Sec. 6, act of Mar. 4, 1915 (38 Stat. 1049), making appropriations for legislative, executive, and judicial expenses. The statutory roll for each bureau, etc., is fixed annually by the terms of the legislative, executive and judicial act in providing appropriations for respective departments, etc. 30. Authority to employ.-Each head of a Department is authorized to employ in his Department such number of clerks of the several classes recognized by law, and such messengers, assistant messengers, copyists, watchmen, laborers, and other employés, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year. R. S. 169. The clerks and other employees in the several departments at the time of the enactment of the Revised Statutes were enumerated in the sections relating to each: In the War Department, R. S. 215, post, 487. But the officers, clerks, etc., actually appointed or employed are those for whom specific provision is made in the appropriation acts from year to year; the employment or payment of others being forbidden by act of August 5, 1882, post, 33. Notes of Decisions. Authority to appoint and remove.-The word employ," in this section, is regarded as the equivalent of "appoint." (1896) 21 Op. Atty. Gen. 355, 363. Departmental clerks, messengers, and laborers are to be appointed and removed by the head of the department, when not otherwise provided by statute. This power, being discretionary in character, can not be delegated, but must be exercised by the Secretary or Acting Secretary. (1897) 21 Op. Atty. Gen. 535. The power of suspension is an incident of the power of removal. Burnap v. U. S. (1920), 252 U. S. 512. The fact that a landscape architect in the Office of Public Buildings and Grounds was, by inadvertence, appointed by the Secretary of War and not by the Chief of Engineers, which latter officer was the proper appointing authority, does not preclude the Chief of Engineers from removing him from office, under the power conferred by implication in R. S. 1799, which gives the Chief of Engineers the power of appointment. Id. Clerks, etc., who are to be appointed.The words "clerks of the several classes recognized by law" did not include the new offices created by act Mar. 3, 1875, sec. 2, in bureaus of the Treasury Department, with the designations 'deputy comptroller," "deputy commissioner," etc., who were to perform the duties theretofore performed by the chief clerks of the several bureaus, the office of chief clerk therein being omitted in the reorganization of the department by that act; and this section gave no authority to the head of the department to appoint said new officers. But this section included the officers described in this section as "heads of divisions." (1875) 15 Op. Atty. Gen. 3, 5. The words of this section, "clerks of the several classes recognized by law," are not to be confined in their effect to 363. Employment and compensation of agents and special officers.-The department charged with the execution of a particular authority, business, or duty, which, for its due execution requires services and duties to be performed, not strictly appertaining to or devolved upon any particular officers, or which require agencies of a special discretionary nature, possesses the right to employ proper persons to perform the same, and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. U. S. v. Ripley (1833), 7 Pet. 18, 24, 8 L. Ed. 593; U. S. v. Fillebrown (1833), 7 Pet. 28, 44, 8 L. Ed. 596; Gratiot v. U. S. (1841), 15 Pet. 336, 370, 10 L. Ed. 759. See U. S. v. Macdaniel (1833), 7 Pet. 1, 11, 8 L. Ed. 587. The head of a department is authorized, in the administration of the duties of his office, to employ agents, and to determine when an exigency arises demanding their employment. U. S. v. Potter (C. C. 1879), Fed. Cas. No. 16,076. The compensation of special officers employed by the head of a department may be fixed by special agreement. U. S. v. Cadwalader (D. C. 1835), Fed. Cas. No. 14,706. Where the accounts of a public officer employed by the head of a department under a special contract are settled, and a certain rate of compensation allowed, he continues to be entitled to the same rate of compensation until a new agreement is made. Id. Liability of head of department for act in reliance on subordinate.-The head of a department incurs no personal liability by executing an instrument which should not have been executed if he acts in reliance upon properly chosen subordinates whose ability and good faith he has no reason to question. (1893) 20 Op. Atty. Gen. 573. Discharge of unnecessary employees.Neither the statutes nor the rules promulgated cast upon the Government the obligation of employing men on probation or in the permanent service whose services are not needed. Brown v. U. S. (1904), 39 Ct. Cl. 255. The Government does not contract to keep its employees in its service if their services are not needed. Stilling v. U. S. (1906), 41 Ct. Cl. 61. 31. Appointment of women.-Women may, in the discretion of the head of any Department, be appointed to any of the clerkships therein authorized by law, upon the same requisites and conditions, and with the same compensations, as are prescribed for men. R. S. 165. 32. Secretaries for retired officials.-Hereafter no allowance or compensation for clerks or secretaries of officials of the United States retired from active service shall be authorized. Act of July 1, 1898 (30 Stat. 644), making appropriations for sundry civil expenses. 33. Employment according to specific appropriations.-That no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall after the first day of October next 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, Sec. 4, act of Aug. 5, 1882 (22 Stat. 255), making appropriations for legislative, executive and judicial expenses. * Previous provisions similar, to some extent, to those of this section, but relating to the War Department only, contained in sec. 1, act June 20, 1874 (18 Stat. 101), may be regarded as superseded by these provisions. Violation of this section was made punishable by sec. 5, act of Aug. 23, 1912, post, 37. Money appropriated for services in any executive department is not to be used in the distribution of any publication, except maps, weather reports, and weather cards issued by an executive department, but such work is required to be done at the Government Printing Office, by sec. 8, act Aug. 23, 1912, post, 192. Payments for official or clerical compensation, from appropriations for contingent, incidental, or miscellaneous purposes, were also forbidden by R. S. 3682, post, 271. The detail of employees of the executive departments and other Government establishments to the office of the President for temporary assistance, from time to time, was authorized by act of Mar. 1, 1919, post, 45. See notes to 36, post. 34. Employment restricted to statutes.-That the executive officers of the Government are hereby prohibited from employing any clerk, agent, engineer, 146345°-21-5 65 draughtsman messenger watchman, laborer, or other employee, in any of the executive departments in the city of Washington, or elsewhere beyond provision made by law. Sec. 5, act of Aug. 15, 1876 (19 Stat. 169). 35. Voluntary service.-* * ** Nor shall any Department or any officer of the Government 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. R. S. 3679 as amended by sec. 3, act of Feb. 27, 1906 (34 Stat. 49). A similar provision is found in the urgent deficiency appropriation act of May 1, 1884 (23 Stat. 17). Notes of Decisions. Purpose. The language here used (referring to the similar provision of the act of May 1, 1884) indicates that the Government shall not, except in the emergencies mentioned, place itself under obligations to anyone. The principle condemned is the same, whether the party rendering the service does so without any charge or because paid by other parties. The Government is forbidden to accept the service in either case. U. S. V. San Jacinto Tin Co. (1888), 125 U. S. 273, 305. Retired officer.-A retired Army officer, even though receiving upwards of $2,500 per annum, may be employed as superintendent of an Indian school or agency, where no additional compensation is allowed, without contravening the provisions of this act. (1913) 30 Op. Atty. Gen. 51. The words "voluntary service." as employed in the above act, were not intended to cover services rendered in an official capacity under regular appointment to an office otherwise permitted by law to be nonsalaried. Id. * * and after the first 36. Details for duty in the District of Columbia.-* day of October next section one hundred and seventy-two of the Revised Statutes, and all other 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 Aug. 5, 1882 (22 Stat. 255). The transfer of clerks or other employees in the classified service from one department to another was restricted by sec. 5, act of June 22, 1906 (34 Stat. 449) post 48. A prohibition of the detail of clerks or other employees from the executive departments, etc., to the Civil Service Commission, for the performance of duty in the District of Columbia, accompanies the appropriations for the commission in recent legislative, executive, and judicial appropriation acts, limited, in each such act, to the particular fiscal year. Notes of Decisions. Purpose of section.-The purpose of Congress in these provisions was to deprive the officers of the Government of all authority to employ at the "seat of government " "civil officers, clerks, and other employees," except such as might be specifically appropriated for. Plummer U S. (1889) 24 Ct. Cl. 517. v. The purpose of this section was to prevent the expenditure of public money in the employment of subordinate persons at the seat of government out of appropriations made for general purposes, so as to insure the efficient control by Congress, not only over the amounts of money expended but also over the number and char acter of subordinate officers and employees in the service of the United States em. ployed at the seat of government. (1908) 26 Op. Atty. Gen. 522. The section in no wise limits the discretion of the heads of the several executive departments as to the character of the work which shall be required of their several employees, but is intended to prevent the employment of subordinate officers or employees at the seat of government without specific appropriations for their payment. (1908) 26 Op. Atty. Gen. 522. Approval of promotions and certifications for vacancies by Civil Service Commission.There is nothing in the civil service act of January 16, 1883, secs. 2, 6, 7 (sec. 7 is ante, 18), nor in this section, which prohibits the Civil Service Commission from approving a promotion, otherwise unobjectionable, where it is informed that the appointing officer expects or intends to assign to the appointee duties not included within the designation given to his position in the specific appropriation providing for his compensation. (1908) 26 Op. Atty. Gen. 522. Neither is there anything in either of those acts preventing the certification by the commission of eligibles for a vacancy from registers not designating functions of the nature suggested by the title of the position given in the specific appropri ation providing for the compensation of the employee. Id. of Employment of substitutes for clerks, etc.-The employment of substitutes for clerks, etc., in the departments, who are temporarily absent, from sickness or other unavoidable cause, would be unauthorized where an additional expenditure would be requisite for their employment, and there is no specific appropriation therefor. (1890) 19 Op. Atty. Gen. 507, 508. Rights persons employed without specific appropriation.-These prohibitions against the employment of persons Washington beyond specific appropriations therefor are binding on the heads of departments and persons employed therein alike. An innocent employee is not bound to know that his superior is properly disbursing a fund committed to his discretion, but is bound to know that his own employment is authorized by law and within the discretion of his superior. Plummer v. U. S. (1889), 24 Ct. Cl. 517. in A deputy auditor of the Treasury detailed to disburse a fund under the administration of the Navy Department, and performing that service in Washington, is prohibited by this act, as well as by R. S. sec. 1765, post, 69, from receiving compensation additional to his salary. Whitaker v. U. S. (1892), 27 Ct. Cl. 524. 37. Penalty for employment or detail contrary to law. That any person violating section four of the legislative, executive, and judicial appropriation Act approved August fifth, eighteen hundred and eighty-two (Statutes at Large, volume twenty-two, page two hundred and fifty-five), shall be summarily removed from office, and may also upon conviction thereof be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year. Sec. 5, act of Aug. 23, 1912 (37 Stat. 414), making appropriations for legislative, executive, and judicial expenses. 38. Details to the District of Columbia provided by law. Hereafter it shall be unlawful to detail civil officers, clerks, or other subordinate employees who are authorized or employed under or paid from appropriations made for the military or naval establishments, or any other branch of the public service outside of the District of Columbia, except those officers and employees whose details are now especially provided by law, for duty in any bureau, office, or other division of any Executive Department in the District of Columbia, except temporary details for duty connected with their respective offices. Sec. 6, act of June 22, 1906 (34 Stat. 449), making appropriations for legislative, executive, and judicial expenses. 39. Details to the Civil Service Commission.-No detail of clerks or other employees from the executive departments or other Government establishments in the District of Columbia, to the Civil Service Commission or its field force, excepting the fourth district, for the performance of duty in the District of Columbia, shall be made for or during the fiscal year 1922. Act of Mar. 3, 1914 (41 Stat. 1262), making appropriations for legislative, executive, and judicial expenses. 40. Clerks and messengers and laborers at military headquarters.-* Provided, That said clerks, messengers, and laborers shall be employed and assigned by the Secretary of War to the offices and positions in which they are to serve: Provided further, That no clerk, messenger, or laborer at headquarters of tactical divisions, military departments, brigades, service schools, and office of the Chief of Staff shall be assigned to duty in any bureau of the War Department. Act of June 5 1920 (41 Stat. 955), making appropriations for the support of the Army. Similar provision appears in previous appropriation acts. 401. Civilian employees for tank units.-For payment of the necessary civilian employees to assist in handling the clerical work in the office of the Chief of Tank Corps, the various Tank Corps organization headquarters, and Tank Corps schools; and for the payment of the necessary mechanics to assist in repairing and preserving tanks in the hands of Tank Corps units, $79,000. Act of June 5, 1920 (41 Stat. 974), making appropriations for the support of the Army: Tank Service. 41. Clerks, etc., of the office of the General Staff.-It shall not hereafter be lawful to detail clerks or other civilian employees authorized for the Office of the General Staff for duty, temporary or otherwise, in any office or bureau of the War Department at Washington, District of Columbia, or to detail clerks or other employees from the War Department for service in the Office of the General Staff. Act of June 22, 1906 (34 Stat. 418), making appropriations for legislative, executive and judicial expenses. The clerks and messengers above referred to and provided for were first authorized by the act of Aug. 6, 1894 (28 Stat. 236); they replace the force of "General service clerks and messengers "created by the act of July 29, 1886 (24 Stat. 167), but discontinued by the act of Aug. 6, 1894 (28 Stat. 236). Their numbers and compensation are determined in the annual acts of appropriation for the support of the Army. 42. Details for service outside the District of Columbia.-That in expending appropriations made in this Act persons in the classified service in the District of Columbia shall not be detailed for service outside of the District of Columbia except for or in connection with work pertaining directly to the service at the seat of government of the department or other Government establishment from which the detail is made: Provided, That nothing in this section shall be deemed to apply to the investigation of any matter or the preparation, prosecution, or defense of any suit by the Department of Justice. Sec. 5, act of Mar. 3, 1921, (41 Stat. 1308), making appropriations for legislative, executive, and judicial expenses. Similar provision appears in previous appropriation acts. 43. Details within a department.-Each head of a Department may, from time to time, alter the distribution among the various bureaus and offices of his Department, of the clerks and other employees allowed by law, except such clerks or employees as may be required by law to be exclusively engaged upon some specific work, as he may find it necessary and proper to do, but all details hereunder shall be made by written order of the head of the Department, and in no case be for a period of time exceeding one hundred and twenty days: Provided, That details so made may, on expiration, be renewed from time to time by written order of the head of the Department, in each particular case, for periods of not exceeding one hundred and twenty days. All details hereto |