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CHAPTER 3.

EXECUTIVE DEPARTMENTS IN GENERAL.

Temporary head of a department or bureau:

Succession of assistant, 169.

Temporary chief of bureau, 170.

Detail from another department, 171. During recess of the Senate, 172.

Term, 173.

Without extra pay, 174.

Departmental regulations, 175.

Improvement of business methods, 176. Closing departments in respect for deceased official, 177.

Draping public buildings in mourning, 178.
Use of Library of Congress, 1781.

Telegraph connection with the Capitol, 179.
Use restricted, 180.
Telephone service, 181.
Official register, 182.
Recording clocks, 183.
Membership fees, etc., 184.

Public records:

Forging, etc., 185.
False entries, 180.
Destroying, etc., 187.
By custodian, 188.
Useless papers, 189.

Publications:

Depositaries-

Department libraries, 190.
Public libraries, 191.

Distribution, 192.

Annual reports:

When to make, 193.

When to send to Public Printer, 194.

Unnecessary matter excluded, 195.
Penalty for failure to make, 196.

Estimates for appropriations:

Book of Estimates, 197.

When to submit, 198.

Responsible official, 199.

Arrangement, 200.

Manner of preparing, 201.

Outstanding appropriations, 202.

Variation from current appropriations,

203.

Special or additional, 204.

Forwarding, 205.

Statement of rented buildings, 206.

Statement of Government-owned build

ings, 207.

Public works, 208.
Fortifications, 209.

Insular possessions, 210.

Cable or telegraph lines in Alaska, 211. River and harbor improvements, 212.

Estimates for appropriations-Continued.

Printing and binding, 213.

Transportation, 214.

Trusses, 215.

Statement of salaries, 216.

Estimates for salaries, 217.

Soldiers' Homes, 218.
Inefficient employees, 219.
Appropriations of public money:

Made by statute and accounted for, 220.
Specifically made, 221.
Expenditure—

As specified, 222.

For commissions and inquiries, 223.
Not to exceed appropriations, 224.
For scientific investigations, 225.
Apportionment for monthly expenditures,
226.

Restricted to fiscal year, 227.
Fiscal year, 228.

Unexpended balance

Annual appropriations, 229.

Reported to Congress, 230.

Remaining after two years, 231. Reappropriations and diversion, 232. Reversion to special appropriationsProceeds of sales, 233.

Receipts from transfer of stores to
Philippine government, 234.

Deductions for loss or damage to stores
in transit, 235.

Bonds of disbursing officers:

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169. Temporary head of a department.-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. 177. See post. 488, act of Mar. 4, 1874 (18 Stat. 19), providing that the Secretary of War, when temporarily absent from the War Department, may authorize the chief clerk of the Department to sign requisitions on the Treasury Department and other papers.

Notes of Decisions.

Previous statutes. In the acts for the organization of the Departments of State. War, and Treasury, provision was made for the appointment of a subordinate officer, by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office, in case of vacancy in the office of the Secretary, and in the act establishing the Navy Department, provision was made likewise for the charge and custody of the books, records, and documents of that department, in case of vacancy in the office of Secretazy of the Navy. In re Hennen (1839), 13 Pet. 230, 259, 10 L. Ed. 138.

Presumption of authority.-Lawful exercise of authority by the assistant under this section is presumed. John Shillito Co. v. McClung (1892). 51 Fed. 868, 871, 2 C. C. A. 526; Chadwick v. U. S. (C. C. 1880), 3 Fed. 750, 756; U. S. v. Adams (C.

C. 1885), 24 Fed. 348, 350; In re Jem Yuen (D. C. 1910), 188 Fed. 350; Ex parte Tsuie Shee (D. C. 1914), 218 Fed. 256.

Signing instruments.-The signing of an instrument by the assistant of the head of a department, as acting secretary, implies that one of the conditions on which he was authorized to act in that capacity had arisen. Marsh v. Nichols, Shepherd & Co. (1888). 9 Sup. Ct. 168, 171, 128 U. S. 605, 32 L. Ed. 588.

When the secretary is absent or sick, if the assistant is in charge of the department, under this section, he should sign as acting secretary. (1888) 19 Op. Atty. Gen. 133.

"Absence."-" Constructive absence" of the head of the department is insufficient to permit an assistant to act. Ex parte Tsuie Shee (D. C. 1914), 218 Fed. 256.

170. Temporary chief of bureau. 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. 178.

Notes of Decisions.

Previous statute.-Act July 23, 1868, to authorize the temporary supplying of vacancies in the executive departments, sec. 2 of which was incorporated into this section, applied to existing vacancies. American Wood Paper Co. v. Glen's Falls Paper Co. (C. C. 1871), Fed. Cas. No. 321a.

Assistant or deputy within section.-The phrase "assistant or deputy of such chief," etc., in this section, is to be construed as including an assistant or deputy only whose appointment is specifically provided for by statute. (1890) 19 Op. Atty. Gen. 503.

In the absence of any specific provision for the assignment of an officer of the Navy to duty as assistant to the chief of a bureau in the Navy Department, such an officer, so assigned by the Secretary of the Navy under his general powers, is not au

thorized by this section to perform the duties of such chief in case of his death, resignation, absence, or sickness. Id.

Authority of acting officer.-The officer authorized, under this section, to perform temporarily the duties of the chief of a bureau, succeeds to and is to perform, not simply the duties of the absent chief which relate to that particular bureau, but all the duties of that chief which devolve upon him as such chief of the bureau. (1901) 23 Op. Atty. Gen. 473.

Presumption of authority.-A certificate issuing from the office of the Comptroller of the Currency, and under the seal of that office, given by one as "Acting Comptroller," held good. Keyser v. Hitz (1890), 10 Sup. Ct. 290, 293, 133 U. S. 138, 33 L. Ed. 531.

171. Temporary chief of bureau detailed from another Department. 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. 179.

The President was empowered to authorize and direct the commanding general of the Army or the chief of any military bureau of the War Department to perform the duties of the Secretary of War, under the provisions of this section, by act Aug. 5, 1882, sec. 1, post, 485.

Notes of Decisions.

Vacancies within section.-A vacancy in the office of Paymaster General, created by the retirement of the previous incumbent, may be filled by an ad interim appointment or assignment under the provisions of this section. Such retired officer may be said to be "absent" within the meaning of that section. (1890) 19 Op. Atty. Gen. 500.

No provision was made by R. S. 178181 (this compilation, 170-173) for temporarily filling a vacancy caused by the retirement of the chief of a bureau. (1909) 27 Op. Atty. Gen. 337.

Officers who may be designated to act.Officers of the Navy designated by the Secretary of the Navy to act in an advisory capacity to him, but without executive authority over the other bureaus or officers of the Navy Department, can not be legally designated by the President to act

as Secretary of the Navy during the absence or sickness of the Secretary or Assistant Secretary. (1909) 28 Op. Atty. Gen. 95.

Authority of acting officer.-An executive order under this section, authorizing the performance of the duties of a vacant office by another officer, devolves upon him all the duties appertaining to the office, including the acting as one of a board of commissions of which the absent officer, as such, was a member. (1892) 20 Op. Atty. Gen. 483.

Presumption of authority.-Lawful exercise of powers under this section presumed. In re Jem Yuen (D. C. 1910), 188 Fed. 350.

Signing instruments.-When the Secretary is absent or sick, if the assistant is in charge of the department, in pursuance of this section, he should sign as Acting Secretary. (1888) 19 Op. Atty. Gen. 133.

172. Temporary appointment during recess of Senate.-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. 181.

Notes of Decisions.

Filling of vacancy during recess of Senate not limited as to period.-The President has the right under the Constitution, and impliedly under this section, to make a temporary appointment, designation, or assignment of one officer to perform the duties of another in the case of a vacancy caused

by death, disability, or otherwise, during the recess of the Senate, and such temporary appointment, designation, or assignment is not limited by law to any particular period. (1904) 25 Op. Atty. Gen. 258.

173. Term of temporary appointments.-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. 180, as amended by act of Feb. 6, 1891 (26 Stat. 733).

For the three sections mentioned, see ante, 169, 170, 171.

The amendment of this section by act Feb. 6, 1891, cited above, consisted in the change of the period for which such a vacancy may be filled from "ten days," as provided in the original section, to "thirty days."

Notes of Decisions.

Vacancies to which limitation is applicable. The limitation by this section of the period for which vacancies occasioned by death or resignation should be temporarily filled applies as well where they are filled, under R. S. 177 or 178, ante, 169, 170, without action by the President, as where they are filled, under R. S. 179, ante, 171, by his authority and direction. (1883) 17 Op. Atty. Gen. 535.

Computation of period of limitation.-The period of limitation imposed by this section upon the temporary filling of vacancies occasioned by death or resignation is to be computed from the date of the President's action. (1878) 15 Op. Atty. Gen. 458.

Successive temporary appointments or reappointments to same vacancy.-Under this section and the three preceding sections referred to in it, the President has power to fill temporarily (by an appointment ad interim, as there prescribed), a vacancy occasioned by the death or resignation of the head of a department, or of the chief of a bureau therein, for the prescribed period only. When the vacancy is thus temporarily filled once for that period, the

power conferred by the statute is exhausted. It is not competent for the President to appoint either the same or another officer thereafter to perform the duties of the vacant office for an additional period. (1880) 16 Op. Atty Gen. 596; (1883) 17 Op. Atty. Gen. 530; (1884) 18 Op. Atty. Gen. 50, 58.

A vacancy in the head of a department can not be temporarily filled, either by operation of law or by designation of the President, for a longer period than that limited by this section. (1891) 20 Op. Atty. Gen. 8.

The view expressed in (1883) 17 Op. Atty. Gen. 535, that the discretionary power given the President by R. S. 179, ante, 171, might be exercised after the vacancy had already been supplied under the operation of either of the two preceding sections, and that the period of temporary occupancy might be lengthened by allowing the statutory occupation of the office, without designation, for the time allowed, followed by a designation by the President for an additional period, is not accepted. Id.

174. Temporary appointment without extra pay.-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 seventy-nine, is not by reason thereof entitled to any other compensation than that attached to his proper office. R. S. 182.

175. 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. 161.

Provisions authorizing each head of a department to alter the distribution of clerks among the various bureaus and offices, and to reduce the force employed, were made by R. S. 166, ante, 43, and act Aug. 15, 1876, sec. 3, ante, 51.

Heads of departments were required to make and enforce regulations to carry out the provisions of act Mar. 29, 1894, relating to the making of returns of public property, by sec. 4 of that act, post, 807.

Heads of departments were also required to make regulations to secure an administrative examination of accounts, before transmission to the Auditors of the Treasury, and for the execution of other requirements, 264, 266, post.

Notes of Decisions.

Making and requisites of regulations.Usages have been established in every part of the Government which have become a kind of common law and regulate the rights and duties of those who act within their respective limits. U. S. 1. Macdaniel (1833), 7 Pet. 1, 14, 8 L. Ed. 587. See Benson v. Henkel (1905), 25 Sup. Ct. 569, 571, 198 U. S. 1, 49 L. Ed. 919.

A decision of a department in a particular case being the opinion of the secretary upon the law and regulations as they existed is not in any sense a regulation under this section, and, though entitled to great respect and consideration by the Supreme Court, is not binding on the court as a valid regulation of the department. Smith v. U. S. (1898), 18 Sup. Ct. 626, 629, 170 U. S. 372, 380, 42 L. Ed. 1074.

Regulations for government of a depart ment need not be promulgated in any set form, nor in writing. Haas v. Henkel (1910), 30 Sup. Ct. 249, 254, 216 U. S. 462, 54 L. Ed. 569, 17 Ann. Cas. 1112.

The requirement by the department under whose authority an officer is acting, such as will make his action official, need not be prescribed by written rule or regulation. It may also be found in an established usage which constitutes the common law of the department and fixes the duties of those engaged in its activities. In numerous instances duties not completely defined by written rules are clearly established by settled practice. U. S. v. Birdsall (1914), 34 Sup. Ct. 512, 514, 233 U. S. 223, 58 L. Ed. 930.

A regulation of an executive department is a rule made by the head of the department for its action under an act of Congress conferring power so to do. An order of the President or of a secre tary of a department is not such a regu lation. Ilarvey v. U. S. (1867), 3 Ct. Cl. 38.

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Regulations founded upon a law of Congress will be recognized by the courts, and a conspiracy to avoid the requirements of regulations thus made is punishable under R. S. 5440 (see now sec, 37, Crim. Code, act of Mar. 4, 1909; 35 Stat. 1096). Curley v. U. S. (C. C. A. 1904), 130 Fed. 1, 11.

Regulations not to be inconsistent with law. The head of an executive department is limited in what he does by the law; but he need not show express statutory authority for an administrative detail incident to a power conferred. U. S. v. Macdaniel (1833), 7 Pet. 1, 14, 8 L. Ed. 587; Small v. U. S. (1909), 45 Ct. Cl. 13; (1911) 28 Op. Atty. Gen. 549.

A regulation adopted under this section should not be disregarded or annulled by the courts unless it is plainly and pal pably inconsistent with law. Boske v. Comingore (1900), 20 Sup. Ct. 701, 706, 177 U. S. 459, 44 L. Ed 846.

A regulation of an executive department must conform to the law, if a law exists upon the subject of the regulation. Symonds v. U. S. (1886), 21 Ct. Cl. 148.

A departmental regulation contrary to law is no regulation. Sherlock v. U. S. (1908), 43 Ct. Cl. 161.

The Secretary of the Treasury can not legally, by departmental order, change a practice or course of office procedure prescribed by statute for the settlement of accounts. (1888) 19 Op. Atty. Gen. 176. A regulation may supplement a statute, but can not supersede it. Roberts v. U. S. (1909), 44 Ct. Cl. 411.

Implied legislative ratification. When Congress permits the orders of an executive department to be formulated as regulations, and published, and carried into effect, the legislative ratification must be implied. Maddux v. U. S. (1885), 20 Ct. Cl. 193, 197.

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