Discretionary SEC. 179. In any of the cases mentioned in the two preauthority of the President. ceding sections, except the death, resignation, absence, or July 23, 1868: sickness, of the Attorney-General, the President may, in June 22, 1870, s. his discretion, authorize and direct the head of any other 2, v. 16, p. 162. 3. v. 15, p. 168; Temporary ap pointments lim 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. SEC. 180. A vacancy occasioned by death or resignation ited to thirty must not be temporarily filled under the three preceding sections for a longer period than thirty days. days. 3, v. 15, p. 168. Act of Feb. 6, 1891. 26 Stats., p. 733. temporarу ар pointments. Idem, s. 2. Restriction on SEC. 181. No temporary appointment, designation, or assignment of one officer to perform the duties of another, in the cases covered by sections one hundred and seventyseven 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. Extra compensation disal. lowed. Idem, 8. 3. See note 2. Title 19. SEC. 182. 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. SEC. 1760. No money shall be paid from the Treasury to Unauthorized any person acting or assuming to act as an officer, civil, office, no salary military, or naval, as salary, in any office when the office Feb. 9, 1863, s. is not authorized by some previously existing law, unless 2, v. 12, p. 646. such office is subsequently sanctioned by law. for. certain appoint No salaries to SEC. 1761. No money shall be paid from the Treasury, ees to fill vacan- as salary, to any person appointed during the recess of the cies during recess Senate, to fill a vacancy in any existing office, if the of Senate. Idem. Salaries to offi. cers improperly holding over. vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until such appointee has been confirmed by the Senate. SEC. 1762. No money shall be paid or received from the Treasury, or paid or received from or retained out of any public moneys or funds of the United States, whether in the Treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or holding or exercis Note 2.-This provision (sec. 182) was designed to be general, and applies as well to those vacancies which are supplied by operation of the statute as to those which are filled by designation of the President. (Op., XIII, 7, Mar. 26, 1862, Hoar.) v.14, p.431; June See note 1. ing the duties or functions of any office contrary to sections seventeen hundred and sixty-seven to seventeen hundred Mar. 2, 1867, s. 9, and seventy, inclusive; nor shall any claim, account, 20, 1875, v. 18, p. voucher, order, certificate, warrant, or other instrument 109. 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. That sections seventeen hundred and sixty-seven, seventeen hundred and sixty-eight, seventeen hundred and sixtynine, seventeen hundred and seventy, seventeen hundred and seventy-one, and seventeen hundred and seventy-two of the Revised Statutes of the United States are hereby repealed. SEC. 1773. The President is authorized to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointments have been advised and consented to by the Senate. March 3, 1887. 24 Stat. L., 500. Tenure of office, repeal of provi sions relating to. Repeal of R. S., ss. 1767-1772. Commissions. Secretary of Idem, s. 8. SEC. 1774. Whenever the President, without the advice Notification of and consent of the Senate, designates, authorizes, or appointments to employs any person to perform the duties of any office, he Treasury. shall forthwith notify the Secretary of the Treasury thereof, and the Secretary of the Treasury shall thereupon communicate such notice to all the proper accounting and disbursing officers of his Department. nominations, re Treasury. Idem, 8.7. SEC. 1775. The Secretary of the Senate shall, at the close Notification of of each session thereof, deliver to the Secretary of the jections, etc., to Treasury, and to each of the Assistant Secretaries of the Secretary of Treasury, and to each of the Auditors, and to each of the Comptrollers in the Treasury, and to the Treasurer, and to the Register of the Treasury, a full and complete list, duly certified, of all the persons who have been nominated to and rejected by the Senate during such session, and a like list of all the offices to which nominations have been made and not confirmed and filled at such session. Proceedings against persons May 31, 1870, s. SEC. 1786. Whenever any person holds office, except as a member of Congress or of some State legislature, con- illegally holding trary to the provisions of the third section of the four-office. teenth article of amendment of the Constitution, the dis- 14, v. 16, p. 143. trict attorney for the district in which such person holds See note 2. office shall proceed against him by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and prosecute the same to the removal of such person from office. See secɛ. 1786 Note 1.-Sections 1767 to 1772, both inclusive, contained in the Hogg revision, defining the tenure of office, were repealed by act March 3, 1887, above. Note 2.-No person * shall hold any office, civil or military, under the United States, who, having previously taken an oath as an officer of the and 1787. United States * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. (Sec. 3, Art. XIV, amendment to Constitution.) Penalty for illegally holding office. Idem, s. 15. See note 3. SEC. 1787. Every person who knowingly accepts or holds any office under the United States, or any State, to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution, or who attempts to hold or exercise the duties of any such office, shall be 'deemed guilty of a misdemeanor, and shall be imprisoned not more than one year, or fined not more than one thousand dollars, or both. Note 3.-Functionaries of the Government in all of its Departments, civil or military, supreme or subordinate, general or provincial, political or municipal, are undoubtedly public officers. (Op., VIII, 107, Cushing, Sept. 30, 1856.) No public officer has authority to enter into a submission on behalf of the United States which will be binding, unless the power be given by statute. (U.S. v. Ames, 1 Woodbury & Minot, p. 76, B. F. D.) The acts of a public officer, on public matters within his jurisdiction and where he has a discretion, are presumed to be legal until the contrary be shown. (Miller v. Dinsman, 7 Howard, p. 89, B. F. D.) Where a particular authority is confided to a public officer, to be exercised in his discretion, upon an examination of facts, of which he is the appropriate judge, his decision thereon, in the absence of any controlling provision, is absolutely final. (Allen v. Blunt, 3 Story's Reports, 742, B. F. D.) The executive officers of the Government are personally liable at law for damages, in the ordinary form of action, for illegal official ministerial acts or omissions, to the injury of an individual. (Brightley Federal Digest, p. 597. Cites authorities.) A public officer, sued for an illegal act, can not justify under the instructions of the head of an Executive Department. An officer is responsible in damages for an illegal act done under instructions of a superior, but the Government is bound to indemnify him. Where a statuto imposes a particular duty upon an executive officer and he has acted (performed his duty according to the understanding of the statute), there is no appeal from his action to the President or to any other executive officer, unless such appeal is provided for by law. (Op. XVI, 317, Devens, May 2, 1879.) Usages have established in every Department of the Government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. And no such change of usage can have a retrospective effect, but must be limited to the future. Usage can not alter the law, but it is evidence of the construction given to it, and must be considered binding on past transactions. (VII, Peters, 1-14, cited by Cushing; Op., VIII, 7.) An Executive Department has no right to omit or delay the discharge of the duties imposed upon it by law, at the request of a committee of a House of Congress; it can only pay attention to such a request when it affects a discretionary power. (Op., XIII, 113, Hoar, June 22, 1869.) No process issued under the authority of a State government can obstruct, directly, or indirectly, the operations of the Government of the United States. (Op., XV. 524.) Where an officer of the United States is acting for the Government in any transaction, the benefits of which are to the Government, or where the end is to protect the interests of the Government, there seems to be good ground why the Government should interpose and assume his defense in case he is sued on account of such proceedings. (Op., XIV, 189, Williams, 20 Feb., 1873.) The orders of the head of an Executive Department, in reference to matters within its general supervision and control, are in contemplation of law those of the President, and have the same binding effect. (Otto, 101, p. 755; Wolsey v. Chapman, see 13 Peters, 498; Wilcox v. Jackson; also Op., IX, 463, and XI, 400.) It is a settled rule of administrative practice that the official acts of a previous administration are to be considered by its successors as final so far as the Executive is concerned. (Op., XV, 208.) The Secretary of the Interior should not review the decision of his predecessor, no new facts having been presented. Princi, al of res adjudicata applies. (Op., XV, 315, Devens; see also Op., VIII, 214, and V, 29.) The well-considered decision of the head of a Department ought only to be reversed upon clear evidence of mistake or wrong. (Op., X, 63.) Congress, in case of appointments, may provide that certain acts shall be done by the appointee before he shall enter on the possession of his office under his appointment. These acts then become conditions precedent to the complete investure of the office. (U.S. v. LeBaron, 19 Howard, 78.) In a matter which the law confides to the pure discretion of the Executive, the decision by the President or the proper head of the Department, of any question of fact involved, is conclusive and is not subject to revision by any authority in the United States. (Op., VI, 226, Cushing, Nov. 23, 1853.) The lawful will of the President may be announced and an act in the authority of the President be performed, not only by a head of a Department, but in the second or other degree of delegation by some officer subordinate to such head. (Op., VII, 453, Cushing, Aug. 31, 1855. See this opinion for a full discussion of the rela tion of the President to the Executive Departments.) A public officer is not liable to an action for an honest mistake made in a matter where he was obliged to exercise his judgment, though an individual may thereby suffer. (Kendall v. Stokes, 3 Howard, 87. B. F. D.) The power of pardon, conferred by the Constitution on the President, is unlimited except in case of impeachment. It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control. A pardon reaches the punishment prescribed for the offense and the guilt of the offender. If granted before conviction it pre Title 4. to Feb. 14, 1871, s. See note 1. SEC. 184. Any head of a Department or Bureau in which a claim against the United States is properly pending may Subpoenas apply to any judge or clerk of any court of the United witnesses. States, in any State, District, or Territory, to issue a sub- 1, v. 16. p.412. pœna for a witness being within the jurisdiction of such court, to appear at a time and place in the subpœna stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and crossinterrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim. SEC. 185. Witnesses subpoenaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States. vents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction it removes the penalties and disabilities, and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation-it does not restore offices forfeited or property or interests vested in others in consequence of the conviction and judgment. (S. C., Wallace, 4, p. 334, Dec., 1866.) Fines and penalties, where they have not been actually covered into the Treasury, are restorable under a full pardon. (Op., XVI, p. 3, Apr. 29, 1878, Devens. See also Op., XIV, June 28, 1872, Williams; XII, 81, Stanbery; VIII, p. 281, Cushing; Holt's Digest, p. 261.) The pardon of a deceased officer or soldier is impracticable for the reason that it is essential to the validity of a pardon that it should be accepted. A pardon, like a deed, must be delivered to and accepted by the party to whom it is granted in order to be valid. (Holt's Digest, p. 262, cites Ú. S. v. Wilson, 7 Peters, 150.) A remission of the penalty by a pardon by the President will restore an officer whose rank has been reduced by sentence of a court-martial to his former relative rank according to the date of his commission. [Case of an officer reduced in rank by having his name placed lower down on the list of officers of the same grade. The officer loses such opportunities for promotion as may in the meantime have occurred.] (Op., XII, p. 547, Jan. 22, 1869, Evarts.) The pardoning power of the President can not reach an executed sentence which has been regularly imposed by a competent court. When a sentence has been executed in part he can remit the remainder. (Holt's Digest, p. 260.) For a statement of the principal grounds on which the Judge Advocate-General of the Army has favored pardon or remission of the unexpired punishments of soldiers, see Winthrop's Digest, pages 359-360. An application for a pardon was addressed to the President and referred to the War Department. The latter asked the opinion of the Attorney-General on the subject, who declined to give it, as it would only be advising the Secretary of War what to advise the President. (Op., XIV, p. 20, Mar. 23, 1872, Williams.) The general power of pardoning by the President includes the power oi pardoning conditionally, or of commuting to a milder punishment that which has been adjudged against the offender. The commutation of the President is but a conditional pardon, and that the President may grant such a conditional pardon has been always recognized and decided. (Op., V, 368, May 10, 1851, Crittenden, cites U. S. v. Wilson 7 Peters, 158.) Note 1.-Where the law imposes on officers the examination and settlement of claims, it gives them the authority to require that the claim shall be established, or supported at least, by oaths of witnesses. (Op., XIV, Williams, July 23, 1874.) Note 2.-Under sec. 848, R. S., for each day's attendance in court or before any offi cer, pursuant to law, a witness is allowed one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation for attendance shall be allowed. (See sec. 850, Traveling Expenses, Division I.) Witnesses' fees. 1, v. 16, p. 412. Feb. 14, 1871, s. See note 2. Compelling tes timony. Idem. Professionalassistance; how obtained. Idem, s. 3. Persons for. partments not to SEC. 186. If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpoena, or to punish the disobedience, in like manner as any court of the United States may do in case of process of subpoena ad testificandum issued by such court. SEC. 187. Whenever any head of a Department or Bureau having made application pursuant to section one hundred and eighty-four, for a subpoena to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his Department or Bureau, he shall give notice thereof to the Attorney-General, and of all facts necessary to enable the Attorney-General to furnish proper professional service in attending such examination, or making such investigation, and it shall be the duty of the AttorneyGeneral to provide for such service. SEC. 190. It shall not be lawful for any person appointed merly in the De after the first day of June, one thousand eight hundred and prosecute claims seventy-two, as an officer, clerk, or employé in any of the June 1, 1872, s. Departments, to act as counsel, attorney, or agent for pros in them. 5, v. 17, p. 202. See note 3. Title 7, chap. 1. 2, v. 3, p. 366. ecuting any claim against the United States which was pending in either of said Departments while he was such officer, clerk, or employé, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer, clerk, or employé. SEC. 236. All claims and demands whatever by the Mar. 3, 1817, s. United States, or against them, and all accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury. See note 4. Note 3.-By the act of July 11, 1861, a member of Congress elect is, previous to as well as after taking the oath of office, debarred from acting as counsel for parties, and from prosecuting claims against the Government before any Department, courtmartial, bureau, office, or any civil, naval, or military commission, if he has received, or has agreed to receive any compensation whatever, directly or indirectly, therefor. (Op., XIV, 133, Williams, Nov. 2, 1872.) Note 4.-Services voluntarily rendered, however valuable, and however strongly they may appeal to the liberality and equity of the Government, can not be said to give the party who renders them a legal right to compensation. The person must have been duly appointed to some office, or duly employed in some duty recognized by law. (Op., III, 357, Butler, Aug.13, 1838.) Services voluntarily performed without contract for compensation create no legal liability. (C. C., XIII.) An agent who received payment on a claim in good faith and paid it over to his principal before informed of a mistake made, is not liable. The principal is liable either at the suit of the rightful claimant or of the United States. The officer of the Treasury who made the mistake is legally chargeable with the amount, to be passed to his credit on recovering the money. The rightful owner does not lose his right to be paid out of any money in the Treasury not otherwise appropriated, as the law authorized. (Op., XVI, 193, Devens, Oct. 23, 1878; see also Op., IV, 298, 307; V, 183.) Claims against the Government which are disputed by the officers authorized to adjust such accounts may be compromised. If the claimant voluntarily enters into such a compromise, accepting a smaller sum than his demand and giving a receipt in full for the whole, he is bound by the adjustment. (C. C., v. 8, p. 134, Sweeney's Case.) Where Congress appropriated a certain sum to pay a claimant, and the head of a Department found a less sum due and paid the latter, the appropriation was exhausted when the amount awarded was paid. A succeeding Secretary has no jurisdiction to award claimant an additional sum. (Op., IX, 451, Black, July 20, 1860; see also Op., X, 238, Bates, Apr. 29, 1862.) If funds to pay a claim are sent at request of claimant, by express, the claim is |