CHAPTER II.

PROVISIONS APPLICABLE TO THE SEVERAL

EXECUTIVE DEPARTMENTS.

ize chief clerk to sign requi- 24. Transfer of duties to clerks of

19. Hours of labor in Executive 34. Chief clerks of Executive De

Application of provisions of this title.

Wilcox r. Jackson, 13 Pet., 512, 513.

Sec. 158, R. S.

Sec. 159, R. S

Word "Depart

ment.'

35. Per diem employees to receive 51. Department reports, when to
be furnished to printer.
52. Inventories of property.

pay for certain holidays.

36. Decoration Day.

37. Labor Day to be a public holi- 53. Biennial list of persons em

day.

38. Subpoenas to witnesses.

39. Witness fees.

40. Compelling testimony.

ployed in each Department

to be filed in the Interior Department.

54. Report of buildings rented.

41. Professional assistance, how 55. Report of employees who are

cers.

47. Aunual report of expenditure 60. Penalty envelopes for inclo

of contingent funds.

48. Annual estimates.

sure of answers to official communications.

49. Statement of condition of busi- 61. No contracts to be made for

ness to be submitted in esti-
mates.

50. Time of making annual re

ports.

rent of any building in Washington without appropriation therefor, etc.

5. The provisions of this title shall apply to the following Executive Departments:

First. The Department of State.
Second. The Department of War.
Third. The Department of the Treasury.
Fourth. The Department of Justice.
Fifth. The Post-Office Department.
Sixth. The Department of the Navy.

Seventh. The Department of the Interior.

The word "Department" when used alone in this title, and titles five, six, seven, eight, nine, ten, and eleven, means one of the Executive Departments enumerated in the preceding section.'

The titles so numbered in the Revised Statutes are the ones above referred to.

regulations.

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

6. The head of each Department is authorized to pre- Departmental scribe regulations, not inconsistent with law, for the gov- July 27, 1789, c. ernment of his Department, the conduct of its officers and 15, 17-9, c. 14, v. 1, clerks, the distribution and performance of its business, 1849, c. 7. v. 1. p. and the custody, use, and preservation of the records, pa- c. 12, v. 1. p. 65; pers, and property appertaining to it.'

p. 68; Aug. 7,

49; Sept. 2, 1789,

June 8, 1872. c. 335, v. 17, p. 283;

Apr. 30, 1798, c. 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.

The President speaks and acts through the heads of the several Executive Departments in relation to subjects which appertain to their respective duties. Wilcox t. Jackson, 13 Pet., 498, 513, Wolsey . Chapman, 191 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. 10 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. 7 d., 453. Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express ref erence to the direction of the President. 7 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 repre sentatives of the President, to whom they are responsible for their correct performance. For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory rules and regulations as Congress may see fit to impose. (See Marbury v. 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 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 v. U.S., 12 Pet., 524, 610.

*

Ministerial and discretionary duties. The duties performed by the heads of the seyeral 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 United States the President is invested with ecrtain important political powers in the exercise of which he is to use his own discretion, and is accountable only to Lis 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 e. Madison, 1 Cr., 137, 166; Kendall e. U. S., 12 Pet., 524, 611; Decatur r. Paulding. 14 Pet., 497, 515. We are not aware of any case in 1 ngland 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 judg ment. 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 v. Stokes, 3 How., 87, 98; 'Gould v. Hammond, 1 Me All, 235, 243; Noble e. 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 r. Madison, 1 Cr., 137: Kendall v. 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 mini

Vacancies;

how temporarily filled.

July 23, 1868, c.

TEMPORARY VACANCIES, HOW FILLED.

7. In case of the death, resignation, absence, or sickness of the head of any Department, the first or sole assistant 227, s. 1, v. 15, p. thereof shall, unless otherwise directed by the President, Sec. 177, R. S. as provided by section one hundred and seventy-nine [Rev. Stat., par. 10, post], perform the duties of such head until a successor is appointed, or such absence or sickness shall

168.

cease.

Secretary of 8. When, from illness or other cause, the Secretary of War may authorize chief clerk to War is temporarily absent from the War Department, he si:n requisi. tions, etc., in his may authorize the chief clerk of the Department to sign Mar. 4, 1874, v. requisitions upon the Treasury Department, and other

absence.

18, p. 19.

Vacancies in subordinate offices .

July 23, 1868, c.

168.

papers requiring the signature of said Secretary; the same, when signed by the chief clerk during such temporary absence, to be of the same force and effect as if signed by the Secretary of War himself. Act of March 4, 1874 (18 Stat. L., 19).

9. In case of the death, resignation, absence, or sickness of the chief of any Bureau, or of any officer thereof, whose 227, s. 2, v. 15, p. appointment is not vested in the head of the Department, Sec. 178, R. S. 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.

Discretion ary anthority of the

July 23, 1868, c.

10. In any of the cases mentioned in the two preceding President. sections, except the death, resignation, absence, or sick227, s. 3, v. 15, p. ness of the Attorney-General, the President may, in his 1870, c. 150, s. 2, v. discretion, authorize and direct the head of any other DeSec. 179, R. S. partment or any other officer in either Department whose

168; June 22.

16, p. 162.

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.

isterial acts, or omissions, to the injury of an individual. Marbury v. Madison, 1 Cr., 137, 166: Gaines r. 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 e. 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 com pelled 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 2. 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 e. Taylor, 2 McLean, 408. Pierce v. Strickland, 2 Story, 292. For general provisions respecting public officers, see Chapter IV and par. 4, ante.

168; Feb. 6, 1891, v. 26, p. 733.

general of the

form duties of

War.

22, p. 238.

pointments lim

days.

ited to thirty July 23, 1868, c.

11. The President may authorize and direct the com- Commanding manding general of the Army or the chief of any military Army, etc., may be designated by bureau of the War Department to perform the duties of President to perthe Secretary of War under the provisions of section one Secretary of hundred and seventy-nine of the Revised Statutes, and Aug. 5, 1882, v. section twelve hundred and twenty-two of the Revised Statutes shall not be held or taken to apply to the officer so designated by reason of his temporarily performing such duties. Act of August 5, 1882 (22 Stat. L., 238). 12. A vacancy occasioned by death or resignation must Temporary ap not be temporarily filled under the three preceding sections for a longer period than thirty days. Act of February 6, 1891 (26 Stat. L., 733). Sec. 180, R. S. 13. No temporary appointment, designation, or assign Restriction on ment of one officer to perform the duties of another, in the pointments. cases covered by sections one hundred and seventy-seven and one hundred and seventy-eight [Rev. Stat.], shall be made otherwise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate. 14. An officer performing the duties of another office, Extra compen during a vacancy, as authorized by sections one hundred lowed. and seventy-seven, one hundred and seventy-eight [Rev. 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.

CHIEF CLERKS-DISBURSING CLERKS.

15. 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.'

16. 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 business.

For authority to administer oaths of office see the act of August 29, 1890 (26 Stat. L. 371), par. 34, post.

temporary ap

July 23, 1868, c.

227, s. 2, v. 15, p.

188.

Sec. 181, R. S.

sation disal

July 23, 1868, c.

227, s. 3, v. 15, p.

168.

Sec. 182, R. S.

Chief clerks to dinate clerks. 202, s. 13, v. 5, p.

supervise subor

Aug. 26, 1842, c.

525.

Sec. 173, R. S.

Chief clerks to

distribute du

ties, etc.
Aug. 26, 1842, c.