The Senate, in confirming nominations to office, exercises not a
judicial, but an executive, function, and, if it confirms a
nomination to a place in the Army existing only through the
President's removal of another officer, the legal effect is to
sustain the removal no less where the nomination is taken as
assurance that a vacancy exists than where the Senate investigates
the facts. P.
258 U. S. 298.
Petition for rehearing and motion to remand denied.
On a petition for rehearing and for a remand of the case to the
Court of Claims for a further finding of fact.
See s.c.
257 U. S. 541.
Page 258 U. S. 297
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
Counsel for the appellant object to the presumption we indulge
in our opinion in this case that the Senate must have known of the
dismissal of Wallace when it confirmed the nomination of Lieutenant
Colonel Robert Smith, whose appointment and confirmation filled the
place considered vacant by Wallace's dismissal. They insist that
the absence of knowledge by the Senate of Wallace's removal was
conceded by the government in both the Court of Claims and here.
What the government brief in this Court said was that it did not
appear that the Senate was advised. But appellant's counsel produce
evidence from the record in the Court of Claims upon which they ask
that the case be remanded to the Court of Claims to make a finding
on this point. Let us concede for the sake of the argument, without
deciding, that is properly a matter of evidence
dehors the
record, and of a finding thereon. The chief item of evidence on
which the motion is based is a statement in the record below
that
"[o]n or before February 21, 1918, it was the practice of the
Adjutant General's office to nominate an officer
vice the
particular officer whose promotion or separation from the service
caused the vacancy, and that, after February 21, 1918, the practice
of indicating the specific vacancy was discontinued on the
recommendation of the Executive Clerk of the Senate."
The contention of the defendant on this showing is that the
Senate adopted the practice of confirming appointments to vacancies
made by the President without investigation into the cause of the
vacancies because of the exigencies of war and the great number of
appointments. We do not see that, if such facts were found, it
would alter
Page 258 U. S. 298
our necessary conclusion. The Senate. in confirming nominations,
is not exercising a judicial, but an executive, function. It does
not have to give a hearing or make an investigation before lawful
action, and if it chooses to accept the President's nomination as
assurance that there is a vacancy to which the appointment proposed
can be made, and acts on that assurance, the legal effect of the
confirmation is not affected.
Petition for rehearing and the motion to remand are
denied.