CHIEF CLERKS; DISBURSING CLERKS. Par. 21. Duties of chief clerks. Par 23. Action on report. 22. To distribute clerical duties; monthly 24. Disbursing clerks; duties and com reports. pensation. 21. Each chief clerk in the several Departments, and Chief clerks to Bureaus, and other offices connected with the Departments, diate clerks supervise stibor proper, which is not repugnant to any rights secured and protected by the Constation, and in such cases the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the President, and this is emphatically the case where the duty is of a ministerial character. Kendall e US, 12 Pet., 524, 610. See, also, the title Army Regulations in the chapter entitled THE REVISED STATUTES; THE STATUTES AT LARGE; THE ARMY REGULATIONS, Ministerial and discretionary duties. —The duties performed by the heads of the seyeral Executive Departments are either ministerial or discretionary or quasi judicial in character. The question whether the legality of an act of the head of a DepartLent be examinable in a court of justice or not must always depend on the nature of "he act. By the Constitution of the United States the President is invested with cerain important political powers in the exercise of which he is to use his own discreton, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity to his orders. In such cases their acts are his acts, and, whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control their discretion. The subjects are political They respect the nation, not dividual rights, and being intrusted to the Executive, the decision of the Execu five is conclusive. *** The conclusion is that where the heads of Departments are the political or confidential agents of the Executive, merely to execute the will of the President, nothing can be more perfectly clear than that their acts are only politically examinable. Marbury r. Madison, Í Cr., 137, 166; Kendall r. U. S., 12 Pt, 524, 611; Decatur r. Paulding, 14 Pet., 497, 515. We are not aware of any case in England or this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable for an error of judgment. * A public officer is not liable to an action if he falls into error in a case where the act to be done is not erely a ministerial one but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. Kendall 1. Stokes, 3 How., 87, 98; Gould e. Hammond, 1 MeAll., 235, 243; Noble r. Union River Logging Co., 147 U. S., 165, 171. A ministerial duty the performance of which may in proper cases be required of the head of a Department by judicial process is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. Mississippi r. Johnson, 4 Wall., 475, 498; Marbury . Madison, 1 Cr., 137; Kendall r. Stockton, 12 Pet., 524. As a mandamus can only be granted because there is no other adequate remedy at law, an action for damages can not be afterwards sustained for the same cause of action, the two being inconsistent. Kendall r. Stokes, 3 How., 87, 102. Liability for damages.-The executive officers of the United States are personally liable at law for damages, in the ordinary forms of action, for illegal official or ministerial acts or omissions to the injury of an individual. Marbury . Madison, 1 Cr., 137, 166; Gaines r. Thompson, 7 Wall., 347; Amy r. The Supervisors, 11 Wall., 136, 137, 166. Where a ministerial officer acts in good faith he is not liable in exemplary damages for an injury done, but he can claim no further exemption where his acts are clearly against the law. Tracy r. Swartwout, 10 Pet., 80. Measure of damages.-Where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. A mistake as to his duty and honest intentions will not excuse the offender. Amy r. The Supervisors, 11 Wall., 136. Where an action is brought for an injury done in the discharge of an official duty, the damages are measured generally by the extent of that injury. Bispham . Taylor, 2 McLean, 408. Pierce . Strickland, 2 Story, 2. For general provisions respecting.public officer, see Chapter IV and par. 4, ante. 202, s. 13, v. 5, p. 525. Aug. 26, 1842, c. shall supervise, under the direction of his immediate supe rior, the duties of the other clerks therein, and see that they are faithfully performed." Sec. 173, R. S. distribute duties, etc. Aug. 26, 1842, c. 525. Sec. 174, R. S. case. Chief clerks to 22. Each chief clerk shall take care, from time to time, that the duties of the other clerks are distributed with 202, s. 13, v. 5, p. equality and uniformity, according, to the nature of the He shall revise such distribution from time to time, for the purpose of correcting any tendency to undue accumulation or reduction of duties, whether arising from individual negligence or incapacity, or from increase or diminution of particular kinds of business. And he shall report monthly to his superior officer any existing defect. that he may be aware of in the arrangement or dispatch of business. Duty of chief on receipt of report. Aug. 26, 1842, c. 525. 23. Each head of a Department, chief of a Bureau, or other superior officer, shall, upon receiving each monthly 202, s. 13, v. 5, p. report of his chief clerk, rendered pursuant to the precedSec. 175, B. S. ing 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. Disbursing clerks. c. 1855, c. 175, s. 4, v. 3, 1873, c. 226, s. 1, Sec. 176, R. S. 24. The disbursing clerks authorized by law in the Mar. 3, 1853, e. several Departments shall be appointed by the heads of 209, 211; Mar. 3, the respective Departments, from clerks of the fourth 10, p. 669; Mar. class; and shall each give a bond to the United States for v. 17, p. 485 (492) the faithful discharge of the duties of his office according to law in such amount as shall be directed by the Secretary of the Treasury, and with sureties to the satisfaction of the Solicitor of the Treasury; and shall from time to time renew, strengthen, and increase his official bond, as the Compensation. Secretary of the Treasury may direct. Each disbursing clerk, except the disbursing clerk of the Treasury Department, must, when directed so to do by the head of the Department, superintend the building occupied by his Department. Each disbursing clerk is entitled to receive, in compensation for his services in disbursing, such sum in addition to his salary as a clerk of the fourth class as shall make his whole annual compensation two thousand dollars. a year. For authority of chief clerks to administer oaths of office, see the act of August 29, 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk of the War Department, see paragraphs 22, 23, and 134 post. to Clerks Sec. 169, R. S. Clerks etc be yond provisions by 'aw See 5 Aug 15, 1876, v. 19, p. 169 Employees to cine appropria Sec. 4, Aug 3, 25. Each head of a Department is authorized to employ Authority in his Department such number of clerks of the several and other classes recognized by law, and such messengers, assistant, Mar. 3, 1975 e messengers, copyists, watchmen, laborers, and other em- 1, ployees, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year." 26. The executive officers of the Government are hereby Employing prohibited from employing any clerk, agent, engineer, 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, art of August 15, 1876 (19 Stat. L., 169). 27. No civil officer, clerk, draughtsman, copyist, mes be paid from spe senger, assistant messenger, mechanic, watchman, laborer, tions on y or other employee shall, after the first day of October next, 12, v. 22, p. 26. 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. For authority of chief clerks to administer oaths of office, see the act of August 29, 1890 (26 Stat. L., 371), paragraph 49 post; for statutory duties of the chief clerk of the War Department, see paragraphs 22, 23, and 134 post. For rules regulating the procurement of services in the several Executive Departments see, in Chapter IV, the title The Civil Service. 22924-08-2 Civil officers, etc., elsewhere be detailed for trict of Colum bia. R. S. 172 pealed. re 28. After the first day of October next section one hunemployed, not to dred and seventy-two of the Revised Statutes, and all other duty in the Dis- 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.1 Sec. 4, act of August 5, 1882 (22 Stat. L., 255). Prohibition of 29. Hereafter no Department or officer of the United States shall 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. Act of May 1, 1874 (23 Stat. L., 17). voluntary service. May 1, 1874, v. 23, p. 17. Civil pension 30. The establishment of a civil pension roll, or an honroll prohibited. Feb. 24, 1899, v. orable service roll, or the exemption of any of the officers, clerks, and persons in the public service from the existing 30, p. 846. Payment persons perma laws respecting employment in such service is hereby prohibited. Act of February 24, 1899 (30 Stat. L., 846). 2 · of 31. The appropriations herein made for the officers, nently incapaci- clerks, and persons employed in the public service shall tated. 'The act of August 5, 1882 (22 Stat. L. 255), contained the following provisos: "That the sums herein specifically appropriated for clerical or other force heretofore paid for out of general or specific appropriations may be used by the several heads of Departments to pay such force until the said several heads of Departments shall have adjusted the said force in accordance with the provisions of this act; and such adjustment shall be effected before October first, eighteen hundred and eightytwo. And in making such adjustment the employees herein provided for shall, as far as may be consistent with the interests of the service, be apportioned among the several States and Territories according to population: Provided further, That any person performing duty in any capacity as officer, clerk, or otherwise in any Department at the date of the passage of this act who has heretofore been paid from any appropriation made for contingent expenses or for any contingent or general purpose, and whose office or place is specifically provided for herein, under the direction of the head of that Department, may be continued in such office, clerkship, or employment without a new appointment thereto, but shall be charged to the quotas of the several States and Territories from which they are respectively appointed, and nothing herein shall be construed to repeal section 166 of the Revised Statutes of the United States." See also 3 Dig. Dec. 2nd Compt., par. 82. 2 Section 2 of the act of June 2, 1900 (31 Stat. L., 261), contained a similar require ment. not be available for the compensation of any persons permanently incapacitated for performing such service.' Act of March 3, 1901 (31 Stat. L., 1009). 31. p 1009 36. Reduction to lower grade. 77, s. 3. v. 10, p. 209. Mar. 3, 1855, e. 175, Classification Mar. 3, 1883 e s. 4. v. 10. p_neza. Sec. 163, R. §. Examinations Mar 3, 18G 2009 Mar. 3, 1 669 1,410, p. sec. 164, R. S. 32. The clerks in the Departments shall be arranged in of Ipartment four classes, distinguished as the first, second, third, and fourth classPS. 33. No clerk shall be appointed in any Department in either of the four classes above designated until he has 3 v 10 p been examined and found qualified by a board of three examiners, to consist of the chief of the Bureau or office into which such clerk is to be appointed and two other clerks to be selected by the head of the Department.* 34. 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 condi- 2, 20 tions, and with the same compensations, as are prescribed for men. Clerkships open to women 251, 2, v. 16, pp. Sec. 165, R. S. clerks Sec. 3. May 24, 1896, v. 29. p. 179 35. Each head of a Department may, from time to time, Distribution of 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 heretofore made are hereby revoked, but may be renewed as provided herein. Sec. 3, act of May 28, 1896 (29 Stat. L., 179). 'The acts of February 24, 1899 (30 Stat. L., 846), and April 17, 1900 (31 ibid., 134), contained the same requirement. For rules regulating appointments in the several Executive Departments in the city of Washington and elsewhere, see the title The Civil Service in the chapter entitled PROVISIONS APPLICABLE TO THE SEVERAL CLASSES OF OFFICERS, See also paragraph 25 ante. |