CONSTITUTIONAL LAW-CONCLUSIVENESS OF CONSENT OF SENATE TO PRESIDENTIAL APPOINTMENT

Authors

Abstract

On December 3, 1930, President Hoover submitted to the Senate the name of George Otis Smith as chairman and member of the Federal Power Commission, which Congress had created by an act approved June 23, 1930. On December 20, 1930, the Senate in open executive session voted to advise and consent to Smith's nomination. The president pro tem. announced that the President would be notified, and there was no objection. On the same day it was ordered that all resolutions of confirmation that day passed be forwarded "forthwith" to the President. The secretary of the Senate formally notified the President of the Senate's action on Monday, December 22, 1930, and Smith received a signed commission and entered on his duties that same day. On January 5, 1931, the next day of actual executive session of the Senate, a Senator who had voted in the affirmative on the question of Smith's appointment moved to reconsider the vote and to request the President to return the resolution of confirmation. Both motions having prevailed in a vote held on January 9, the President was furnished a copy of the resolution requesting the return of the resolution of December 20. He answered under date of January 10, refusing to return the resolution of confirmation on the ground that the appointment of Smith was constitutionally made, and that reconsideration by the Senate would be ineffective to disturb Smith in his office. On the same day, however, the Senate voted favorably on a motion to put the question of confirmation of Smith on its calendar. After reference to a committee, the Senate voted February 4, 1931, to refuse its advice and consent to the appointment, and the President was notified of this last action on February 7, 1931, two days of actual executive session having transpired. At the request of the Senate, the district attorney for the District of Columbia instituted the present quo warranto proceedings to test Smith's right to the office he was assuming to occupy. The trial court denied the petition for a writ. On appeal to the court of appeals of the District of Columbia, the case was certified to the Supreme Court which held that the petition for a writ of quo warranto was properly denied.

Recommended Citation

CONSTITUTIONAL LAW-CONCLUSIVENESS OF CONSENT OF SENATE TO PRESIDENTIAL APPOINTMENT, 31 Mich. L. Rev. 77 (1932).
Available at: https://repository.law.umich.edu/mlr/vol31/iss1/8