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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 r. 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. Peralta, (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 vested 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. 168; Act of June 22, 1870, ch. 150, 16 Stat. L. 162.

Vacancy caused by retirement. - A vacancy caused by the retirement of a head of a department may be temporarily filled, under this section. It may be well said that, in the eye of the law, a retired officer is absent," he being incapable of rendering the service required. (1890) 19 Op. Atty.Gen. 500.

Act of July 23, 1868, applies to existing and future vacancies. -The Act of July 23, 1868, 15 Stat. L. 168, ch. 227, from the time it took effect as a law, in all of its principal provisions, applied to all existing vacancies caused by death or resignation. It embraced heads of departments, chiefs of

bureaus, and other officers thereof. The reason for the enactment applied with the same force to an existing vacancy as to one which should thereafter occur. The words in case of death, resignation, absence, or sickness " of an officer, are as appropriate to describe existing facts as those which take place in the future. American Wood Paper Co. v. Glen's Falls Paper Co., (1870) 8 Blatchf. (U. S.) 528.

Acting secretary invested with authority in absence of chief. In the absence of the secretary of war, the authority with which he is invested can be exercised by the officer who, under the law, becomes for the time acting secretary of war. Ryan v. U. S., (1850) 136 U. S. 81.

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. 168.

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This section was amended "so as to read as" above given by the Act of Feb. 6, 1891, ch. 113, 26 Stat. L. 733. Prior to this amendment the last two words were ten days." Construed by Attorney-General Devens. In reply to an inquiry of the secretary of the treasury, Attorney-General Devens gave it as his opinion, that the (then) ten days referred to in this section must be computed from the date the President acted in making a temporary appointment to fill a vacancy, and not from the date of the death or resignation of the head of a department. (1878) 15 Op. Atty. Gen. 457. But upon this subject see (1891) 20 Op. Atty.-Gen. 8, noted infra. Vacancies in executive departments. The legislation concerning vacancies in the office of the heads of departments appears not to

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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. 168.

Temporary officer not entitled to extra compensation. The prohibition contained in section 182 concerning the extra compensation of officers was designed to be general and to apply to every officer performing the duties of an office temporarily vacant, whether

the vacancy was caused by death, resignation, absence, or sickness, and whether such duties devolved upon him by operation of the statute or appointment of the President, and such officer is not entitled to any salary other than that which he holds which involves an increase of compensation. (1862) 13 Op. Atty.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.

Attorney-general to control department of justice. By the Act of June 22, 1870, 16 Stat. L. 164, ch. 150, Congress plainly intended to confine to the department of justice all the litigation and all of the law business in which the United States are interested, and which theretofore had been scattered among different public officers, departments, and branches of the goverment, and to break up a practice of frequently employing inollicial attorneys in the public service, by assigning to the attorney-general the supervision and control thereof. Perry t. U. S., (1893) 28 Ct. Cl. 483.

Prior to the enactment by Congress of the law of June 22, 1870, it was within the discretion of the heads of departments to employ a special counsel for the conduct of any legal business arising in their respective departments. The existence of this power to employ counsel was expressly recognized in the Act of Feb. 26, 1853, "to regulate the fees and costs to be allowed clerks, marshals, and attorneys of the Circuit and District Courts of the United States," etc. See opinion of Hon. Caleb Cushing, (1855) 7 Op. Atty.-Gen. 141; and subsequent opinions holding, in effect, the same views, which were founded on the Act of Feb. 26, 1853, see Bryan's Case, (1861) 10 Op. Atty. Gen. 41; (1868) 12 Op. Atty.-Gen. 368. When district attorneys entitled to special compensation. — The question whether a United States district attorney is entitled to special compensation for services in examining titles to land proposed to be purchased by the government, has been discussed by different attorney-generals prior to the enactment of the Act of June 22, 1870, 16 Stat. L. 164, ch. 150, sec. 17, and they have uniformly held that he is entitled thereto, upon the ground that such services are not included

in the statutory provisions prescribing the fees of that officer. See (1855) 7 Op. Acty.Gen. 46; (1866) 11 Op. Atty.-Gen. 433; (1868) 12 Op. Atty.-Gen. 416. These opinions bear date prior to the enactment of the Revised Statutes, but at the time they were given the law regulating the compensation of district attorneys was, in the main, substantially the same as at present. But their employment must be under authority of the attorney-general, who shall fix the amount of their compensation, to be paid out of the appropriation made for the purchase of the land. (1887) 19 Op. Atty.-Gen. 63; Weed v. U. S., (1897) 82 Fed. Rep. 414.

For opinions affecting the question of the authority of the heads of the several executive departments to employ counsel in matters specially relating to their respective departments, see further (1871) 13 Op. Atty.-Gen. 514 (navy department); (1872) 14 Op. Atty.Gen. 13 (navy department); (1885) 18 Op. Atty. Gen. 135 (navy department); (1878) 16 Op. Atty. Gen. 99 (treasury department); (1893) 20 Op. Atty. Gen. 655 (treasury department); (1885) 18 Op. Atty.-Gen. 124 (war department); (1889) 19 Op. Atty.-Gen. 328 (agricultural department).

Employment of foreign counsel by secretary of navy. In view of the above section the secretary of the navy is not warranted in employing counsel in a foreign country to institute a suit in behalf of the United States to recover money for injury to a United States war vessel, but should refer the matter to the department of justice, which is charged with the duty of determining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases. (1895) 21 Op. Atty.-Gen. 195.

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

Sec. 191. [Certified balances.]

This section was as follows:

"SEC. 191. The balances which may from time to time be stated by the Auditor and certified to the heads of Departments by the Commissioner of Customs, or the Comptrollers of the Treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of Departments, but shall be conclusive upon the executive branch of the Government, and be subject to revision only by Congress or the proper courts. The head of the proper Department, before signing a warrant for any balance certified to him by a Comptroller, may, however, submit to such Comptroller any facts in his judgment affecting the correctness of such balance, but the decision of the Comptroller thereon shall be final and conclusive, as hereinbefore provided." Act of March 30, 1868, ch. 36, 15 Stat. L. 54.

It is directly repealed by section 8 of the Legislative, Executive, and Judicial Appropriation Act of July 31, 1894, ch. 174, 28 Stat. L. 208, which Act contains substitute provisions. See TREASURY DEpartment.

[Repealed.]

For decisions and opinions under section 191, see (1869) 13 Op. Atty. Gen. 6, 167; (1872) 14 Op. Atty. Gen. 65; (1876) 15 Op. Atty.-Gen. 139, 596; (1877) 15 Op. Atty.-Gen. 192, 626; (1881) 17 Op. Atty. Gen. 233; (1893) 20 Op. Atty.-Gen. 655; U. S. v. Rand, (C. C. A. 1892) 53 Fed. Rep. 348; U. S. v. Windom, (1891) 137 U. S. 636; Duval v. U. S., (1889) 25 Ct. Cl. 57; Matter of Billings, (1888) 23 Ct. Cl. 166; Mississippi Cent. R. Co. v. U. S., (1888) 23 Ct. Cl. 32; Baltimore, etc., R. Co. v. U. S., (1899) 34 Ct. Cl. 484; Real Estate Sav. Bank's Case, (1880) 16 Ct. Cl. 352; McKnight's Case, (1877) 13 Ct. Cl. 307; McKee's Case, (1876) 12 Ct. Cl. 533; Delaware River Steamboat Co.'s Case, (1869) 5 Ct. Cl. 55; U. S. v. Cadwalader, (1835) Gilp. (U. S.) 563, 25 Fed. Cas. No. 14,706; U. S. v. Jones, (1855) 18 How. (U. S.) 92; U. S. v. Lynch, (1890) 137 U. S. 280; Stanton v. U. S., (1889) 37 Fed. Rep. 252; Erwin v. U. S., (1889) 37 Fed. Rep. 470; Harmon v. U. S., (1890) 43 Fed. Rep. 560, affirmed (1893) 147 U. S. 268.

Sec. 192. [Expenditure for newspapers.] The amount expended in any one year for newspapers, for any Department, except the Department of State, including all the Bureaus and offices connected therewith, shall not exceed one hundred dollars. And all newspapers purchased with the public money for the use of either of the Departments must be preserved as files for such Department. [R. S.]

Act of Aug. 26, 1842, ch. 202, 5 Stat. L. 526.

Secs. 193, 194, 195, 196. [Relate to departmental reports to Congress. See ESTIMATES, APPROPRIATIONS, AND REPORTS, vol. 2, pp. 916-918.]

Sec. 197. [Relates to inventories of governmental property in departmental buildings. See PUBLIC PROPERTY, BUILDINGS, AND GROUNDS.]

Sec. 198. [Relates t biennial lists of employees. See PUBLIC DOCUMENTS.]

An act to authorize and provide for the disposition of useless papers in the Executive

Departments.

[Act of Feb. 16, 1889, ch. 171, 25 Stat. L. 672.]

[Useless papers in Departments to be reported to Congress-examination and sale.] That whenever there shall be in any one of the Executive Departments of the Government an accumulation of files of papers, which are not needed or useful in the transaction of the current business of such Department and have no permanent value or historical interest, it shall be the duty of the head of such Department to submit to Congress a report of that fact, accompanied by a concise statement of the condition and character of such papers. And upon the submission of such report, it shall be the duty of the presiding officer of the Senate to appoint two Senators, and of the Speaker of the House of Representatives to appoint two Representatives, and the Senators and Representatives so appointed shall constitute a joint committee, to which shall be referred such report, with the accompanying statement of the condition and character of such papers, and such joint committee shall meet and examine such report and statement and the papers therein described, and submit to the Senate and House, respectively, a report of such examination and their recommendation. And if they report that such files of papers, or any part thereof, are not needed or useful in the transaction of the current business of such Department, and have no permanent value or historical interest, then it shall be the duty of such head of the Department to sell as waste paper, or otherwise dispose of such files of papers upon the best obtainable terms after due publication of notice inviting proposals therefor, and receive and pay the proceeds thereof into the Treasury of the United States, and make report thereof to Congress. [25 Stat. L. 672.j

For special provisions for the disposition of accumulations of useless papers, see the General Index.

Note the amendment of this Act set out below.

Disposition of useless papers.-The opinion of the secretary of the treasury, in which the attorney-general concurred, was that the clause in the Act of Congress of Aug. 5, 1882, 22 Stat. L. 228, ch. 389, whereby the secre

tary of the treasury was authorized to sell or otherwise dispose of useless papers accumulating in the office of the auditor of the treasury for the post-office department, was impliedly repealed by the general and comprehensive Act of Feb. 16, 1889, 25 Stat. L. 672, ch. 171), for the reason that there was an insuperable repugnancy between the two statutes. (1895) 21 Op. Atty. Gen. 151.

[Extension of provisions of Act of Feb. 16, 1889, ch. 171.] That the Act entitled "An Act to authorize and provide for the disposition of useless papers in the Executive Department," approved February sixteenth, eighteen hundred and eighty-nine, be, and the same is hereby, amended so as to include in its provisions any accumulation of files of papers of a like character therein described now or hereafter in the various public buildings under the control of the several Executive Departments of the Government. [28 Stat. L. 933.]

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The above provision occurs in the Sundry Civil Appropriation Act of March 2, 1895, ch. 189.

SEC. 4. [Closing Departments for deceased ex-officials prohibited.] That hereafter the Executive Departments of the Government shall not be closed as a mark to the memory of any deceased ex-official of the United States. [27 Stat. L. 715.]

The above section 4 is from the Legislative, Executive, and Judicial Appropriation Act of March 3, 1893, ch. 211.

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monthly reports-hours of Hereafter it shall be the

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[Condition of public business in bureaus service quarterly reports to President.] duty of the head of each Executive Department to require monthly reports to be made to him as to the condition of the public business in the several bureaus or offices of his Department at Washington; and in each case where such reports disclose that the public business is in arrears, the head of the Department in which such arrears exist shall require, as provided herein, an extension of the hours of service to such clerks or employees as may be necessary to bring up such arrears of public business. Hereafter it shall be the duty of the head of each Executive Department, or other Government establishment at the seat of government, not under an Executive Department, to make at the expiration of each quarter of the fiscal vear a written report to the President as to the condition of the public business in his Executive Department or Government establishment, and whether any branch thereof is in arrears. [30 Stat. L. 317.]

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