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S. 769; Runkle v, U. S., (1887) 122 U. S. 557; U. S. v. 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

quiescence 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. nate positions in any of the executive de

Hours of labor and leaves of absence to partments, the employee is required to take department employees, see Civil SERVICE, the oath of office "and enter on duty.” It vol. 1, p. 816 et seq.

is impossible that there is, or can be, any. Closing on decease of ex-official, see section other place for the performance of official 4 of the Act of March 3, 1893, ch. 211, infra. duty than in the public buildings provided

R. S. secs. 163 to 172 are given under CIVIL for that purpose, and which are to be kept SERVICE, vol. 1, pp. 824-826.

open during stated hours for the transaction Place appointed for transaction of public of public business. Palmer's Case, (1881) 17 business. In all appointments to subordi Ct. CI. 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 busi

[R. S.] Act of Aug. 26, 1842, ch. 202, 5 Stat. L. 525.

ness.

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 meisures, 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. appointments are provided for by special or 209, 211; Act of March 3, 1855, ch. 175, 10 general provisions of statute. (See R. S. Stat, L. 669; Act of March 3, 1873, ch. 226, secs. 56-58, 62, 176, 255, 496, 1153, 1382, 17 Stat. L. 485 (492).

1550, 1563, 1765, 1951, 3144, 3646, 3648, 3658, Duties and pay of disbursing clerks. - The 3677, 4839, etc.) All of such officers are Act of March 3, 1853, 10 Stat. L. 211, ch. 97, under bonds, and responsible for the legality see. 3, provided for the appointment of a and correctness of their payments. Their acuisbursing officer for each department from counts are finally settled through the proper one of the clerks of class No. 4, whose pay accounting officers, but not until each and was scaled at eighteen hundred dollars per every item therein has been subjected to careannum, to superintend the buildings of their ful examination and adjustment, and only respective departments, and for such service such are allowed as are found to be properly they were to receive the sum two hundred and sufficiently vouched for and shown to dollars in addition to their regular salaries, have been legally and rightly paid. All making their entire salary equal to two others are rejected, and the disbursing officer thousand dollars per annum, and were re and his bondsmen are held liable for any balquired to execute bond. This Act did not re ances found against him upon such fina) late to the state department, which, by Act settlement. McKnight's Case, (1877) 13 Ct. of March 3, 1855, 10 Stat. L. 669, ch. 175, Cl. 304. sec. 4, was brought within the same pro Duty and pay of_chief clerk of national visions enacted in behalf of the other de board of health. — By the Act of July 1, partments by the Act of 1853. Such clerk or 1879, 21 Stat. L. 46, ch. 61, sec. 5, disbursing officer is not entitled to any com chief clerk of the national board of health mission over and above the amount of his shall act as disbursing agent for the board, said salary of two thousand dollars for keep and shall give bond conformably to section ing and disbursing the funds of his depart 176 of the Revised Statutes, for the faithful ment and other services enumerated. Stubbs's performance of that duty, and for that servCase, (1861) 10 Op. Atty.-Gen. 31.

ice he shall receive three hundred dollars Adjustment of accounts of disbursing per annum in addition to his salary as chief officers. – Vast sums of money are paid in clerk." This provision is mandatory, and the way of salaries and on other accounts by the secretary of the treasury has no author. disbursing officers before the claims have ity under sec. 176, R. S., to diminish or take passed the' treasury accounting, and, while away the salary. Dunwoody 1. U. S., (1892) the number of such officers is large, their 143 U. S. 578, (1887) 22 Ct. Cl. 269.

as the

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. signature as such to documents. -- The signa168.

ture of a “ first or sole assistant," as the Authority of assistants to act implied by acting head of a department, when attached

to a document of that department, implies that one of the conditions provided in section 177, R. S., which authorizes him to act in that capacity, had arisen. Marsh V. Nichols, (1888) 128 U. S. 615; Miller v. New York, (1883) 109 U. S. 394.

Assistant heads of departments - authority to act. -- It cannot be doubted that, under the provisions of secs. 177 and 161, R. S., the secretary of the treasury may assign to the assistant secretary or secretaries of that department the duty of determining appeals from assessments made by collectors of

customs duties, and in the absence or sickness of the head of that department such assistant secretary may lawfully perform his duties in respect to such matters which have to be determined, settled, and adjudicated in that department. John Shillito Co. v. McClung, (C. C. A. 1892) 51 Fed. Rep. 872; Parish ". U. S., (1879) 100 U. S. 500; U. S. v. Adams, (1885) 24 Fed. Rep. 348; Chadwick v. U.S., (1880) 3 Fed. Rep. 756; U. S. v. Peraltı, (1856) 19 How. (U. S.) 347; (1888) 19 Op. Atty.-Gen. 133.

Sec. 178. [Vacancies in subordinate offices.] In case of the death, resignation, absence, or sickness of the chief of any Bureau, or of any officer thereof, whose appointment is not vested in the head of the Department, the assistant or deputy of such chief or of such officer, or if there be none, then the chief clerk of such Bureau, shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such chief or of such officer 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.

Navy department bureau offices. In this section the words “the assistant or deputy of such chief or of such officer" can only refer to assistants or deputies whose appointment is specifically provided for by statute. There is no specific provision for the assignment of assistants to chiefs of bureaus from commissioned officers of the navy, and such officers are not authorized, under said section, to perform the duties of their chief in case of his absence or sickness. (1890) 19 Op. Atty.-Gen. 503.

Vacancies in offices of chiefs of bureaus. When the place of any chief of bureau named in section 10 of the Act of March 3, 1883, 22 Stat. L. 565, ch. 130, has been temporarily filled, under R. S. sec. 178, the person so temporarily acting may perform the duties of such officer as a member of the board of commissioners of the Soldiers' Home, just as he performs the other duties of the officers in whose stead he is acting. (1901) 23 Op. Atty.-Gen. 473; (1892) 20 Op. Atty.-Gen. 483.

Sec. 179. [Discretionary authority of the President.] In any of the cases mentioned in the two preceding sections, except the death, resignation, absence, or sickness of the Attorney-General, the President may, in his discretion, authorize and direct the head of any other Department or any other officer in either Department, whose appointment is rested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease. [R. S.]

Act of July 23, 1868, ch. 227, 15 Stat. L. bureaus, and other officers thereof. The rea168; Act of June 22, 1870, ch. 150, 16 Stat. son for the enactment applied with the same L. 162.

force to an existing vacancy as to one which Vacancy caused by retirement. - Ava should thereafter occur. The words “in cancy caused by the retirement of a head of case of death, resignation, absence, or sicka department may be temporarily filled, un

of an officer, are as appropriate to der this section. It may be well said that, describe existing facts as those which take in the eye of the law, a retired officer is place in the future. American Wood Paper "absent,” he being incapable of rendering Co. v. Glen's Falls Paper Co., (1870) 8 the service required. (

(1890) 19 Op. Atty. Blatchf. (U. S.) 528. Gen. 500.

Acting secretary invested with authority Act of July 23, 1868, applies to existing in absence of chief. - In the absence of the and future vacancies. - The Act of July 23, secretary of war, the authority with which 1868, 15 Stat. L. 168, ch. 227, from the time he is invested can be exercised by the officer it took effect as a law, in all of its prin who, under the law, becomes for the time cipal provisions, applied to ali existing vacan acting secretary of war. Ryan v. U. S., cies caused by death or resignation. It (1850) 136 U. S. 81. embraced heads of departments, chiefs of

ness

66

Sec. 180. [Temporary appointments limited to thirty days.) A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than thirty days. [R. S.]

Act of July 23, 1868, ch. 227, 15 Stat. L. have been changed since the year 1789, and 168.

under R. S. secs. 177, 179, 180, and 181, no This section was amended so as to read statutory succession or assignment of some as" above given by the Act of Feb. 6, 1891, other officer to the vacancy is valid for a ch. 113, 26 Stat. L. 733. Prior to this amend longer period, in all, than ten days. See ment the last two words were

“ ten days."

(1884) 18 Op. Atty.-Gen. 50, 58, in conflict Construed by Attorney-General Devens. with his former opinion (1883) 17 Op. Atty.In reply to an inquiry of the secretary of the Gen. 535; (1891) 20 Op. Atty.-Gen. 8. treasury, Attorney-General Devens gave it as Power of President to fill vacancy limited his opinion, that the (then) ten days referred to the time prescribed by statute. When a to in this section must be computed from the vacancy has been temporarily filled once by date the President acted in making a tempo the President for the period prescribed, the rary appointment to fill a vacancy, and not power conferred by statute is exhausted; it from the date of the death or resignation of is not competent to the President to appoint the head of a department. (1878) 15 Op. either the same or another officer to perform Atty.-Gen. 457. But upon this subject see thereafter the duties of the vacant office (1891) 20 Op. Atty.-Gen. 8, noted infra. for an additional period of ten days. (1880)

Vacancies in executive departments. - The 16 Op. Atty.-Gen. 596; (1883) 17 Op. Atty.. legislation concerning vacancies in the office Gen. 530, of the heads of departments appears not to

Sec. 181. [Restriction on temporary appointments.] No temporary appointment, designation, or assignment of one officer to perform the duties of another, in the cases covered by sections one hundred and seventy-seven and one hundred and seventy-eight, shall be made otherwise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate. [R. S.]

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

Sec. 182. [Extra compensation disallowed.] An officer performing the duties of another office, during a vacancy, as authorized by sections one hundred and seventy-seven, one hundred and seventy-eight, and one hundred and seventynine, is not by reason thereof entitled to any other compensation than that attached to his proper office. [R. S.]

Act of July 23, 1868, ch. 227, 15 Stat. L. the vacancy was caused by death, resignation, 168.

absence, or sickness, and whether such duties Temporary officer not entitled to extra devolved upon him by operation of the statute compensation. — The prohibition contained or appointment of the President, and such in section 182 concerning the extra compensa officer is not entitled to any salary other than tion of officers was designed to be general that which he holds which involves an inand to apply to every officer performing the crease of compensation. (1862) 13 Op. Atty.duties of an office temporarily vacant, whether Gen. 8; (1871) 13 Op. Atty.-Gen. 512.

Sec. 183. [Relates to authority to administer oaths to witnesses. See PUBLIC OFFICERS. ]

Secs. 184, 185, 186, 187. [Relate to claims pending in departments, etc. See Claims, vol. 2, pp. 5, 6.]

Sec. 188. [Relates to evidence in suits pending in Court of Claims. See CLAIMS, vol. 2, p. 74.]

Sec. 189. [Employment of attorneys or counsel.] No head of a Department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same. [R. S.]

Act of June 22, 1870, ch. 150, 16 Stat. L. 164.
See title JUSTICE DEPARTMENT.

a

Attorney-general to control department of in the statutory provisions prescribing the justice. — By the Act of June 22, 1870, 16 fees of that officer. See (1855) 7 Op. Aity.. Stat. L. 164, ch. 150, Congress plainly in Gen. 46; 0

(1866) 11 Op. Atty.-Gen. 433; tended to confine to the department of justice (1868) 12 Op. Atty.-Gen. 416. These opinall the litigation and all of the law business ions bear date prior to the enactment of the in which the United States are interested, Revised Statutes, but at the time they were and which theretofore had been scattered given the law regulating the compensation among different public officers, departments, of district attorneys was, in the main, suband branches of the goverment, and to break stantially the same as at present. But their up a practice of frequently employing in employment must be under authority of the ollicial attorneys in the public service, by attorney-general, who shall fix the amount assigning to the attorney-general the super of their compensation, to be paid out of the vision and control thereof. Perry v. U. S., appropriation made for the purchase of the (1893) 28 Ct. Cl. 483.

land. (1887) 19 Op. Atty.-Gen. 63; Weed v. Prior to the enactment by Congress of the U. S., (1897) 82 Fed. Rep. 414. Jaw of June 22, 1870, it was within the dis For opinions affecting the question of the cretion of the heads of departments to employ authority of the heads of the several execua special counsel for the conduct of any legal tive departments to employ counsel in matters business arising in their respective depart specially relating to their respective departments. The existence of this power to employ ments, see further (1871) 13 Op. Atty.-Gen. counsel was expressly recognized in the Act 514 (navy department); (1872) 14 Op. Atty.of Feb. 26, 1853, "to regulate the fees and Gen. 13 (navy department); (1885) 18 Op. costs to be allowed clerks, marshals, and at Atty.-Gen. 135 (navy department); (1878) 16 torneys of the Circuit and District Courts of Op. Atty.-Gen. 99 (treasury department); the United States,” etc. See opinion of Hon. (1893) 20 Op. Atty.-Gen. 655 (treasury deCaleb Cushing, (1855) 7 Op. Atty.-Gen. 141; partment); (1885) 18 Op. Atty.-Gen. 124 and subsequent opinions holding, in effect, the (war department); (1889) 19 Op. Atty.-Gen. same views, which were founded on the Act 328 (agricultural department). of Feb. 26, 1853, see Bryan's Case, (1861) 10 Op. Employment of foreign counsel by secreAtty.-Gen. 41; (1868) 12 Op. Atty.-Gen. 368. tary of navy. — In view of the above section

When district attorneys entitled to special the secretary of the navy is not warranted in compensation. — The question whether employing counsel in a foreign country to United States district attorney is entitled to institute a suit in behalf of the United States special compensation for services in examin to recover money for injury to a United ing titles to land proposed to be purchased by States war vessel, but should refer the matthe government, has been discussed by differ ter to the department of justice, which is ent attorney-generals prior to the enactment charged with the duty of determining when of the Act of June 22, 1870, 16 Stat. L. 164, the United States shall sue, for what it shall ch. 150, sec. 17, and they have uniformly sue, and that such suits shall be brought in held that he is entitled thereto, upon the appropriate cases. (1895) 21 Op. Atty.-Gen. ground that such services are not included 195.

Sec. 190. [Provides that persons formerly in departments are not to prosecute claims. See CLAIMS, vol. 2, p. 6.]

Sec. 191. [Certified balances.] [Repealed.] This section was as follows:

For decisions and opinions under section “ SEC. 191. The balances which may from 191, see (1869) 13 Op. Atty.-Gen. 6, 167; time to time be stated by the Auditor and (1872) 14 Op. Atty.-Gen. 65; (1876) 15 Op. certified to the heads of Departments by the Atty.-Gen. 139, 596; (1877) 15 Op. Atty.-Gen. Commissioner of Customs, or the Comptrollers 192, 626; (1881) 17 Op. Atty.-Gen. 233; of the Treasury, upon the settlement of pub (1893) 20 Op. Atty.-Gen. 655; U. S. v. Rand, lic accounts, shall not be subject to be changed (C. C. A. 1892) 53 Fed. Rep. 348; U. S. v. or modified by the heads of Departments, but Windom, (1891) 137 U. S. 636; Duval v. shall be conclusive upon the executive branch U. S., (1889) 25 Ct. Cl. 57; Matter of Bilof the Government, and be subject to revision lings, (1888) 23 Ct. Cl. 166; Mississippi Cent. only by Congress or the proper courts. The R. Co. v. U. S., (1888) 23 Ct. Ci, 32; Baltihead of the proper Department, before sign more, etc., R. Co. v. U. S., (1899) 34 Ct. CÍ. ing a warrant for any balance certified to him 484; Real Estate Sav. Bank's Case, (1880) by a Comptroller, may, however, submit to 16 Ct. Cl. 352; McKnight's Case, (1877) 13 such Comptroller any facts in his judgment Ct. Cl. 307; McKee's Case, (1876) 12 Ct. C). affecting the correctness of such balance, but 533; Delaware River Steamboat Co.'s Case, the decision of the Comptroller thereon shall (1869) 5 Ct. Cl. 55; U. S. v. Cadwalader, be final and conclusive, as hereinbefore pro (1835) Gilp. (U. S.) 563, 25 Fed. Cas. No. vided." Act of March 30, 1868, ch. 36, 15 14,706; U. Š. v. Jones, (1855) 18 How. (U. S.) Stat. L. 54.

92; U. S. v. Lynch, (1890) 137 U. S. 280; It is directly repealed by section 8 of the Stanton v. U. S., (1889) 37 Fed. Rep. 252; Legislative, Executive, and Judicial Appro Erwin v. U. S., (1889) 37 Fed. Rep. 470; Harpriation Act of July 31, 1894, ch. 174, 28

V. U. S., (1890) 43 Fed. Rep. 560, Stat. L. 208, which Act contains substitute affirmed (1893) 147 U. S. 268. provisions: See TREASURY DEPARTMENT.

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