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Claims Referred by, see CLAIMS.

Care of Public Property and Seat of Office, see PUBLIC PROPERTY, BUILD

INGS, AND GROUNDS.

Contracts for Supplies and Services, see PUBLIC CONTRACTS.

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.
Second. The Department of War.

Third. The Department of the Treasury.
Fourth. The Department of Justice.
Fifth, The Post-Office Department.
Sixth. The Department of the Navy.
Seventh. The Department of the Interior.
"This title" above mentioned comprises
R. S. secs. 158-198.

The department of agriculture was established as an executive department by the Act of Feb. 9, 1889, ch. 122, given under the title AGRICULTURE, vol. 1, p. 8. By that Act this section is amended "to include such department." See (1892) 20 Op. Atty. Gen. 395.

The department of commerce and labor was established as an executive department by the Act of Feb. 14, 1903, ch. 552, and the above section is amended to include such department. See Appendix.

Exposition of the constitution of the executive departments of the United States. The Constitution does not specify the subordinate, ministerial, or administrative functionaries, by whose agency or counsels the details of the public business are transacted. It recognizes the existence of such official agents and advisers, but leaves the number and the organization of those departments to be determined by Congress. In the exercise of this duty, the constitutional Congress proceeded at an early day of its first session (July 27, 1789, 1 Stat. L. 28, ch. 4) to establish the "department of foreign affairs," with "a principal officer therein," to be called the secretary for the department of foreign affairs. This Act was the commencement of the organization of executive departments under the Constitution. On Sept. 15, 1789, by Act of Congress (1 Stat. L. 68, ch. 14, sec. 1), the department denominated the department of foreign affairs" was changed to that of the "department of state. Next after establishing the department of foreign affairs and at the same session (Aug. 7, 1789, 1 Stat. L. 49, ch. 7), Congress established the "department of war," with its chief officer therein to be called the secretary for the department of war. Following, at the same session, came a department of treasury (not the treasury), the head of this department, however, being called the secretary of the treasury. At the same session (Sept. 24, 1789, 1 Stat. L. 73) followed "An Act to establish the judicial courts of the United States," wherein, by section 35. of said Act,

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[R. S.]

provision was made for the appointment of an attorney-general, and by another Act of the same session (Sept. 22, 1789, 1 Stat. L. 70) a postmaster-general was temporarily appointed, but not to be in the same high official relation to the government as that officer occupies at the present time. Such was the original basis of the executive organization of the government. The secretary of state for political and foreign affairs, the secretary of war for military and naval matters, the secretary of the treasury for those of finance, and the attorney-general for judicial and legal affairs- these were the immediate superior ministerial officers of the President, as well as his constitutional counselors during the whole period of the administration of the first President of the United States. (1854) 6 Op. Atty.-Gen. 326.

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Threefold relation of executive department. The attorney-general, in a munication addressed to the President in 1854, in defining the relations of the executive department, declared that "heads of departments have a threefold relation, namely: 1st, to the President, whose political or confidential ministers they are, to execute his will, or rather to act in his name and by his constitutional authority, in cases in which the President possesses a constitutional or legal discretion; 2d, to the law, for where the law has directed them to perform certain acts, and where the rights of individuals are dependent on those acts, then in such cases a head of department is an officer of the law, and amenable to the laws for his conduct; and 3d, to Congress, in the conditions contemplated by the Constitution. This latter relation, that of the departments to Congress, is one of the great elements of responsibility and legality in their action. They are created by law; most of their duties are prescribed by law; Congress may at all times call on them for information or explanation in matters of official duty, and it may, if it see fit, interpose by legislation concerning them, when required by the interests of the Government." (1854) 6 Op. Atty.-Gen. 326.

Sec. 159. [Word "Department."] The word "Department" when used alone in this Title, and Titles five, six, seven, eight, nine, ten, and eleven, means 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. 486.

Salaries reduced to eight thousand dollars. - By the Act of Jan. 20, 1874, ch. 11 (given

under title CONGRESS, vol. 2, p. 216), the salary of each head of a department is reduced to eight thousand dollars.

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; Act of Sept. 15, 1789, ch. 14, 1 Stat. L. 68; Act of Aug. 7, 1789, ch. 7, 1 Stat. L. 49; Act of Sept. 2, 1789, ch. 12, 1 Stat. L. 65; Act of June 8, 1872, ch. 335, 17 Stat. L. 283; Act of April 30, 1798, ch. 35, 1 Stat. L. 553; Act of June 22, 1870, ch. 150, 16 Stat. L. 163; Act of March 3, 1849, ch. 108, 9 Stat. L. 395.

Regulations made for the government of the department only. This section, while giving authority to the heads of departments to prescribe regulations, explicitly provides that they must not be inconsistent with law. No authority is created by the statute which enables the heads of departments to make rules for the conduct of persons not connected with the departments, but such regulations, when made, are exclusively for the government of the department, and the conduct of its officers, and the preservation of the papers and property belonging to the department. (1883) 17 Op. Atty. Gen. 524.

Regulations become a part of the law. In U. S. v. Barrows, (1869) Abb. (U. S.) 351, 24 Fed. Cas. No. 14,529, it was held that a regulation of the treasury department promulgated in conformity to an Act of Congress becomes a part of the law, and is of as binding force as if incorporated in the body of the Act itself.

Usage as a common law in executive departments. The head of an executive department, in the distribution of its various duties and responsibilities, is often compelled to exercise his discretion. He is, however, limited in the exercise of his power by the law; but, because of this fact, he need not show a statutory provision for all of his acts. Hence, of necessity, usages have been established in every department of the government, which have become a kind of common law, and regulate the rights and duties of those acting within their respective limits. U. S. v. Macdaniel, (1833) 7 Pet. (U. S.) 14.

Purpose of regulations. — Where rights, duties, and obligations are defined by statute they cannot be taken away or abridged by the regulations of an executive department. The object and purpose of such regulations is to carry into effect the law in respect to which they may be promulgated. Campbell v. U. S., (1882) 107 U. S. 407; Laurey v. U. S., (1897) 32 Ct. Cl. 259.

It was the evident purpose of Congress in all the legislative enactments which support

the regulations "not inconsistent with law" and promulgated by heads of departments, to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly, such a purpose is within the just scope of legislative power. Ex p. Curtis, (1882) 106 U. S. 373.

Departmental regulations cannot alter laws as enacted. Regulations promulgated by the heads of executive departments, while they have the force and effect of a statute if not inconsistent with law, may not be extended so as to alter or amend a law already enacted by Congress. The secretary of the treasury cannot, by his regulations, alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what Congress has enacted." Morrill v. Jones, (1882) 106 U. S. 466.

Regulations cannot prescribe criminal offense. Regulations of a department cannot prescribe a criminal offense. It is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed or omitted "in violation of a public law, either forbidding or commanding it." U. S. v. Eaton, (1892) 144 U. S. 677, citing 4 Am. and Eng. Encyc. of Law (1st ed.) 642.

Regulations for government of executive departments. In Boske t. Comingore, (1900) 177 U. S. 459, it was held that regulations prescribed by the heads of the executive departments, not inconsistent with law, for the

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custody, use, and preservation of the records, papers, and property" of the department, are consistent with the Constitution, and that it is competent for such head of a department to take from a subordinate all discretion as to permitting such records, papers, and property in his custody to be used for any other purpose than that which appertains to the business of that department, and reserve for his own determination all matters of that character. A state court cannot impose the duty upon a federal officer having the custody of such papers to produce the same as evidence, nor punish by process for contempt the refusal of a subordinat either to obey a subpoena duces tecum or to testify concerning matters connected with his department, in violation of prescribed regulations lawfully emanating from his executive 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. (U. 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. Cl. 270.

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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.

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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 labor are 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.

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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 jurisdictions, 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 . Jackson, (1839) 13 Pet. (U. S.) 513; U. S. r. 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.

S. 769; Runkle v. U. S., (1887) 122 U. S. 557; U. S. r. Fletcher, (1893) 148 U. S. 89.

Powers conferred under this section. - In Butler v. White, (1897) 83 Fed. Rep. 578, passing upon the constitutionality of the Act of July 27, 1879, sec. 161, R. S., as well as the specific authority conferred under it, Jackson, J., said: That Act has been in force from the day of its passage to the present time. Here is a power conferred by the authority of Congress upon the head of each department, and is in no sense a delegated power of legislation. The evident purpose of Congress was to furnish each department with authority to regulate the conduct of its officers and employees and the distribution and performance of the business of the office. If such a power to legislate had been delegated under that Act, the courts of this country would long since have been invoked to pass upon the power of Congress to

delegate a power to the head of any department which alone belonged to it. But long acquiescence in the Act is of itself sufficient evidence of the right of Congress to pass it."

Heads of departments no authority to dictate residence of subordinates. The Act of March 3, 1849, organizing the department of the interior, while it gives to the head of that department a supervisory power over the accounts of marshals, clerks, etc., creates no authority to dictate where they shall live. (1857) 9 Op. Atty. Gen. 23.

Superintendent of public printing not subject to departmental regulations. The superintendent of public printing seems to have a department of his own, in which he is in a sense supreme. He is not under the control of any one of the executive departments. U. S. v. Allison, (1875) 91 U. S. 307. See the title PUBLIC PRINTING.

Sec. 162. [Hours of business.] From the first day of October until the first day, of April, in each year, all the Bureaus and offices in the State, War, Treasury, Navy, and Post-Office Departments, and in the General Land-Office, shall be open for the transaction of the public business at least eight hours in each day; and from the first day of April until the first day of October, in each year, at least ten hours in each day; except Sundays and days declared public holidays by law. [R. S.]

Act of July 4, 1836, ch. 352, 5 Stat. L. 112. Hours of labor and leaves of absence to department employees, see CIVIL SERVICE, vol. 1, p. 816 et seq.

Closing on decease of ex-official, see section 4 of the Act of March 3, 1893, ch. 211, infra. R. S. secs. 163 to 172 are given under CIVIL SERVICE, vol. 1, pp. 824-826.

Place appointed for transaction of public business. - In all appointments to subordi

nate positions in any of the executive departments, the employee is required to take the oath of office and enter on duty." It is impossible that there is, or can be, any. other place for the performance of official duty than in the public buildings provided for that purpose, and which are to be kept open during stated hours for the transaction of public business. Palmer's Case, (1881) 17 Ct. Cl. 230.

Sec. 173. [Chief clerks to supervise subordinate clerks.] Each chief clerk in the several Departments, and Bureaus, and other offices connected with the Departments, shall supervise, under the direction of his immediate superior, the duties of the other clerks therein, and see that they are faithfully performed. [R. S.]

Act of Aug. 26, 1842, ch. 202, 5 Stat. L. 525.

Sec. 174. [Chief clerks to distribute duties, etc.] Each chief clerk shall take care, from time to time, that the duties of the other clerks are distributed with equality and uniformity, according to the nature of the case. He shall revise such distribution from time to time, for the purpose of correcting any tendency to undue accumulation or reduction of duties, whether arising from individual negligence or incapacity, or from increase or diminution of particular kinds of business. And he shall report monthly to his superior officer any existing defect that he may be aware of in the arrangement or dispatch of business. [R. S.]

Act of Aug. 26, 1842, ch. 202, 5 Stat. L. 525.

Sec. 175. [Duty of chief on receipt of report.] Each head of a Department, chief of a Bureau, or other superior officer, shall, upon receiving each monthly report of his chief clerk, rendered pursuant to the preceding section, examine the

facts stated therein, and take such measures, in the exercise of the powers conferred upon him by law, as may be necessary and proper to amend any existing defects in the arrangement or dispatch of business disclosed by such report. [R. S.]

Act of Aug. 26, 1842, ch. 202, 5 Stat. L. 525.

Sec. 176. [Disbursing clerks.] The disbursing clerks authorized by law in the several Departments shall be appointed by the heads of the respective Departments, from clerks of the fourth class; and shall each give a bond to the United States for the faithful discharge of the duties of his office according to law in such amount as shall be directed by the Secretary of the Treasury, and with sureties to the satisfaction of the Solicitor of the Treasury; and shall from time to time renew, strengthen, and increase his official bond, as the Secretary of the Treasury may direct. Each disbursing clerk, except the disbursing clerk of the Treasury Department, must, when directed so to do by the head of the Department, superintend the building occupied by his Department. Each disbursing clerk is entitled to receive, in compensation for his services in disbursing, such sum in addition to his salary as a clerk of the fourth class as shall make his whole annual compensation two thousand dollars a year. [R. S.]

Act of March 3, 1853, ch. 97, 10 Stat. L. 209, 211; Act of March 3, 1855, ch. 175, 10 Stat. L. 669; Act of March 3, 1873, ch. 226, 17 Stat. L. 485 (492).

Duties and pay of disbursing clerks. The Act of March 3, 1853, 10 Stat. L. 211, ch. 97, sec. 3, provided for the appointment of a cisbursing officer for each department from one of the clerks of class No. 4, whose pay was scaled at eighteen hundred dollars per annum, to superintend the buildings of their respective departments, and for such service they were to receive the sum of two hundred dollars in addition to their regular salaries, making their entire salary equal to two thousand dollars per annum, and were required to execute bond. This Act did not relate to the state department, which, by Act of March 3, 1855, 10 Stat. L. 669, ch. 175, sec. 4, was brought within the same provisions enacted in behalf of the other departments by the Act of 1853. Such clerk or disbursing officer is not entitled to any commission over and above the amount of his said salary of two thousand dollars for keeping and disbursing the funds of his department and other services enumerated. Stubbs's Case, (1861) 10 Op. Atty. Gen. 31.

Adjustment of accounts of disbursing officers. Vast sums of money are paid in the way of salaries and on other accounts by disbursing officers before the claims have passed the treasury accounting, and, while the number of such officers is large, their

appointments are provided for by special or
general provisions of statute. (See R. S.
secs. 56-58, 62, 176, 255, 496, 1153, 1382,
1550, 1563, 1765, 1951, 3144, 3646, 3648, 3658,
3677, 4839, etc.) All of such officers are
under bonds, and responsible for the legality
and correctness of their payments. Their ac-
counts are finally settled through the proper
accounting officers, but not until each and
every item therein has been subjected to care-
ful examination and adjustment, and only
such are allowed as are found to be properly
and sufficiently vouched for and shown to
have been legally and rightly paid.
others are rejected, and the disbursing officer
and his bondsmen are held liable for any bal-
ances found against him upon such final
settlement. McKnight's Case, (1877) 13 Ct.
Cl. 304.

All

Duty and pay of chief clerk of national board of health. By the Act of July 1, 1879, 21 Stat. L. 46, ch. 61, sec. 5, 66 the chief clerk of the national board of health shall act as disbursing agent for the board, and shall give bond conformably to section 176 of the Revised Statutes, for the faithful performance of that duty, and for that service he shall receive three hundred dollars per annum in addition to his salary as chief clerk." This provision is mandatory, and the secretary of the treasury has no authority under sec. 176, R. S., to diminish or take away the salary. Dunwoody v. U. S., (1892) 143 U. S. 578, (1887) 22 Ct. Cl. 269.

Sec. 177. [Vacancies; how temporarily filled.] In case of the death, resignation, absence, or sickness of the head of any Department, the first or sole assistant thereof shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such head until a successor is appointed, or such absence or sickness shall cease. [R. S.]

Act of July 23, 1868, ch. 227, 15 Stat. L. 168.

Authority of assistants to act implied by

signature as such to documents. The signature of a "first or sole assistant," as the acting head of a department, when attached

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