ind. 449,21 N. E. 274, 4 L. R. A. 65 ; City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93 ; State v. Kennon, 7 Ohio St. 546; State v. Covington, 29 Ohio St.' 102.
See, generally, as to the president's power of appointment and removal, 2 Sto. Const. §§ 1545:4553 ; Rawle, Const. 166 ; Sergeant, Const. ch. 29 ; Miller, Const. U. S. 156; Pom. L. §§ 642-651.
Among the executive powers of first im portance vested in the president is the mai:it agement of foreign affairs, hiduding the treaty power, to be exercised with the con sent of the senate, and the power to appoint iiiiVreceite foreign ministers, both of which are; expressed in the constitution.
question much discussed prior to the war with Spain is whether the recognition of a foreign revolutionary government is a matter entrusted, under the constitution, to the dis cretion of the president acting alone, or whether it is vested in congress, or requires the joint action of 'both of the political de partments of the government. It has been .contended on the one hand that this power "rests exclusively with the executive," and that, "a resolution on the subject by the senate or by the house, by both bodies or by one, whether concur rent or joint, is inoperative as legislation, and is important only ae advice of great weight voluntar ily tendered to the executive regarding the man ner in which he shall exercise his constitutional functions." Such is the view said to have been express ed by Secretary Olney in a public statement, which, although not an official document, was generally accepted as a fit expression of the opinion of those who take the extreme view of the prerogative of the executive on this subject. 'The occasion of this utterance was a unanimous report of the Committee on For eign Affairs of the Senate, recommending the passage of a joint resolution, "That the inde pendence of the Republic of Cuba be, and the same is, hereby acknowledged by the United States of America." This precise view was maintained by Sec= retary Seward in an instruction to Minister Dayton, infra.