to authorize the head of any other Executive Department, or other officer in either of said Departments whose appointment is vested in the President, at his discretion, to perform the duties of the said respective offices until a successor be appointed or until such absence or inability by sickness shall cease:  Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months.

This law, with some modifications, reenacts the act of 1792, and provides, as did that act, for the sort of vacancies so to be filled; but, like the act of 1792, it makes no provision for a vacancy occasioned by removal.  It has reference altogether to vacancies arising from other causes.

According to my construction of the act of 1863, while it impliedly repeals the act of 1792 regulating the vacancies therein described, it has no bearing whatever upon so much of the act of 1795 as applies to a vacancy caused by removal.  The act of 1795 therefore furnishes the rule for a vacancy occasioned by removal—­one of the vacancies expressly referred to in the act of the 7th of August, 1789, creating the Department of War.  Certainly there is no express repeal by the act of 1863 of the act of 1795.  The repeal, if there is any, is by implication, and can only be admitted so far as there is a clear inconsistency between the two acts.  The act of 1795 is inconsistent with that of 1863 as to a vacancy occasioned by death, resignation, absence, or sickness, but not at all inconsistent as to a vacancy caused by removal.

It is assuredly proper that the President should have the same power to fill temporarily a vacancy occasioned by removal as he has to supply a place made vacant by death or the expiration of a term.  If, for instance, the incumbent of an office should be found to be wholly unfit to exercise its functions, and the public service should require his immediate expulsion, a remedy should exist and be at once applied, and time be allowed the President to select and appoint a successor, as is permitted him in case of a vacancy caused by death or the termination of an official term.

The necessity, therefore, for an ad interim appointment is just as great, and, indeed, may be greater in cases of removal than in any others.  Before it be held, therefore, that the power given by the act of 1795 in cases of removal is abrogated by succeeding legislation an express repeal ought to appear.  So wholesome a power should certainly not be taken away by loose implication.

It may be, however, that in this, as in other cases of implied repeal, doubts may arise.  It is confessedly one of the most subtle and debatable questions which arise in the construction of statutes.  If upon such a question I have fallen into an erroneous construction, I submit whether it should be characterized as a violation of official duty and of law.