Taking oaths, 160. In all cases in which under the laws of the United acknowledgments, etc. Sept. 16, 1850, c. July 29, 1854, c. States oaths or acknowledgments may now be taken or 52. v. 9, p. 458 made before any justice of the peace of any State or Terri159, s. 1, v. 10, p. tory, or in the District of Columbia, they may hereafter be e. 390, s. 20, v. 18, also taken or made by or before any notary public duly 315; June 22, 1874, p. 186; Aug. 15, p. 206. 1876, c. 304, v. 19, appointed in any State, district, or Territory, or any of the Sec. 1778, R.S. commissioners of the circuit courts, and when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace. to administer free. Chief clerks of 161. The chief clerks of the several Executive DepartExecutive Departments, etc., ments and of the various bureaus and offices thereof in oath of office Washington, District of Columbia, are hereby authorized Aug. 29, 1890, v. and directed, on application and without compensation therefor, to administer oaths of office to employees required to be taken on their appointment or promotion. Act of United States August 29, 1890 (26 Stat. L., 371). United States com 26, p. 371. commissioners administer oaths. and clerks may missioners and all clerks of United States courts are author. May 28, 1896, s. ized to administer oaths.' Act of May 28, 1896 (29 Stat. L., 184). 19, v. 29, p. 184. Custody of oath. 128, v. 12, p. 502. 162. The oath of office taken by any person pursuant to July 2, 1862, c. the requirements of section seventeen hundred and fiftySec. 1759, R.S. six, or of section seventeen hundred and fifty-seven, shall be delivered in by him to be preserved among the files of the House of Congress, Department, or court to which the office in respect to which the oath is made may appertain. SALARIES DOUBLE SALARIES. Par. 163. No payments to recess appointees. 164. Recess appointments. 165. No payment to officers holding over. 166. Double salaries. Unauthorized office, no salary for. Par. 167. Holding two offices. 168. Compensation for extra service. 170. Pay of officers in arrears. 163. No money shall be paid from the Treasury to any Feb. 9, 1863, c.person acting or assuming to act as an officer, civil, mili25, s. 2, v. 12, Ptary, or naval, as salary, in any office when the office is not Sec. 1760, R. S-authorized by some previously existing law, unless such office is subsequently sanctioned by law." 646. 1 See III. Comp., Dec., 65. 2 3 Repealed by the act of May 13, 1884 (23 Stat. L., 22). An officer who is authorized to receive compensation "while necessarily employed" only must produce satisfactory evidence of his employment, and the necessity therefor, during the period for which he claims compensation. IV Compt. Dec., 424. certain appoint cies during re 164. No money shall be paid from the Treasury, as salary, No salaries to to any person appointed during the recess of the Senate ees to fill vacanto fill a vacancy in any existing office, if the vacancy ex- cess of Senate. isted while the Senate was in session and was by law re- 25, s. 2, v. 12, p. quired to be filled by and with the advice and consent of Sec. 1761, R. S. the Senate, until such appointee has been confirmed by the Senate. Feb. 9, 1863, c. 646. cers improperly 431. Mar. 2, 1867, c. 165. No money shall be paid or received from the Treas- Salaries to offiury, or paid or received from or retained out of any public holding over. moneys or funds of the United States, whether in the Treas- 154, s. 9, v. 14, p. ury or not, to or by or for the benefit of any person ap- Sec. 1762, R. S. pointed to or authorized to act in or holding or exercising the duties or functions of any office contrary to sections seventeen hundred and sixty seven to seventeen hundred and seventy, inclusive; nor shall any claim, account, voucher, order, certificate, warrant, or other instrument providing for or relating to such payment, receipt, or retention be presented, passed, allowed, approved, certified, or paid by any officer, or by any person exercising the functions or performing the duties of any office or place of trust under the United States, for or in respect to such office or the exercising or performing the functions or duties thereof. Every person who violates any of the provisions of this section shall be deemed guilty of a high misdemeanor, and shall be imprisoned not more than ten years, or fined not more than ten thousand dollars, or both. Double sala. v. 10, p. 100. See.1763, B.S. offices by per sons receiving $2,500 forbidden. Sec. 2, July 31, 1891, v. 28, p. 205. 166. No person who holds an office the salary attached res to which amounts to the sum of two thousand five hundred 18 Aug. 31, 1852, s. dollars shall receive compensation for discharging the duties of any other office, unless expressly authorized by law. 167. No person who holds an office the salary or annual Holding two compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers Retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office, by and with the advice and consent of the Senate.1 Sec. 2, act of July 31, 1894 (28 Stat. L., 205). excepted. The traditions and usages of the United States recognize the policy and propriety of employing, when necessary, the same person at the same time in two distinct capacities. Not to mention other familiar cases, there are the prominent examples of the diplomatic mission of Mr. Jay to England, under President Washington, while H. Doc. 545-5 no compensation cially authorized by law. Extra services, 168. No allowance or compensation shall be made to any for, except espe- officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other c. 202, s. 12, v. 5, p. Department; and no allowance or compensation shall be Sec. 1764, R.S. made for any extra services whatever, which any officer or Aug. 26, 1842, 525. clerk may be required to perform, unless expressly authorized by law.1 he was still Chief Justice of the United States; of the mission of Mr. Gallatin to London and St. Petersburg, to negotiate a peace, while Secretary of the Treasury under President Madison; and of Mr. Justice Nelson, sitting as a member of the commission which concluded the treaty of Washington, under President Grant. On the other hand, it is the undoubted aim of general legislation respecting salaries to gauge the work so as to give full employment to the capacities of the man likely to be appointed to do it, and to measure the pay according to the work. In construing statutes restraining the Executive from giving dual or extra compensation, courts have aimed to carry out the legislative intent by giving them sufficient flexibility not to injure the public service and sufficient rigidity to prevent Executive abuse. Landram v. U. S., 16 Ct. Cls., 74, 82. The great object has been to establish by law the compensation for public services, whether in offices or agencies, where the nature and character of the duties to be performed were sufficiently known and definite to enable Congress to form an estimate of its value, and not leave it to the discretion of the head of an Executive Department. These sections "can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place and the amount of compensation is regulated by law. The just and fair inference from these acts of Congress taken together is that no discretion is left to the head of a Department to allow an officer, who has a fixed compensation, any credit beyond his salary, unless the service he has performed is required by existing laws and the remuneration for them is fixed by law." Converse v. U. S., 21 How., 463, 470, 473; U. S. v. Brindle, 110 U. S., 688, 694; U. S. r. Shoemaker, 7 Wall., 338; Meigs v. U. S., 19 Ct. Cls., 497; XV Opin. Att. Gen., 608; 1 Compt. Dec., 286; 2 ibid., 33; Crosthwaite v. U. S., 30 Ct. Cls., 300. * * * * * * A question having arisen as to the payment of a per diem to the members and certain employees of the Bering Sea Tribunal of Arbitration, it was held: As to Justice Harlan and Senator Morgan, that the terms of section 1763 of the Revised Statutes, as amended by the act of July 31, 1894 (28 Stat. L., 205), did not apply, as they had been appointed to separate and distinct offices not incompatible with the offices of justice of the Supreme Court, Senator of the United States, and retired judge. Payments to them were therefore allowed. U. S. . Saunders, 120 U. S., 126. As to Senator Morgan, it was held that membership of a tribunal of arbitration did not constitute the holding of office under the authority of the United States under Article I, section 6, of the Constitution, and that Senator Morgan was not thereby prohibited from sitting thereon. The payment of per diem allowances to clerks and other regular employees of the United States, who had been detailed from the several Executive Departments to assist the tribunal in its labors, was held to be unauthorized under section 1765 of the Revised Statutes. Held, under this section, that a major and paymaster in the Army, detailed as disbursing officer of the Bering Sea Tribunal of Arbitration at Paris, could not receive any other allowances or emoluments than those specified in this section as allowable to officers of the Army. Compt. Dec., 1893-94, 275. A compensation for extra services, where no certain allowance is fixed by law, can not be paid by the head of a Department to any officer of the Government who has, by law, a certain compensation in the office he holds. X Opin. Att. Gen., 31. The various provisions of law forbidding extra allowance or additional pay for extra service imply extra-service pay or allowance in the same office, not distinct service in distinct offices. VIII Opin. Att. Gen., 325. Where the service is one required by law, but not of any particular official, and compensation therefor is fixed by competent authority, and is appropriated, any officer who, under due authorization, performs the service is entitled to the compensation. XV Opin. Att. Gen., 608. See also Converse, admr., v. U. S., 21 How., 463; U. S. r. Shoemaker, 7 Wall., 338; Stansbury . U. S., 8 Wall., 33; XIX Opin. Att. Gen., 121. But see for exception, section 7, act of June 3, 1896 (29 Stat. L., 235). 1 Stansbury r. U. S., 8 Wall., 33. Extra allow ances. 82, s. 3. v. 5, p. 349; 183, s. 2, v. 5, p. Sec. 1765, R.S. 169. No officer in any branch of the public service, or any other person whose salary," pay," or emoluments are) Mar, 3, 1839, c. fixed by law or regulations, shall receive any additional Aug. 23, 1842, c. pay, extra allowance, or compensation, in any form what-510. ever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.3 4 Officer in ar rears. 2, v. 4, p. 246, May 20, 1836, c. 77, v. 5, p. 31. 170. No money shall be paid to any person for his compensation who is in arrears to the United States, until he, Jan. 25, 1828, c. has accounted for and paid into the Treasury all sums for which he may be liable. In all cases where the pay or salary of any person is withheld in pursuance of this section, the accounting officers of the Treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the Solicitor of the Treasury the balance due, and the Solicitor shall, within sixty days thereafter, order suit to be commenced against such delinquent and his sureties." returns or re 171. Every officer who neglects or refuses to make any Failure to make return or report which he is required to make at stated ports. 'An officer is one who is invested with an office, and an office is authority, granted by law, to exercise a function of Government. An employee is one who is employed under a contract to perform personal service. An office is distinguished from a public employment by the fact that in the one case the authority to perform a public service is derived from the law, while in the other it is derived from a contract. IV Compt. Dec., 696. 2 Salary is fixed when it is at a stipulated rate for a definite period of time; pay or emolument is fixed when the amount is agreed upon and the service is defined. Hedrick . U. S., 16 Ct. Cls., 88. 3 See note to paragraph 167 supra. The provisions of section 1765, Revised Statutes, which prohibit the payment of additional compensation, apply to two classes of persons only, viz, officers in the public service and employees whose compensation is fixed by law or regulations. IV Compt. Dec. 696. See, also, ibid., 424. The phrase "who is in arrears to the United States," contained in the act of January 25, 1828 (sec. 1766, Revised Statutes), applies only to persons who, having had previous transactions of a pecuniary nature with the Government, are found, upon the settlement of those transactions, to be in arrears. III Opin. Att. Gen., 52. Where an officer of the Army assigned his pay accounts in payment of certain indebtedness, which accounts the Paymaster-General declined to pay, for the reason that, on the maturity thereof, the officer was in arrears to the United States; held that the refusal of the Paymaster-General was in accordance with section 1766 of the Revised Statutes. XVII Opin. Att. Gen., 30. "See, as to effect on sureties, XX ibid., 447. This section does not apply to original vacancies. XVIII ibid., 28; see, also, XVII ibid., 476. 201, s. 42, v. 14, p. 188. Sec. 1780, R. S. July 18, 1866, c. times by any act of Congress or regulation of the Department of the Treasury, other than his accounts, within the time prescribed by such act or regulation, shall be fined not more than one thousand dollars and not less than one hundred. Political assess ments. ii, v. 22, p. 403. 8. 172. No Senator, or Representative, or Territorial DeleJan, 16, 1883, s. gate of the Congress, or Senator, Representative, or Delegate elect, or any officer or employee of either of said Houses, and no executive, judicial, military, or naval officer of the United States, and no clerk or employee of any Department, branch, or bureau of the executive, judicial, or military or naval service of the United States, shall, directly or indirectly, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever from any officer, clerk, or employee of the United States, or any Department, branch, or bureau thereof, or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States. Sec. 11, act of January 16, 1883 (22 Stat. L., 403). Soliciting contributions for po forbidden. Sec. 12, ibid. 173. No person shall, in any room or building occupied litical purposes in the discharge of official duties by any officer or employee of the United States mentioned in this act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of value for any political purpose whatever. 12. ibid. Change of rank or compensation Sec. 174. No officer or employee of the United States menSec. 13, ibid. tioned in this act shall discharge, or promote, or degrade, or in any manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.' Sec. 13, ibid. Political contributions forbid den. Sec. 14, ibid. 175. No officer, clerk, or other person in the service of the United States shall, directly or indirectly, give or hand over to any other officer, clerk, or person in the The rules promulgated by the President on November 2, 1896, providing for certain classifications and exceptions, and regulating promotions in the civil service, do not regulate removals from office, except for political or religious opinions or affiliations. Carr v. Gordon, 82 Fed. Rep., 373. The civil-service law does not prohibit removal or discharge, except for giving, withholding, or neglecting to make contributions of money for political purposes. Morgan e. Nunn, 84 Fed. Rep., 551. The power of removal is a purely executive power which is not intrusted to the judicial branch of the Government. Keim . U. S., 33 Ct. Cls., 174. |