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publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and State where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated, as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of the notice of sale herein provided for to be made in such other papers as may seem proper. [27 Stat. L. 751.]
“For at least four weeks means four in any case may insist upon or waive." weeks of seven days each, and a publication Nevada Nickel Syndicate v. National Nickel of a notice of sale once a week for only Co., (1900) 103 l'ed. Rep. 399. twenty-seven days before the day of sale is not Provisions of state statute. Where there a previous publication of such a notice was a newspaper printed in the county in
once a week for at least four week's prior to which the property was situated, and the nosuch sale' as required by" this statute, and tice was published in that newspaper, in comby the decree of the court. Wilson v. North pliance with the provisions of the state statwestern Mut. L. Ins. Co., (C. C. A. 1894) 65 ute and this section, it is sufficient though the Fed. Rep. 38.
notice of the sale of the property was not Debtor may waive statutory requirements. posted on the door of the court-house and in
* The provision of the statute of the five other public places, as directed by the l'nited States requiring that in all cases four state statute in the case of execution sales of weeks' notice should be given of the time of property situated in the counties in which no sale was intended for the benefit and protec newspaper is printed. Elgutter v. Northtion of the judgment debtor, and created a western Mut. L. Ins. Co., (C. C. A. 1898) 86 privilege and right which the judgment debtor Fed. Rep. 500.
Claims Referred by, see CLAIMS.
INGS, AND GROUNDS.
Sec. 158. [Application of provisions of this Title.] The provisions of this Title shall apply to the following Executive Departments :
First. The Department of State.
Seventh. The Department of the Interior. [R. S.] “This title” above mentioned comprises provision was made for the appointment of R, S. secs. 158–198.
an attorney-general, and by another Act of The department of agriculture was estab the same session (Sept. 22, 1789, 1 Stat. L. lished as an executive department by the Act 70) a postmaster-general was temporarily of Feb. 9, 1889, ch, 122, given under the title appointed, but not to be in the same high AGRICULTURE, vol. 1, p. 8. By that Act this official relation to the government as that section is amended to include such depart officer occupies at the present time. Such ment." See (1892) 20 Op. Atty.-Gen. 395. was the original basis of the executive organ
The department of commerce and labor was ization of the government. The secretary of established as an executive department by the state for political and foreign affairs, the Act of Feb. 14, 1903, ch, 552, and the above secretary of war for military and naval matsection is amended to include such depart ters, the secretary of the treasury for those ment. See Appendix.
of finance, and the attorney-general for judiExposition of the constitution of the ex cial and legal affairs - these were the immeecutive departments of the United States. diate superior ministerial officers of the The Constitution does not specify the President, as well as his constitutional counsubordinate, ministerial, or administrative selors during the whole period of the adminfunctionaries, by whose agency or counsels istration of the first President of the United the details of the public business are trans States. (1854) 6 Op. Atty.-Gen. 326. acted. It recognizes the existence of such Threefold relation of executive departofficial agents and advisers, but leaves the ment. — The attorney-general, in number and the organization of those de munication addressed to the President in partments to be determined by Congress. In 1854, in defining the relations of the executhe exercise of this duty, the constitutional tive department, declared that “heads of Congress proceeded at an early day of its departments have a threefold relation, namely: first session (July 27, 1789, 1 Stat. L. 28, Ist, to the President, whose political or conch. 4) to establish the “department of foreign fidential ministers they are, to execute his affairs," with “a principal officer therein," will, or rather to act in his name and by his to be called the secretary for the department constitutional authority, in cases in which of foreign affairs. This Act was the com the President possesses a constitutional or mencement of the organization of executive legal discretion; 2d, to the law, for where the departments under the Constitution. On Sept. law has directed them to perform certain 15, 1789, by Act of Congress (1 Stat. L. 68, acts, and where the rights of individuals are ch. 14, sec. 1), the department denominated dependent on those acts, then in such cases the “department of foreign affairs ” a head of department is an officer of the law, changed to that of the “department of state.'' and amenable to the laws for his conduct; and Next after establishing the department of 3d, to Congress, in the conditions contemforeign affairs and at the same session (Aug. plated by the Constitution. This latter rela7, 1789, 1 Stat. L. 49, ch. 7), Congress estab tion, that of the departments to Congress, is lished the “department of war,” with its chief one of the great elements of responsibility officer therein to be called the secretary for and legality in their action. They are crethe department of war. Following, at the same ated by law; most of their duties are presession, came a department of treasury scribed by law; Congress may at all times (not the treasury), the head of this depart call on them for information or explanation ment, however, being called the secretary of in matters of official duty, and it may, if it the treasury. At the same session (Sept. see fit, interpose by legislation concerning 24, 1789, 1 Stat. L. 73) followed “An Act to them, when required by the interests of the establish the judicial courts of the United Government." (1854) 6 Op. Atty.-Gen. 326. States," wherein, by section 35. of said Act,
Sec. 159. [Word “ Department.”] The word “ Department” when used alone in this Title, and Titles five, si::, seven, eight, nine, ten, and eleven, meang one of the Executive Departments enumerated in the preceding section. [R. S.]
Sec. 160. [Salaries of heads of Departments.] Each head of a Department is entitled to a salary of ten thousand dollars a year, to be paid monthly. [R. S.]
Act of March 3, 1873, ch. 226, 17 Stat. L. under title CONGRESS, vol. 2, p. 216), the 486.
salary of each head of a department is reSalaries reduced to eight thousand dollars. duced to eight thousand dollars. – By the Act of Jan. 20, 1874, ch. 11 (given
Sec. 161. [Departmental regulations.] The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. [R. S.]
Act of July 27, 1789, ch. 4, 1 Stat. L. 28; the regulations not inconsistent with law" Act of Sept. 15, 1789, ch. 14, 1 Stat. L. 68; and promulgated by heads of departments, to Act of Aug. 7, 1789, ch. 7, 1 Stat. L. 49; Act promote efficiency and integrity in the disof Sept. 2, 1789, ch. 12, 1 Stat. L. 65; Act of charge of official duties, and to maintain June 8, 1872, ch. 335, 17 Stat. L. 283; Act of proper discipline in the public service. April 30, 1798, ch. 35, 1 Stat. L. 553; Act Clearly, such a purpose is within the just of June 22, 1870, ch. 150, 16 Stat. L. 163; scope of legislative power. Ex P. Curtis, Act of March 3, 1849, ch. 108, 9 Stat. L. 395. (1882) 106 U. S. 373.
Regulations made for the government of Departmental regulations cannot alter laws the department only. - This section, while as enacted. — Regulations promulgated by the giving authority to the heads of departments heads of executive departments, while they to prescribe regulations, explicitly provides have the force and effect of a statute if not that they must not be inconsistent with law. inconsistent with law, may not be extended No authority is created by the statute which so as to alter or amend a law already enacted enables the heads of departments to make by Congress. “ The secretary of the treasury rules for the conduct of persons not con cannot, by his regulations, alter or amend a nected with the departments, but such regu revenue law. All he can do is to regulate the lations, when made, are exclusively for the mode of proceeding to carry into effect what government of the department, and the con Congress has enacted.” Morrill V. Jones, duct of its officers, and the preservation of (1882) 106 U. S. 466. the papers and property belonging to the Regulations cannot prescribe criminal ofdepartment. (1883) 17 Op. Atty.-Gen. 524. fense. — Regulations of a department cannot
Regulations become a part of the law. prescribe a criminal offense. It is a prin In U. S. v. Barrows, (1869) 1 Abb. (U. S.) ciple of criminal law that an offense which 351, 24 Fed. Cas. No. 14,529, it was held that may be the subject of criminal procedure is a regulation of the treasury department pro an act committed or omitted “in violation of mulgated in conformity to an Act of Con a public law, either forbidding or commandgress becomes a part of the law, and is of as ing it.” U. S. v. Eaton, (1892) 144 U. S. 677, binding force as if incorporated in the body citing 4 Am. and Eng. Encyc. of Law (1st ed.) of the Act itself.
642. Usage as a common law in executive de Regulations for government of executive partments. -- The head of an executive de departments. — In Boske v. Comingore, (1900) partment, in the distribution of its various 177 U. S. 459, it was held that regulations duties and responsibilities, is often compelled prescribed by the heads of the executive deto exercise his discretion. He is, however, partments, not inconsistent with law, for the limited in the exercise of his power by the * custody, use, and preservation of the law; but, because of this fact, he need not records, papers, and property of the departshow a statutory provision for all of his acts. ment, are consistent with the Constitution, Hence, of necessity, usages have been estab and that it is competent for such head of a lished in every department of the government, department to take from a subordinate all which have become a kind of common law, discretion as to permitting such records, and regulate the rights and duties of those papers, and property in his custody to be acting within their respective limits. U. S. used for any other purpose than that which v. Macdaniel, (1833) 7 Pet. (U. S.) 14. appertains to the business of that depart
Purpose of regulations. — Where rights, ment, and reserve for his own determination duties, and obligations are defined by statute all matters of that character. A state court they cannot be taken away or abridged by the cannot impose the duty upon a federal officer regulations of an executive department. The having the custody of such papers to produce object and purpose of such regulations is to the same as evidence, nor punish br process carry into effect the law in respect to which for contempt the refusal of a subordinata they may be promulgated. Campbell v. U. either to obey a subpæna duces tecum or to S., (1882) 107 U. S. 407; Laurey v. U. S., testify concerning matters connected with his (1897) 32 Ct. Cl. 259.
department, in violation of prescribed reguIt was the evident purpose of Congress in lations lawfully emanating from his execniall the legislative enactments which support tive head. See also In re Huttman, (1895)
70 Fed. Rep. 699; In re Weeks, (1897) 82 Fed. Rep. 729.
In the case of In re Hirsch, (1896) 74 Fed. Rep. 928, Shipman, C. J., in an elaborate opinion expressed an opinion contrary to that rendered in the foregoing cases, In re Huttman and In re Weeks; but the subsequent decision of the questions involved in all of those cases, in Boske v. Comingore, (1900) 177 U. S. 459, supports the views expressed in the cases of in re Huttman and in re Weeks, supra.
Resolutions coercing heads of departments. — The authority of each head of a department is a parcel of the executive power of the President. To coerce a head of a department, therefore, is to coerce the President, and this can only be accomplished by law, constitutional in its nature, and enacted in accordance with the forms of the Constitution. No separate resolution of either house of Congress can coerce a head of a department, unless in some particular in which the law, duly enacted, has subjected him to the direct action of each; and in such case it is to be intended, that, by approving the law, the President has .consented to the exercise of such coerciveness. (1854) 6 Op. Atty.-Gen. 680.
When mandamus may issue against executive heads of departments. — A writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment and discretion. When by special statute, or otherwise, a mere ministerial duty is imposed upon the executive heads of departments, that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may issue to compel them. U. S. v. Blaine, (1891) 139 U. S. 306; U. S. v. Guthrie, (1854) 17 How. (C. S.) 284. See also Ex p. Reeside, (1848) Brun. Col. Cas. (U. S.) 571, 20 Fed. Cas. No. 11,656; McElrath v. McIntosh, (1848) Brun. Col. Cas. (U. S.) 559, 16 Fed. Cas. No. 8,781.
Conclusiveness of action of heads of executive departments. — The Constitution and statute place the executive departments and their heads under the complete power and control of the President, as the means of carrying his will and orders into effect. But it does not follow from this that the head of a department is a mere clerk, to register the orders and execute the commands of his superior officer; on the contrary, by reason of the nature and requirements of the position, the highest responsibilities attach, and it constantly demands the soundest judgment and discretion; and where the incumbent exercises such judgment and discretion, in respect to any purely executive function appertaining to that department, every other department of the government is bound thereby. It is conclusive. Floyd Acceptance Case, (1865) 1 Ct. C1. 270.
Civil service commission not attached to executive departments. — By the term “ ecutive departments," when used in the federal statutes, is properly understood to mean only those departments specified in
section 158, R. S., each of which is represented by one particular head; the department of agriculture having been added thereto by subsequent legislation. The heads of these departments constitute the cabinet of the executive department. No board, commission, bureau, or office which does not come under the control of the head of one of these departments, either expressly or by implication, can properly be classed as belonging to an executive department. The civil service commission created by Act of Jan. 16, 1883, 22 Stat. L. 403, ch. 27, is not attached in any wise to any of the executive departments, nor under the control of a department presided by a cabinet officer, or subject to any regulation or control save that of the President himself. (1898) 22 Op. Atty.-Gen. 62.
Chiefs of division subject to regulation. In the department of agriculture the term “ chief of division” appears to be recognized by Congress in the appropriation acts as attached to the persons in charge of the several divisions of natural science which are employed in accomplishing the objects of that department. Such chiefs of divisions are subject to all the regulations in accordance with law which may be promulgated by the head of the department. (1894) 20 Op. Atty.-Gen. 703.
Regulations as to hours of labor, etc. Under the provisions of section 161, R. S., authorizing the heads of departments to prescribe regulations, there seems to be no limitation to the right of such heads to demand service of their subordinates, and applications for annual or sick leave and reasons for extending or limiting hours of laborare matters intrusted by statute to the discretion of departmental heads. (1894) 20 Op. Atty.Gen. 728.
Executive power is in the President and through him in the executive departments.
The Constitution vests the executive power of the government in the President. But in view of the physical impossibility of his performing, in person, all the executive duties and functions of the government, the Constitution'anticipates that the public business will be distributed among executive departments,” conducted by “ heads of departments," whose constitutional power is included in, and a delegated part of, that of the President. (1854) 6 Op. Atty.-Gen. 583.
Instructions from heads of executive departments presumed to be those of the President. -- As a general rule, the direction of the President is to be presumed in all of the instructions and orders issuing from the competent departments, and official instructions issued by the heads of the several executive departments, civil and military, within their respective jurisdiction are presumed to be valid and lawful, without containing express reference to the direction of the President. (1855) 7 Op. Atty.-Gen. 453. And see (1862) 10 Op. Atty.-Gen. 171; (1877) 15 Op. Atty.Gen. 291; Wilcox 1. Jackson, (1839) 13 Pet. (U. S.) 513; U. S. 1. Eliason, (1842) 16 Pet. (U. S.) 302; Confiscation Cases, (1873) 20 Wall. (U. S.) 92; U. S. v. Farden, (1878) 99 U. S. 19; Wolsey v. Chapman, (1879) 101 U.