The Congress has no appointing power, beyond the selection of its own officers. It may create an office but not designate the one to fill it Congress, by acts passed in 1823, 1834, and 1849, directed the judge of the territorial court of Florida and the judge of the district court for the northern district of Florida to act as commissioners for the adjudication of claims arising under the Treaty of 1819 with Spain. This act was held unconstitutional in United States v. Ferreira6 upon the ground that it attempted to impose the performance of administrative duties upon judicial officers, but the opinion further continues:

"A question might arise whether commissioners appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws. And, if they are to be regarded as officers, holding offices under the government, the power of appointment is in the President, by and with the advice and con-sent of the Senate; and Congress could not, by law, designate the persons to fill these offices. And if this be the construction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, everything that has been done under the Acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made, might be recovered back by the United States."

6 13 How. 40; 14 L. ed. 42.

However, in a case where Congress had provided for a park commission and had provided that two of its members should be existing officers of the United States, the court said:

"It is pointed to as invalidating the act that while Congress may create an office, it cannot appoint the officer. As, however, the two persons whose eligibility it questioned were at the time of the passage of the act and of their action under it, already officers of the United States who had been heretofore appointed by the President and confirmed by the Senate, we do not think that because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted and it has frequently been the case, that Congress may increase the power and duty of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." 7

It has been held that Congress may authorize a particular person or official to perform a specific act, though it may not create an "office" for that person, in the sense that he is made an officer of the United States or entitled to any emolument or profit.8

Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 270.

8 See Kentucky v. Dennison (24 How. 66; 16 L. ed. 717), in which it was declared that Congress might authorize, though it could not compel, state officers to perform certain duties with reference to the interstate extradition of fugitives from justice.