The head of an Executive Department may properly decline to furnish official records of his Department, or copies thereof, or to give testimony in a cause pending in court between private parties, respecting facts which have come to his knowledge officially, whenever in his judgment the production of such papers or the giving of such testimony might prove prejudicial, for any reason, to the government or to the public interest. Id. The head of an Executive Department may legally prohibit the chief of a bureau from producing in court any official records of the Department, or certified copies thereof, in obedience to a subpoena duces tecum, and from making or certifying copies of such official records. Id. The records of Executive Departments are quasi-confidential in their nature, and must be classed as privileged communications whose production can not be compelled by a court without express authority of law. Id. 9. Force and effect of regulations as law. A regulation prescribed by the head of a department, within this section, when not inconsistent with law, has the force of law. Caha v. U. S. (1894) 14 Sup. Ct. 513, 517, 152 U. S. 221, 38 L. Ed. 415; Ex parte Reed (1879) 100 U. S. 13, 25 L. Ed. 538; (1895) 21 Op. Atty. Gen. 122. A regulation of a department, in conformity to a particular act of Congress, becomes a part of the law, and of as binding force as if incorporated in the body of the law itself. Wilkins v. U. S. (1899) 96 Fed. 837, 841, 37 C. C. A. 588, writ of certiorari denied (1899) 20 Sup. Ct. 1023, 175 U. S. 727, 44 L. Ed. 339; U. S. v. Sibray (C. C. 1910) 178 Fed. 144, reversed (1911) 185 Fed. 401, 107 C. C. A. 483; U. S. v. Barrows (D. C. 1869) Fed. Cas. No. 14,529, 1 Abb. U. S. 351. Regulations cannot have retroactive effect. U. S. v. Davis (1889) 10 Sup. Ct. 105, 132 U. S. 334, 33 L. Ed. 390; Same v. Schofield (1889) 10 Sup. Ct. 106, 132 U. S. 337, 33 L. Ed. 392. The head of an executive department is not liable in damages on account of official communications made by him, pursuant to an act of congress, and in respect of matters within his authority, by reason of any personal or malicious motive that prompted his action. Spalding v. Vilas (1896) 16 Sup. Ct. 631, 161 U. S. 483, 40 L. Ed. 780. Departmental practice in the administration of a statute will control the courts only when such practice is reasonable. Robinson V. Lundrigan (1913) 33 Sup. Ct. 255, 227 U. S. 173, 57 L. Ed. 468. The postmaster general has authority to make regulations for the government of the postal service, not inconsistent with the provisions of the Post Office Act. Myrick v. U. S. (1915) 219 Fed. 1, 134 C. C. A. 619. And this includes power to prescribe that, in determining the gross receipts of a post office on which the salary of the postmaster is to be fixed, stamps sold in unusual quantities for other offices shall not be considered. U. S. v. Foster (1914) 34 Sup. Ct. 666, 233 U. S. 515, 58 L. Ed. 1074, reversing judgment (D. C. 1913) 211 Fed. 206. While department regulations duly promulgated have the force of law, in a limited sense, they cannot enlarge or restrict the liability of an officer on his bond. Meads v. U. S. (1897) 81 Fed. 684, 26 C. C. A. 229. A lawful rule made by the chief of an executive department to which the enforcement of a law is intrusted, which appoints a subordinate for the purpose and imposes upon him the duty of enforcing the law, is a sufficient process of law to authorize him to prevent its violation when he can do so without infringing upon any personal or property right of those who threaten to break it. Buster v. Wright (1905) 135 Fed. 947, 68 C. C. A. 505. The regulations of a department in settling its accounts are subject to the revision of a court and jury, when they work manifest injustice to individuals. U. S. v. Cadwalader (D. C. 1835) Fed. Cas. No. 14,706. Treasury regulations with reference to the internal revenue and for the government of the officers of the Revenue Department have the force of law. In re Huttman (D. C. 1895) 70 Fed. 699, 702; Stegall v. Thurman (D. C. 1910) 175 Fed. 813, 816, 818. Regulations are matters of departmental business; law and justice require that they be upheld so long as the head of the department allows them to be in force. Real Estate Savings Bank of Pittsburgh v. U. S. (1880) 16 Ct. Cl. 335. Regulations of the heads of departments, within the scope of their respective duties, are treated as the acts of the President. Maxwell v. U. S. (1914) 49 Ct. Cl. 262. The rules adopted by the treasury department for the payment of arrears due deceased officers, seamen, etc., in the navy, have the force of law. Low v. Hanson (1881) 72 Me. 104. 10. Judicial notice of regulations.The courts take judicial notice of the regulations of the executive departments. Ex parte Reed (1879) 100 U. S. 13, 25 L. Ed. 538; Wilkins v. U. S. (1899) 96 Fed. 837, 841, 37 C. C. A. 588; Weimer v. Zevely (1905) 138 Fed. 1006, 70 C. C. A. 683, affirming decree Zevely v. Weimer (1904) 82 S. W. 941, 5 Ind. T. 646; Beck v. Johnson (C. C. 1909) 169 Fed. 154; Low v. Hanson (1881) 72 Me. 104. Whenever, by the express language of any act of Congress, power is intrusted to either of the principal departments of government to prescribe rules and regulations or the transaction of business in which the public is interested, and in respect to which they have a right to participate, and by which they are to be controlled, the rules and regulations prescribed in pursuance of such authority become a part of that body of public records of which Caha the courts take judicial notice. v. U. S. (1894) 14 Sup. Ct. 513, 517, 152 U. S. 221, 38 L. Ed. 415. A federal appellate court should not be asked to take judicial notice of department regulations, but where relied on they should be read and put into the record in the trial court. Nagle v. U. S. (1906) 145 Fed. 302, 76 C. C. A. 181. 11. Violations of regulations.-Violation of department regulations is not a criminal offense, in the absence of a statute distinctly making it so. U. S. v. Eaton (1892) 12 Sup. Ct. 764, 767, 144 U. S. 677, 36 L. Ed. 591; U. S. v. 11,150 Pounds of Butter (1912) 195 Fed. 657, 115 C. C. A. 463; U. S. v. Van Wert (D. C. 1912) 195 Fed. 974. If Congress has not made an act a punishable offense, no head of a department can do it by force of a regulation. No authority is given by this section to make rules for the conduct of persons not connected with the departments. (1883) 17 Op. Atty. Gen. 524, 525. Cited without definite application, Moses v. U. S. (1897) 17 Sup. Ct. 682, 689, 166 U. S. 571, 41 L. Ed. 1119; John Shillito Co. v. McClung (1892) 51 Fed. 868, 871, 2 C. C. A. 526; U. S. v. Moses (1903) 126 Fed. 58, 61, 60 C. C. A. 600, 70 L. R. A. 281, writ of certiorari denied (1904) 25 Sup. Ct. 789, 195 U. S. 632, 49 L. Ed. 353; Franklin Sugar Refining Co. v. U. S. (C. C. 1910) 178 Fed. 743; U. S. v. Mayers (D. C. 1896) 81 Fed. 159, 161; Shipman v. U. S. (1892) 27 Ct. Cl. 129; Woog v. U. S. (1913) 48 Ct. Cl. 80; (1881) 17 Op. Atty. Gen. 205, 210. § 236. (R. S. § 162.) Hours of business. From the first day of October until the first day of April, in each year, all the Bureaus and offices in the State, War, Treasury, Navy, and Post-Office Departments, and in the General Land-Office, shall be open for the transaction of the public business at least eight hours in each day; and from the first day of April until the first day of October, in each year, at least ten hours in each day; except Sundays and days declared public holidays by law. Act July 4, 1836, c. 352, § 12, 5 Stat. 112. Subsequent provisions making it the duty of the heads of the several Executive Departments to require of all clerks and other employés not less than seven hours of labor each day, except Sundays and public holidays, contained in Act March 3, 1883, c. 128, § 4, 22 Stat. 563, were re-enacted in Act March 3, 1893, c. 211, § 5, which was amended by Act March 15, 1898, c. 68, § 7, to read as set forth post, § 238. 237. (Act March 3, 1893, c. 211, § 4.) Closing Department on decease of ex-official forbidden. Hereafter the Executive Departments of the Government shall not be closed as a mark to the memory of any deceased ex-official of the United States. (27 Stat. 715.) This section was part of the legislative, executive, and judicial appropriation act for the fiscal year 1894, cited above. The draping of any public building in mourning was forbidden by section 3 of this act, post, § 6939. § 238. (Act March 3, 1893, c. 211, § 5, as amended, Act March 15, 1898, c. 68, § 7.) Hours of labor and leaves of absence of clerks and other employés; monthly reports as to condition of business; bringing up arrears; quarterly reports as to condition of business. Hereafter it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to require of all clerks and other employees, of whatever grade or class, in their respective Departments, not less than seven hours of labor each day, except Sundays and days declared public holidays by law or Executive order: Provided, That the heads of the Departments may, by special order, stating the reason, further extend the hours of any clerk or employee in their Departments, respectively; but in case of an extension it shall be without additional compensation: Provided further, That the head of any Department may grant thirty days' annual leave with pay in any one year to each clerk or employee: And provided further, That where some member of the immediate family of a clerk or employee is afflicted with a contagious disease and requires the care and attendance of such employee, or where his or her presence in the Department would jeopardize the health of fellow-clerks, and in exceptional and meritorious cases, where a clerk or employee is personally ill, and where to limit the annual leave to thirty days in any one calendar year would work peculiar hardship, it may be extended, in the discretion of the head. of the Department, with pay, not exceeding thirty days in any one case or in any one calendar year. This section shall not be construed to mean that so long as a clerk or employee is borne upon the rolls of the Department in excess of the time herein provided for or granted that he or she shall be entitled to pay during the period of such excessive absence, but that the pay shall stop upon the expiration of the granted leave. Hereafter it shall be the duty of the head of each Executive Department to require monthly reports to be made to him as to the condition of the public business in the several bureaus or offices of his Department at Washington; and in each case where such reports disclose that the public business is in arrears, the head of the Department in which such arrears exist shall require, as provided herein, an extension of the hours of service to such clerks or employees as may be necessary to bring up such arrears 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. (27 Stat. 715. 30 Stat. 316.) Provisions relating to hours of labor, etc., contained in the legislative, executive, and judicial appropriation act of March 3, 1883, c. 128, § 4, 22 Stat. 563, were incorporated, in substance, in the similar appropriation act of 1893, cited above, which was amended to read as above set forth by the appropriation act of March 15, 1898, c. 68, § 7. The amendment by said act of 1898 consisted in restricting the power given by the previous acts to heads of Departments, "to extend or limit the hours of service," to authority to extend the hours only; in reducing the sick leave from the 60 days previously authorized to 30 days; and in adding provisions requiring reports as to the condition of business, and for bringing up arrears of business. This section is not to be construed to prevent the granting of annual leave of absence to a clerk or employé who has had during the year leave on account of sickness, by a provision of Act July 7, 1898, c. 571, § 1, post, § 239. The 30 days' annual leave is exclusive of Sundays and legal holidays, by a provision of Act Feb. 24, 1899, c. 187, § 4, post, § 240. Provisions as to holidays and leaves of absence to officers and to clerks and other employés in the public service or in particular branches thereof other than the Executive Departments were made by Res. Jan. 6, 1885, No. 5, Res. Feb. 23, 1887, No. 6, Act June 28, 1894, c. 118, Act March 1, 1889, c. 324, § 49, Act Feb. 1, 1901, c. 190, post, §§ 3244-3248, and other acts referred to in the notes to those sections. Previous provisions for monthly reports by chief clerks as to defects in arrangement or dispatch of business, and for amendment of such defects, were made by R. S. §§ 174, 175, post, §§ 256, 257. Subsequent provisions making it the duty of each head of an Executive Department, etc., to submit to Congress in the annual Book of Estimates a statement as to the condition of business in his Department, etc., showing particulars as to arrears, etc., were made by Act March 2, 1895, c. 177, § 7, post, § 6680. It was also made the duty of the heads of Executive Departments to report to Congress each year in the annual estimates the number and salaries of em ployés who are below a fair standard of efficiency, by a provision of Act July 11, 1890, c. 667, § 2, post, § 6679. In connection with an appropriation for the Civil Service Commission for the establishment of a system of efficiency ratings, the Commission was required to investigate and report to the President as to the administrative needs of the service relating to personnel in the several Executive Departments, etc., by a provision of Act March 4, 1913, c. 142, § 1, post, § 3286. Notes of Decisions Departments and clerks, etc., within application of section.-This section is applicable to the Department of Agriculture. (1894) 20 Op. Atty. Gen. 728. An Assistant Secretary of a department, appointed by the President, with the advice and consent of the Senate, is not a clerk or other employé within the meaning of the section. But it may apply to chiefs of divisions in a department. Id. Even if the Bureau of Engraving and Printing is properly part of the Treasury Department, leaves of absence to employés of the Bureau are governed by Act July 6, 1892, post, § 511, which was not repealed by this section. (1896) 21 Op. Atty. Gen. 338. This section does not apply to the Civil Service Commission, as the commission is not attached in any wise to any of the executive departments, or subject in any wise to the control of any of the heads of those departments. (1898) 22 Op. Atty. Gen. 62, 63. Subordinate officers and employés of the customs service, wherever employed, and whether they receive an annual or per diem compensation, are entitled to the same privileges as to leaves of absence as clerks and employés in the executive departments at Washington, by virtue of Act Aug. 28, 1890, post, §§ 5374, 5375, with which this section is not inconsistent. 22 Op. Atty. Gen. 77, 79. (1898) Clerks and employés at seat of government or elsewhere. The operation of the provisions of Act March 3, 1893, with reference to leaves of absence in the Treasury Department, was confined to clerks and employés in the city of Washington. (1896) 21 Op. Atty. Gen. 338, 427. A clerk or other employé of an Executive Department of the Government whose duties are performed at a place other than the seat of Government is as much entitled to the benefits of Act March 15, 1898, § 7, amending this section, with reference to leaves of absence, as one whose duties are performed in the city of Washington. (1898) 22 Op. Atty. Gen. 77. The Extension of Hours Act of March 15, 1898, § 7, amending this section, applies only to employés in the departments at the seat of government. It does not apply to laborers employed at the various customs ports who are actually engaged in manual labor, and it did not repeal, as to such laborers, the provisions of the Eight Hour Law, Act Aug. 1, 1892, § 1, post, § 8918. (1912) 29 Op. Atty. Gen. 481. 1 U.S.COMP.'16-7 Hours of labor.-There is no limit to the right of the head of a department to demand service of his subordinates. (1894) 20 Op. Atty. Gen. 728. This section does not permit an allowance of half an hour for luncheon within the seven hours of labor required. (1898) 22 Op. Atty. Gen. 62. "Every Saturday after 12 o'clock noon" is a holiday for all purposes within the District of Columbia, by Code D. C. § 1389, and is, therefore, one of the "days declared public holidays by law," within the meaning of this section, and consequently heads of departments are not obliged to require labor of such clerks, etc., after the hour of noon on Saturdays. (1903) 25 Op. Atty. Gen. 40. Heads of departments must require at least seven hours' labor of all their clerks and other employés every day in the year except Sundays and days declared to be holidays by section 1389 of the Code of the District of Columbia, and during authorized leave; and, if the public service requires it, the hours of labor may be extended by special order and may include holidays as well as ordinary days. Id. Leaves of absence under former laws. -Where the regulations of an executive department required the clerks therein to furnish a certificate of their attending physician in cases of absence caused by sickness, and there was no provision authorizing a stoppage of pay, the head of the department could not deprive a clerk of his pay whose absence was caused by sickness and who furnished his physician's certificate as required by the regulations. Ware v. U. S. (1871) 7 Ct. Cl. 565; Sleigh v. U. S. (1873) 9 Ct. Cl. 369. The incumbent of an office is prima facie entitled to the lawful compensation thereof so long as he holds the office, though he may be disabled by disease or bodily injury from performing its duties. If it be an office held at the will of the appointing power, and that power does not see fit to have the compensation go on while the incumbent is so disabled, the only remedy, in the absence of express law or regulation authorizing the stoppage of the compensation during the disability, is to remove the incumbent. Sleigh v. U. S. (1873) 9 Ct. Cl. 369, 375. Where a clerk in an executive department tendered his resignation on the 26th of September, to take effect on the 31st of October, with a request for leave of absence from the 1st of October, and the resignation was "accepted (97) accordingly" by the head of the department, it must be held that if he were absent during October he was absent with leave, and that, as he held the office until the end of October, he was entitled to the pay thereof during that month. Reinhard v. U. S. (1874) 10 Ct. Cl. 282. Act March 3, 1883, c. 128, § 4, 22 Stat. 531, left undisturbed the principle that a clerk is entitled to the pay of the office so long as he holds it, if his absence is caused by sickness. Chisolm v. U. S. (1892) 27 Ct. Cl. 94. Under that act, it was discretionary with the heads of departments to grant or refuse leave of absence; and their acts cannot be reviewed. All absence without the consent of the head of a department was without pay; and absence with the permission of the head of the department was subject to such conditions and limitations as might be imposed by the authority granting the leave. Hurlburt v. U. S.. (1895) 30 Ct. Cl. 16. The meaning of section 4 of Act March 3, 1883, was that an absence from the executive departments in excess of 30 days should be without pay except in cases of sickness; that in a case of sickness an absence in excess of 30 days should be with pay, so long as the department should retain upon its roll the sick employé; that after 30 days of absence in a case of sickness no leave of absence for a different cause could be granted with pay; that when 30 days' absence in any one year had been granted with pay, additional absence could be granted to the same party with pay in case of sickness. (1886) 18 Op. Atty. Gen. 352. Section 4 of Act March 3, 1883, inhibited heads of departments and the Executive from granting leave of absence to department clerks with pay and without charging the time against the period of absence allowed annually by law, in every case except that of the sickness of the clerk concerned. (1892) 20 Op. Atty. Gen. 303. Section 49 of Act March 1, 1889, in regard to leaves of absence of officers and employés of the United States who are members of the District of Columbia National Guard, was not repealed or modified by section 5 of Act March 3, 1893. The object of the former was to provide for the public defense and that of the latter to regulate leaves of absence for private reasons or purposes. (1896) 21 Op. Atty. Gen. 353. Leaves of absence under this section. -This act applied to the current year, and absences prior to July 1, 1893, must be taken into account in computing the total leave to which an employé may be entitled during the calendar year ending December 31, 1893. (1893) 20 Op. Atty. Gen. 607, 670. Heads of departments had no authority, under section 5 of Act March 3, 1893, to grant to clerks and employés sick leave with pay for more than 60 days in any one calendar year. (1893) 20 Op. Atty. Gen. 670. In the phrase of the proviso to this section, "in exceptional and meritorious cases," the word "meritorious" is surplusage, and the phrase must be read as equivalent to "exceptional as well as meritorious;" and the word "exceptional," is not susceptible of precise definition as matter of law. (1894) 20 Op. Atty. Gen. 716. In computing the annual leave and sick leave under this section, Sundays and holidays occurring during such absence should be charged against the absentee. (1894) 20 Op. Atty. Gen. 716; (1898) 22 Op. Atty. Gen. 77. An employé not connected with the department during the entire calendar year is not entitled to full annual or sick leave, which should be prorated. (1894) 20 Op. Atty. Gen. 728. The nature of the evidence required from applicants for leave and sufficiency of reasons for extending or limiting hours of labor are matters within the discretion of the Secretary, as to which the Attorney General cannot advise. Id. Leaves of absence of employés of the government in the discharge of military duties are not to be charged to the 30 days allowed them annually for rest and recreation. (1896) 21 Op. Atty. Gen. 353. But so much of this section as authorized sick leave, with pay, only in "exceptional and meritorious cases," etc., was nullified by Act July 7, 1898, § 1, post, § 239. (1898) 22 Op. Atty. Gen. 255. The President is without authority to grant an extension of leave of absence with pay to members of the Grand Army of the Republic employed in the government service who attend the annual encampment of that order. (1907) 26 Op. Atty. Gen. 336. But see § 239, post. § 239. (Act July 7, 1898, c. 571, § 1.) Annual leave of absence, notwithstanding leave on account of sickness. Nothing contained in section seven of the Act making appropriations for legislative, executive, and judicial expenses of the Government for the fiscal year eighteen hundred and ninety-nine, approved March fifteenth, eighteen hundred and ninety-eight, shall be construed to prevent the head of any Executive Department from granting thirty days' annual leave with pay in any one year to a clerk |