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ent kind of work, requiring more skill, more technical knowledge, more labor, and more responsibility. It requires no argument to demonstrate the fallacy of characterizing all clerical services as the same or similar simply because included in the general term - clerical."

Your statement as to the case submitted is that the clerk's new duties “ will be different from those which he is now performing and of a more responsible nature," a sufficient statement, I think, to take the case out of the statutory prohibition as to “same or similar services."

On the other feature of the case you are possibly without a standard, since the position is a new one. If, however, the same or similar services have been heretofore performed in a similar position under practically the same conditions for some other commission or similar body, the pay for such services so performed would serve to fix the maximum limit in the case submitted.

Under your statement of facts I see no objection to the proposed transfer, and in the absence of a lesser standard of compensation for the character of services proposed I see no objection to the payment of the salary named.


Expenditures from an appropriation for contingent expenses must be authorized

by the head of the department or an Assistant Secretary, but if an officer other than an Assistant Secretary is designated by the President to be Acting Secretary during the absence of the head of the department, his authorization will be sufficient.

Decision by Comptroller Downey, July 16, 1913:

The Auditor for the State and Other Departments has submitted for my approval, disapproval, or modification his decision of July 11, 1913, as follows:

“I have before me for settlement the account of Charles Richmond Henderson, United States commissioner on the International Prison Commission, for reimbursement for expenditures, in the sum of $69.75, which has been approved by J. B. Moore, Counselor of the Department of State, for payment from the appropriation International Prison Commission, 1913.'

" The following statutes provide for the appointment of a Counselor of the Department of State by the President, by and with the advice and consent of the Senate, but do not set forth the duties of the office: Act of August 6, 1909 (36 Stats., 119); act of June 17, 1910 (36 Stats., 484); act of March 4, 1911 (36 Stats., 1186); act of August 23, 1912 (37 Stats., 372).

“Acting under section 179, Revised Statutes, the President has authorized and directed the Counselor of the Department of State to perform the duties of the Secretary during his absence and to take precedence over the Assistant Secretaries in acting in this capacity. I am in doubt whether the decision of the Comptroller, contained in his letter of June 16, 1904, to the Secretary of State, may be held to bar the counselor from approving this account on account of there being no law expressly authorizing the assignment of this duty to him.

“But I resolve the doubt in favor of the validity of the approval of the account and so decide. The settlement is, however, suspended pending your decision approving, disapproving, or modifying it."

The decision of this office of June 16, 1904 (29 MS. Comp. Dec., 1075), referred to, related to the approval of expenditures from certain appropriations which were by the terms of the appropriations made discretionary with the President. It was held that in such cases the expenditures must be approved by the Secretary of State or an Assistant Secretary. This decision is in accordance with opinions of the Attorney General (18 Op. Att. Gen., 424, 432), and decisions of this office in similar cases.

It was also held that by reason of the requirement of section 3683, Revised Statutes, payments from appropriations for contingent expenses must be authorized or approved by the head of the department or an Assistant Secretary. (See decision to Secretary of State, May 1, 1899, 9 MS. Comp. Dec., 360; 12 Comp. Dec., 475; 17 id., 1016; 18 id., 536.)

I believe these rulings are correct, and under them the Counselor of the State Department can not be authorized by the Secretary to approve vouchers which require the action of the Secretary. He has, of course, such authority when acting Secretary of State by empowerment of the President.

The expenditure in the case under consideration, which was approved by J. B. Moore, Counselor for the State Department, was not from a contingent appropriation nor from an appropriation by its terms made subject to the discretion of the President. It was an appropriation

“For subscription of the United States as an adhering member of the International Prison Commission, and the expenses of a commissioner, including preparation of reports, two thousand dollars.” (37 Stat., 100.)

I am of the opinion that expenditures from this appropriation may properly be approved by the Counselor of the State Department, if designated by the Secretary to approve such expenditures, or when, by designation of the President, he is acting Secretary of State.

The auditor's decision, as modified, is approved.


The physical qualification prescribed by sections 1493 and 1502, Revised

Statutes, as a condition precedent to the promotion of naval officers, is neither unconstitutional nor directory merely, and an ensign who was nominated, confirmed, and commissioned as lieutenant (junior grade) without having qualified for such promotion by passing the physical examination as required by such statutes, did not become legally invested with the office of lieutenant (junior grade) or a lieutenant (junior grade) de jure. (See 19 Comp. Dec., 747.)

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Decision by Comptroller Downey, July 16, 1913:

Jefferson B. Goldman (junior grade), United States Navy, retired, applied, July 10, 1913, for a reopening of the revision of May 23, 1913, of settlement of Auditor for the Navy Department No. 39831, of January 21, 1913.

By said settlement the auditor found claimant indebted to the United States for difference between pay as lieutenant (junior grade) and ensign from March 25, 1911, to January 26, 1912, $314.69, for the reason that his promotion from ensign to lieutenant (junior grade), to rank from February 13, 1911, had been erroneously made without his having qualified therefor by passing the physical examination required by sections 1493 and 1502, Revised Statutes, the error having been due to the inadvertent inclusion of his name in the list of officers who had passed such examination, and the commissions as lieutenant (junior grade) issued to him having upon the discovery thereof been recalled.

Upon revision it was decided that his status was that of a de facto lieutenant (junior grade) for period of his actual performance of service as a lieutenant (junior grade), April 8, 1911, to January 17, 1912, and he was allowed to retain the pay of a lieutenant (junior grade) received for that period, not in excess of that to which as a lieutenant (junior grade) de jure he would have been entitled, $288.35, less an overpayment of $5.10 as ensign for period from January 18 to 26, 1912, or a net allowance of $283.25. The reasons for such holding are fully set forth in the decision of May 23, 1913, and need not be repeated.

A reopening is requested solely upon the ground of a mistake of law, the contention made at time of appeal being reiterated that the nominating, confirming, and commissioning of claimant as lieutenant (junior grade) invested him with the legal title to the office and constituted him a lieutenant (junior grade) de jure, thus entitling him to the pay of that office for entire period disallowed by auditor, notwithstanding his failure to qualify for the promotion by the passage of the physical examination prescribed by Congress as a condition precedent to appointment to the office of lieutenant (junior grade) created by it, such requirement being a restriction

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upon the right of choice conferred upon the President and Senate by section 2 of Article II of the Constitution, and therefore either unconstitutional or directory merely.

In support of this contention reference is made to the brief filed with the appeal and to the recent decision of the Attorney General of June 23, 1913, in the case of Maj. Beecher B. Ray, Quartermaster Corps, United States Army.

The arguments upon this point in the brief were fully considered at the time the decision on the appeal was rendered.

The opinion of the Attorney General referred to is understood to be to the effect that the provision in the act of October 1, 1890 (26 Stat., 562)—

"That hereafter promotion to every grade in the Army below the rank of brigadier general, throughout each arm, corps, or department of the service, shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade of that arm, corps, or department does not deprive the appointing power of choice in the selection of the officer to be promoted, and that the President and Senate are not thereby restricted in the exercise of the power of appointment conferred by section 2 of Article II of the Constitution to the selection of a particular officer for promotion, viz, the senior officer in the next lower grade, and, conversely, that an officer promoted other than a senior officer would be invested with the legal title to the office and entitled to the compensation attached to the office as an officer de jure.

It is not, however, understood that said opinion holds that an officer may be promoted, whether a senior officer or otherwise, who has not demonstrated his fitness for the promotion by the tests of examination required by Congress.

That Congress may prescribe qualifications for the offices it is empowered to create is unquestioned. A former Attorney General, in a case cited in above opinion, distinguishes between the power of Congress to restrict the appointing power to the selection of a particular person for appointment and its power to prescribe qualifications for the offices it is empowered to create. He states:

“The argument has been made that the unquestioned right of Congress to create offices implies a right to prescribe qualifications for them. This is admitted. But this right to prescribe qualifications is limited by the necessity of leaving scope for the judgment and will of the person or body in whom the Constitution vests the power of appointment.

Though the appointing power alone can designate an individual for an office, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications, and

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require thạt the designation shall be made out of a class of persons ascertained by proper tests to have these qualifications.

“It has been argued that a right in Congress to limit in the least the field of selection, implies a right to carry on the contracting process to the designation of a particular individual. But I do not think this a fair conclusion. Congress could require that officers shall be of American citizenship or of a certain age, that judges should be of the legal profession and of a certain standing in the profession, and still leave room to the appointing power for the exercise of its own judgment and will; and I am not prepared to affirm that to go farther, and require that the selection shall be made from persons found by an examining board to be qualified in such particulars as diligence, scholarship, integrity, good manners, and attachment to the Government, would impose an unconstitutional limitation on the appointing power. It would still leave a reasonable scope for its own judgment and will

(13 Opin. Att. Gen., 516, 520, 524, 525.)

Furthermore, the question of whether the President and Senate are empowered to promote a naval officer without his having qualified by passing the examinations which Congress has prescribed in sections 1493, 1496, and 1502, Revised Statutes, has been specifically passed upon by the Court of Claims, and it was held that they did not have such power. In deciding the question the court, in Jouett v. United States (28 Ct. Cl., 266), said:

“The case of Marbury v. Madison, 1 Cranch, 137, does not apply to the cause at bar, for there merely a ministerial act remained to be performed, whereas here the statute positively prohibited the issue of a commission until a condition precedent had been performed, a condition which was not performed.

* The statute says he shall not be promoted unless a condition has been fulfilled. The President was without power to invest this plaintiff with the higher office until the board had made its findings and these findings had been approved.

“ The condition antecedent to promotion was placed upon the appointing power as well as upon the plaintiff, and as it had not been fulfilled, the plaintiff could not be promoted. commission was, in fact, signed (and not delivered), the Executive was without power to promote plaintiff at the date of its signature, and, if issued, it could not be held to take effect until after the action prescribed by sections 1496 and 1502 should have been taken in a manner favorable to the plaintiff.” (See also 12 Opin. Att. Gen., 347; McMillin v. Richards, 45 Neb., 786, 790; City of Philadelphia v. Given, 60 Pa. St., 136, 138.) The very definition of an officer de jure is

* * * One who is clothed with the full legal right and title to the office; in other words, one who has been legally elected or appointed to an office, and who has qualified himself to exercise the duties thereof according to the mode prescribed by law.” (Stott v. ('ity of Chicago, 205 II., 281, 287; M Millin v. Richards, 45 Neb., 786, 790; 23 Am. & Eng. En. Law, 2d Ed., 327.)



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