CHAPTER 17 Heads of departments: Duties, 866. EXECUTIVE DEPARTMENTS Succession to Presidency, 867. Filling of temporary vacancies, 868. Annual reports Time of submission, 869. Reports on condition of public business, 871. Statements of receipts and expenditures, 872. Use of Library of Congress, 873. Efficiency, 874. Closing, in respect for a deceased ex-official, 875. Hours for transaction of public business, 876. Legal advice to War and Navy Depart ments, 877. Legal services: General provision, 878. Opinions of Attorney General, 879. Counsel to investigate claims, 880. Official records: Access by Bureau of the Budget, 881. Official records-Continued. Access by Bureau of Efficiency, 883. Disposition when no longer required, 888. Regulations, 888. War Department: Establishment, 889. Temporary performance of duties, 891. Annual reports of strength of the Army, Annual reports of finances, 895. The Assistant Secretary of War; duties, Additional Assistant Secretary of War; appointment and compensation, 898. Assistant and chief clerk; appointment and duties, 899. War Council, 900. 866. Heads of departments; duties.-Each head of a department, chief of a bureau, or other superior officer, shall, upon receiving each monthly report of his chief clerk, rendered pursuant to the preceding 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. R. 8. 175; U. 8. C. 5: 25. For preceding section, see 629, ante. 867. Same; succession to Presidency. That in case of removal, death, resignation, or inability of both the President and Vice President of the United States, the Secretary of State, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Treasury, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of War, or if there be none, or in case of his removal, death, resignation, or inability, then the Attorney General, or if there be none, or in case of his removal, death, res gnation, or inability, then the Postmaster General, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Navy, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Interior, shall act as President until the disability of the President or Vice President is removed or a President shall be elected: Provided, That whenever the powers and duties of the office of President of the United States shall devolve upon any of the persons named herein, if Congress be not then in session, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of the time of meeting. Sec. 1, act of Jan. 19, 1886 (24 Stat. 1); U. S. C. 3: 21. That the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named, and such as are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively. Sec. 2, act of Jan, 19, 1886 (24 Stat. 2); U. S. C. 3: 22. 868. Heads of departments and chiefs of bureaus; filling of temporary vacancies. 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; U. S. C. 5: 4. 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; U. S. C. 5: 5. 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; U. S. C. 5: 6. 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); U. S. C. 5: 7, 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; U. S. C. 5: 8. 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; U. S. C. 5: 9. During the absence of the Quartermaster General, or the chief of any military bureau of the War Department, the President is authorized to empower some officer of the department or corps whose chief is absent to take charge thereof, and to perform the duties of Quartermaster General, or ch ́ef of the department or corps, as the case may be, during such absence. R. S. 1132, as amended by act of Feb. 27, 1877 (19 Stat. 242); V. S. C. 10: 7. See post, 899, 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 derk of the department to sign requisitions on the Treasury Department and other papers. The last paragraph of this section, as enacted in the Revised Statutes, prescribed the organization of the Quartermaster's Department authorized by R. S. 1094. It contains the substance of sec. 5 of the act of July 4, 1836 (5 Stat. 117), which was passed in order to enable Q. M. Gen. Thos. S. Jesup to exercise command of the troops engaged in the prosecution of the Florida war. Gen. Jesup served under this assignment from May 19, 1836, to July 7, 1838, when he resumed the performance of his duties as Quartermaster General in the War Department. It was superseded by the different provisions relating to the same subject of act of Mar. 3, 1875 (18 Stat. 338); but thereafter it was amended by sec. 1, act of Feb. 27, 1877 (19 Stat. 242), by the addition of a provision that all appointments in the department should be made from the Army, and of the further provision set forth here. Appointments from civil life to fill vacancies in the department were authorized by a provision of act of Mar. 3, 1883 (22 Stat. 457), thus superseding the first provision added by the amendment. These and subsequent provisions relating to the department were superseded by sec. 16, act of Feb. 2, 1901 (31 Stat. 751), by secs. 3, 4, act of Aug. 24, 1912 (37 Stat. 591), by act of Mar. 4, 1915 (38 Stat. 1066), and by sec. 9, act of June 3, 1916 (39 Stat. 170), which was stricken out by sec. 9, act of June 4, 1920 (41 Stat. 766). 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, 891. Notes of Decisions Previous statutes.-In the acts for the organizations 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 Secretary of the Navy. In re Hennen (1839), 13 Pet. 230, 259. Act of 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. Presumption of authority.-Lawful exercise of authority by the assistant under the section is presumed. John Shillito Co. v. McClung (1892), 51 Fed. 868, 871; 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. 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), 133 U. S. 138. 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), 128 U. S. 605. 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. The Assistant Postmaster General may, it has been held, sign a fraud order. Crane v. Nichols (D. C. 1924), 1 F. (24) 33. "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. 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 authorized by this section to perform the duties of such chief in case of his death, resignation, absence, or sickness. Id. 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. 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. 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 section) for temporary filling of 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. 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. 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 (this section), without action by the President, as where they are filled, under R. S. 179, by his authority and direction. (1883) 17 Op. Atty. Gen. 535. Computation of period of limitation.-The period of limitation imposed by this seetion 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. of a Successive temporary appointments or reappointments to same vacancy.-Under R. S. 177-180 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 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 Presi dent 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 op eration 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 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. Where a vacancy occurs in the office of Secretary of State, it can not be temporarily filled for a longer period than 30 days, either by statutory succession or by designation of the President. Subsequent to such temporary occupancy of said office and prior to confirmation by the Senate of a successor nominated for the office, it would be safer for the officers of the Department of State not to take action in any case out of which legal rights might arise which would be subject to review by the courts. (1920) 32 Op. Atty. Gen. 139. 869. Heads of departments, annual reports; time of submission.-Except where a different time is expressly prescribed by law, the various annual reports required to be submitted to Congress by the heads of departments shall be made at the commencement of each regular session, and shall embrace the transactions of the preceding year. R. S. 195; U. S. C. 5: 106. That appropriations herein and hereafter made for printing and binding shall not be used for any annual report or the accompanying documents unless the copy therefor is furnished to the Public Printer in the following manner: Copies of the documents accompanying such annual reports on or before the fifteenth day of October of each year; copies of the annual reports on or before the fifteenth day of November of each year; complete revised proofs of the accompanying documents and the annual reports on the tenth and twentieth days of November of each year, respectively; and all of said annual reports and accompanying documents shall be printed, made public, and available for distribution not later than within the first five days after the assembling of each regular session of Congress. The provisions of this section shall not apply to the annual reports of the Smithsonian Institution, the Commissioner of Patents, or the Comptroller of the Currency. Sec. 3, act of July 1, 1916 (39 Stat. 336); U. S. C. 5: 108. A large number of annual reports and statements hitherto required to be made to Congress are no longer required by reason of specific mention in sec. 1, act of May 29, 1928 (45 Stat. 986). 870. Same; printing. * Heads of executive departments shall direct whether reports made to them by bureau chiefs and chiefs of divisions shall be printed or not. * Sec. 89, act of Jan. 12, 1895 (28 Stat. 623); U. S. C. 44: 213. In order to keep the expenditures for printing and binding for the fiscal year 1930 within or under the appropriations for such fiscal year, the heads of the various executive departments and independent establishments are authorized to discontinue the printing of annual or special reports under their respective jurisdictions: Provided, That, where the printing of such reports is discontinued, the original copy thereof shall be kept on file in the offices of the heads of the respective departments or independent establishments for public inspection. Sec, 1, act of Feb. 28, 1929 (45 Stat. 1402), making appropriations for legislative branch of the Government. A provision similar to second paragraph has appeared in prior appropriation acts. 871. Same; reports on condition 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 year 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. Sec. 5, act of Mar. 3, 1893 (27 Stat. 715), as amended by sec. 7, act of Mar. 15, 1898 (30 Stat. 317), making appropriations for legislative, executive, and judicial expenses; U. S. C. 5: 32. 872. Same; statements of receipts and expenditures.-Hereafter the Secretary of the Treasury shall require, and it shall be the duty of the head of each executive department or other Government establishment to furnish him, within thirty days after the close of each fiscal year, a statement of all money arising from proceeds of public property of any kind or from any source other than the postal service, received by said head of department or other Government establishment during the previous fiscal year for or on account of the public service, or in any other manner in the discharge of his official duties other than as salary or compensation, which was not paid into the General Treasury of the United States, together with a detailed account of all payments, if any, made from such funds during such year. All such statements, together with a similar statement applying to the Treasury Department, shall be transmitted by the Secretary of the Treasury to Congress at the beginning of each regular session. Sec. 5, act of June 30, 1906 (34 Stat. 763), making appropriations for sundry civil expenses; U. S. C. 31: 626. |