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Sec. 180, R. S.

Restriction on temporary ap.

July 23, 1868, c.

so designated by reason of his temporarily performing such

duties. Act of August 5, 1882 (22 Stat. L., 238). Temporary ap- 17. A vacancy occasioned by death or resignation must pointments limStends to thirty not be temporarily filled under the three preceding sections July 23, 1868, c. for a longer period than thirty days. Act of February 6, 227 : lốp 1891 (26 Stat. L., 733).

168; Feb. 6, 1891, v. 26, p. 733. 18. No temporary appointment, designation, or assignpointments. ment of one officer to perform the duties of another, in the 227, s. 2, v. 15, p. cases covered by sections one hundred and seventy-seven Sec. 181, R. S. and one hundred and seventy-eight,' shall be made other

wise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate.

19. An officer performing the duties of another office,

during a vacancy, as authorized by sections one hundred 227, s. 3, v. 15, p. and seventy-seven, one hundred and seventy-eight [Rev. Sec. 182, R. S. Stat.], and one hundred and seventy-nine (ibid.), is not by

reason thereof entitled to any other compensation than that attached to his proper office.

Extra compensation disallowed.

July 23, 1868, c.


Departmental regulations.

4, v. 1, p. 28; Sept.

20. The head of each Department is authorized to preJuly 27, 1789.C. scribe regulations, not inconsistent with law, for the gov15, 1789, C11; ernment of his Department, the conduct of its officers and 1319.c.7. 1. p. clerks, the distribution and performance of its business, G. 112, 1. p. 65; and the custody, use, and preservation of the records, pa30:22; pers, and property appertaining to it."

35, v. 1, p. 553; June 22, 1870, c. 150, s. 8, v. 16, p. 163; Mar. 3, 1849, c. 108, v. 9, p. 395.

Sec. 161, R. S.

Sections 177 and 178. Revised Statutes: paragraphs 13 and 14, ante. 2 The President speaks and acts through the heads of the several. Executive Departments in relation to subjects which appertain to their respective duties. Wilcox 1. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755. It is the general theory of departmental administration that the heads of the Executive Departments are the executors of the will of the President. X Opin. Att. Gen., 527. As a general rule the direction of the President is to be presumed in all instructions and orders issuing from the competent Department. VII id., 453. Official instructions issued by the heals of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express reference to the direction of the President. VII id., 453. The duties of the heads of the several Executive Departments are derived, in part, from the Constitution, and are, in part, imposed by statute. In the execution of the former they act as the representatives of the President, to whom they are responsible for their correct perform

For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory les and regulations as Congress may see fit to impose. (See Marbury r. Madison, 1 Cr., 137, and par. 1, note 1.)

The executive power is vested in a President, and so far as his powers are derived from the Constitution he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power, but it by no means follows that every officer in every branch of that Department is under the exclusive direction of the President.

There are certain political duties imposed upon many officers in the Executive Department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think






Par. 21. Duties of chief clerks.

23. Action on report. 22. To distribute clerical duties; monthly 24. Disbursing clerks; duties and comreports.

pensation 21. Each chief clerk in the several Departments, and chief clerks to Bureaus, and other offices connected with the Departments, dinate clerks.

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proper, which is not repugnant to any rights secured and protected by the Constitution, and in such cases the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the President, and this is emphatically the case where the duty is of a ministerial character. Kendall 1: V. S., 12 Pet., 524, 610. See, also, the title Army Regulations in the chapter entitled The REVISED STATUTES; THE STATUTES AT LARGE; THE ARMY REGULATIONS.

Ministerial and discretionary duties.- The duties performed by the heads of the several Executive Departments are either ministerial or discretionary or quasi judicial in character. “The question whether the legality of an act of the head of a Department be examinable in a court of justice or not must always depend on the nature of the act. By the Constitution of the Cnited States the President is invested with certain important political powers in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity to his orders. In such cases their acts are his acts, and, whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control their discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the Executive, the decision of the Executive is conclusive.

The conclusion is that where the heads of Departments are the political or confidential agents of the Executive, merely to execute the will of the President, nothing can be more perfectly clear than that their acts are only politically examinable. Marbury 1. Madison, 1 Cr., 137, 166; Kendall v. U. S., 12 Pet., 524, 611; Decatur r. Paulding, 14 Pet., 497, 515. We are not aware of any case in England or this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable for an error of judgment. * A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. Kendall r. Stokes, 3 How., 87, 98; Gould v. Hammond, 1 McAll., 235, 243; Noble v. Union River Logging Co., 147 U. S., 165, 171.

A ministerial duty the performance of which may in proper cases be required of the head of a Department by judicial process is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. Mississippi r. Johnson, 4 Wall., 475, 498; Marbury v. Madison, 1 Cr., 137; Kendall 7. Stockton, 12 Pet., 524. As a mandamus can only be granted because there is no other adequate remedy at law, an action for damages can not be afterwards sustained for the same cause of action, the two being inconsistent. Kendall v. Stokes, 3 How., 87, 102.

Liability for damages.—The executive officers of the United States are personally liable at law for damages, in the ordinary forms of action, for illegal official or ministerial acts or omissions to the injury of an individual. Marbury v. Madison, 1 Cr., 137, 166; Gaines v. Thompson, 7 Wall., 347; Amy v. The Supervisors, 11 Wall., 136, 137, 166. Where a ministerial officer acts in good faith he is not liable in exemplary damages for an injury done, but he can claim no further exemption where his acts are clearly against the law. Tracy v. Swartwout, 10 Pet., 80.

Measure of damages.—Where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. A mistake as to his duty and honest intentions will not excuse the offender. Amy. r. The Supervisors, 11 Wall., 136. Where an action is brought for an injury done in the discharge of an official duty, the damages are measured generally by the extent of that injury. Bispham v. Taylor, 2 Mclean, 408. Pierce v. Strickland, 2 Story, 292. For general provisions respecting.public officer, see Chapter IV and par. 4, ante.

202, s. 13, v. 5, P. 525,

Chief clerks to distribute duties, etc.

Aug. 26, 1842, c.

Duty of chief


Aug. 26, 1812, c.

Aug, 26,1812, 6. shall supervise, under the direction of his immediate supe

rior, the duties of the other clerks therein, and see that Sec. 173, R. S.

they are faithfully performed."

22. Each chief clerk shall take care, from time to time,

that the duties of the other clerks are distributed with 302, s. 13, v. 5, p. equality and uniformity, according to the nature of the Sec. 174, R. S. 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.

23. Each head of a Department, chief of a Bureau, or on receipt of re

other superior officer, shall, upon receiving each monthly 202

, s. 13, v. 5, p. report of his chief clerk, rendered pursuant to the precedSec. 175, K. s. ing 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. Disbursing 24. The disbursing clerks authorized by law in the Mar. 3, 1853, c. several Departments shall be appointed by the heads of 200, 211Mar.">; the respective Departments, from clerks of the fourth 10, p. 669; Mar. class; and shall each give a bond to the United States for V. 17, p. 485 492): the faithful discharge of the duties of his office according Sec. 176, R. S.

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 Compensation. 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.


For authority of chief clerks to administer oaths of office, see the act of August 29, 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk of the War Department, see paragraphs 22, 23, and 134 post.




25. Authority to employ.

29. Voluntary service prohibited. 26. Restriction on employment.

30. Civil pension roll prohibited. 27. Payments from specific appropria- 31. Payment of incapacitated persons.

tions. 28. Employees elsewhere not to be de

tailed in Washington. 25. Each head of a Department is authorized to employ Authority to in his Department such number of clerks of the several and other emclasses recognized by law, and such messengers, assistant Mar. 3, 1875, c. messengers, copyists, watchmen, laborers, and other em- 361, 365 . 130,

ss. 2, 3, v. 18, P. ployees, and at such rates of compensation, respectively, 319.

Sec. 169, R. S. as may be appropriated for by Congress from year to year.'

26. The executive officers of the Government are hereby Employing prohibited from employing any clerk, agent, engineer, rond provisions draughtsman, messenger watchman, laborer, or other em- Sec. 5, Aug. 15,

1876, v. 19, p. 169. ployee, in any of the Executive Departments in the city of Washington, or elsewhere beyond provision made by law." Sec. 5, act of August 15, 1876 (19 Stat. L., 169). 27. No civil officer, clerk, draughtsman, copyist, mes- be paid from spe

appropriasenger, assistant messenger, mechanic, watchman, laborer, tions or other employee shall, after the first day of October next, 1892, v. 22, p.25. be employed in any of the Executive Departments, or subordinate bureaus or offices thereof at the seat of Government, except only at such rates and in such numbers, respectively, as may be specifically appropriated for by Congress for such clerical and other personal services for each fiscal year; and no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall hereafter be employed at the seat of Government in any Executive Department or subordinate bureau or office thereof or be paid from any appropriation made for contingent expenses, or for any specific or general purpose, unless such employment is authorized and payment therefor specifically provided in the law granting the appropriation, and then only for services actually rendered in connection with and for the purposes of the appropriation from which payment is made, and at the rate of compensation usual and proper for such services.

. 4, 5,

For authority of chief clerks to administer oaths of office, see the act of August 29, 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk of the War Department, see paragraphs 22, 23, and 134 post.

? For rules regulating the procurement of services in the several Executive Departments see, in Chapter IV, the title The Civil Service.

H. Doc. 545 -2

Civil officers, etc., elsewhere

trict of Columbia.

R. S. 172 repealed.

Prohibition of voluntary seryice.

May 1, 1874, v. 23, p. 17.

28. After the first day of October next section one hunemployed, not to dred and seventy-two of the Revised Statutes, and all other duty in the Dis laws and parts of laws inconsistent with the provisions of

this act, and all laws and parts of laws authorizing the employment of officers, clerks, draughtsmen, copyists, messengers, assistant messengers, mechanics, watchmen, laborers, or other employees at a different rate of pay or in excess of the numbers authorized by appropriations made by Congress, be, and they are hereby, repealed; and thereafter all details of civil officers, clerks, or other subordinate employees from places outside of the District of Columbia for duty within the District of Columbia, except temporary details for duty connected with their respective offices, be, and are hereby, prohibited; and thereafter all moneys accruing from lapsed salaries, or from unused appropriations for salaries, shall be covered into the Treasury.' Sec. 4, act of August 5, 1882 (22 Stat. L., 255).

29. Hereafter no Department or officer of the United States shall accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. Act of

May 1, 1874 (23 Stat. L., 17). Civil pension 30. The establishment of a civil pension roll, or an honroll prohibited.

Feb 21, 1899, v. orable service roll, or the exemption of any of the officers, 30, p. 816.

clerks, and persons in the public service from the existing laws respecting employment in such service is hereby pro

hibited. Act of February 24, 1899 (30 Stat. L., 846). Payment

31. The appropriations herein made for the officers, be to this incapuci clerks, and persons employed in the public service shall

The act of August 5, 1882 (22 Stat. L. 255), contained the following provisos: “That the sums herein specifically appropriated for clerical or other force heretofore paid for out of general or specitic appropriations may be used by the several heads of Departments to pay such force until the said several heads of Departments shall have adjusted the said force in accordance with the provisions of this act; and such a.ljustment shall be effected before October first, eighteen hundred and eightytwo. And in making such adjustment the employees herein provided for shall, as far as may be consistent with the interests of the service, be apportioned among the several states and Territories according to population: Prorided further, That any person performing duty in any capacity as officer, clerk, or otherwise in any Department at the date of the passage of this act who has heretofore been paid from any appropriation made for contingent expenses or for any contingent or general purpose, and whose office or place is specifically provided for herein, under the direction of the head of that Department, may be continued in such office, clerkship, or employment without a new appointment thereto, but shall be charged to the quotas of the several States and Territories from which they are respectively appointed, and nothing herein shall be construed to repeal section 106 of the Revised Statutes of the l'nited States." See also 3 Dig. Dec. 2nd Compt., par. 82.

2 Section 2 of the act of June 2, 1900 (31 Siat. L., 261), contained a similar requirement.

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