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to this inatter in order that he may give such directions as will secure from the quartermaster of the Marine Corps a correct rendition of his property accounts, to the end that the provisions of the act of March 29, 1894, may be complied with.


Assistant Comptroller.



A jury commissioner appointed under section 851 of the Revised Statutes

relating to the District of Columbia, which does not specify the manner in which his duties shall be performed, is entitled to compensation on furnishing the proof of service required by the regulations.


December 2, 1895. SIR: I am in receipt of yours of the 26th ultimo, asking whether you are authorized to pay Mr. Morris J. Adler, one of the jury commission, for the services rendered by him, under that clause in the appropriation act of March 2, 1895 (28 Stat., 958), which provides: “Compensation for jury commissioners, five dollars per day, not exceeding three days for any one term of court."

It appears from your statement that Mr. Adler was appointed by order of the chief justice of the supreme court of the Dis. trict under the provisions of section 851, Revised Statutes, District of Columbia, as amended by section 2 of the act of March 1, 1889 (25 Stat., 749); that he prepared the usual list of names of persons in his section to serve as jurors, and furnished the same to the chairman of the commission, which list of names was put into the jury box, but that Mr. Adler was out of the city on the three days when the jury commission met to confer and actually place the names in the box.

The regulations of the Department of Justice require that "the voucher of a jury commissioner must give the court for which service was performed and the dates for which per diems were charged, and the voucher should be sworn to by the jury commissioner.” This regulation is a reasonable one, and necessary in order to furnish the evidence to the accounting officers that the commissioner is in fact entitled to the pay which he claims. If Mr. Adler furnishes such a voucher you are author

ized to pay the same, as there is nothing in sections 851 and 852, Revised Statutes, District of Columbia, which specifies the manner in which the persons appointed by the court to select these juries shall perform their duties, and the presumption is that the duties were properly performed by Mr. Adler. Respectfully, yours,


Comptroller. Mr. ALBERT A. WILSON,

Marshal of the District of Columbia, Washington,


MENT OF AGRICULTURE. The act of January 12, 1895, requiring all printing and binding for the

Executive Departments to be done at the Government Printing Office, and the paper therefor to be furnished by the Public Printer, does not probibit the Secretary of Agriculture from purchasing, from the appropriation for putrition investigations, the paper required for charts to be lithographed at the office in the Weather Burean.


December 2, 1895. SIR: I am in receipt of yours of the 23d ultimo, asking whether paper for printing charts showing the nutritive value of various articles and commodities used for human food and the composition of rations can be paid for out of the appropriation “Nutrition investigations, 1896."

It appears that these charts will be independent of any other publication, and are to be lithographed at the Weatber Bureau of the Agricultural Department on account of the facilities there existing for lithographic work. As these charts are lithographed and not printed, and do not form part of a printed publication, they are not within the provisions of section 87 of the act of January 12, 1895 (28 Stat., 622), “providing for the public printing and binding and the distribution of public documents," which requires all printing to be done at the Government Printing Office. Section 31 of said act does not probibit the purchase of the paper required for these charts, because the charts are not to be printed at a departmental printing office under the control of the Public Printer, said section applying only to such offices. As the entire work might have

been done under contract by private parties and charged to the appropriation “Nutrition investigations, 1896,” the paper necessary to have such charts printed at the Weather Bureau may be paid for from said appropriation. Respectfully, yours,




The attorney for the Court of Private Land Claims, at an annual salary of

$3,500, is not prohibited by section 2 of the act of July 31, 1894, from being retained in a particular case as a special assistant to the United States attorney for New Mexico, his employment as such assistant not involving the holding of “any other office” within the meaning of said section.


December 3, 1895. The Auditor for the State and other Departments rendered the following decision, making an original construction of section 2 of the act of July 31, 1894, and submits the same for approval, disapproval, or modification by the Comptroller:

“Mr. Matthew G. Reynolds presents an account for $2,000 'on account' as special assistant United States attorney. The account is approved by the Attorney-General, payable from the appropriation “Pay of special assistant attorneys Uuited States courts, 1896. Mr. Reynolds holds the office of attorney for Court of Private Land Claims, for which he receives a salary of $3,500. By reason of his holding this office, does section 2, act of July 31, 1894 (28 Stat., 205), preclude him from receiving compensation as special assistant United States attorney? The prohibition referred to is as follows:

6. No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thou. sand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law.'

“The matter to be decided is whether or not Mr. Reynolds, as special assistant United States attorney, is an officer within the meaning of the law quoted. The appointment or employ. ment of Mr. Reynolds was under section 363, Revised Statutes, which is as follows:

16* The Attorney-General shall, whenever in his opinion the public interest requires it, employ and retain in the name of the United States such attorneys and counselors at law as le may thiuk necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings.'

6. This law was passed in 1862, and until the Attoi pey General's Office became one of the great Executive Departments in 1870 it is very clear, under the decision in the Germaine Case (99 U. S., 508), that anyone appointed under that law could not have been an officer, as the Attorney General was not the head of a Department, but the act of June 22, 1870 (16 Stat., 162), created the Department of Justice, and the appointee of the head of that Department may be an officer. The same law creating the Department also provided (section 366, Revised Statutes):

• • Every attorney or counselor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the Government is interested shall receive a commission from the head of such Department as a special assistant to the Attorney General or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys and shall be subject to all the labilities imposed upon them by law.'

- The commission or letter of appointment to Mr. Reynolds is as follows:


666 Washington, D. C., October 21, 1895. 666 SIR: You are hereby appointed a special assistant to the attorney of the United States for the Territory of New Mexico to aid in the preparation and trial of the prosecutions against James Addison Peraltareavis. Your compensation will be determined by the Attorney-General upon the completion of your services. Execute the customary oath of office and forward the same to this Department before entering upon the duties of your position. 66. Respectfully, yours,


66 Attorney-General. 66 • MATTHEW G. REYNOLDS, Esq.,

666 Of Missouri."" “ No infallible rule has been laid down by the courts which would be a test in every case whether the position is or is uot an office. In the comparatively recent case of United States v. Hartwell (6 Wall., 385–393), which has come to be recognized as a leading case on this subject, the court says:

"An office is a public station, or employment, conferred by the appointment of Government. The terin embraces the ideas of tenure, duration, emolument, and duties.'

“Applying this test to the case under consideration, the only

essential mentioned which is lacking is duration. The employment is in a special and particular case and the duties will cease when the trial shall be ended, which, I take it, is not such a duration as contemplated in the expression of the court referred to.

"In the case of United States v. Maurice (2 Brock., 103), Chief Justice Marshall said:

“Although an office is an employment, it does not follow' that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer.'

"It appears to me that this is this case. Mr. Reynolds has been employed by the Attorney-General under a contract, and express as to everything except amount of compensation. Mr. Reynolds is required to take an oath, but it does not follow that everyone who takes the oath of office is an officer (Kavanaugh v. State, 41 Ala., 399; State y. Wilson, 29 Ohio St., 347; Sweeny v. Mayor, 5 Daly, 271); but every officer must take an oath of office, and Congress, seeming to contemplate that the assistant attorney specially retained was not an officer and therefore not required to take the oath, specially prescribed that he should take the same oath as a district attorney (section 366, Revised Statutes). If the special assistants are not officers it does not follow that regular assistants appointed under the same law are not, as the character of their employ. ment is quite different. To strengthen the conclusion that I have arrived at after the examination of authorities that Mr. Reynolds is not an officer within the meaning of section 2, act of July 31, 1894, I find that provision is made for his payment in an appropriation separate and distinct from the appropriation for regular assistant attorneys, thus recognizing the dif. ference between them and affirming the temporary character of the employment. Section 2 of the act of July 31 is plain in its language and clear in its intent:

666 No person who holds an office * * * shall be appointed to or hold any other office to which compensation is attached.'

“He may receive pay for other employment, but he shall hold no office, and there must be no doubt that the employment is an office.

"I decide that Mr. Reynolds is entitled to amount of the account presented, but suspend the settlement and refer this decision to the Comptroller of the Treasury for his action under section 8, act of July 31, 1894.”

The construction placed upon section 2 of the act of July 31, 1894 (23 Stat., 205), by the Auditor is approved. For the difference between an office and an employment see Hallv. Wisconsin (103 U. S., 5).


Comptroller. 11268—VOL 2- 18

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