Gambar halaman
PDF
ePub

opening the proposals, a written report, with the original proposals, maps, and so forth, and the oaths prescribed by act of Congress approved June twenty third, eighteen hundred and seventy four, and to definitely state in said report the site selected by them, and their selection of the site shall be final, and each commissioner shall be allowed a compensation for his services of an amount within the discretion of the Secretary of the Treasury, said compensation not to exceed two hundred dollars and actual traveling expenses to each commissioner." It seems entirely clear that Mr. Fleming is not precluded from receiving the compensation provided by said act for a commissioner because of the provisions of section 1765, Revised Statutes, for as such commissioner he holds a separate and distinct office, position, or employment from that which he holds as Chief of the Law and Records Division in the office of the Supervising Architect of the Treasury, each of which places has its own duties and compensation (United States v. Saunders, 120 U. S., 126).

A more serious question, however, is presented by section 2 of the act of July 31, 1894 (28 Stat., 205), which provides:

"No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand 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."

Mr. Fleming claims that neither as chief of division in the Architect's office nor as a commissioner to select the site of the Government building at Pottsville did he hold an office within the meaning of that act. What is necessary to constitute an officer is not easily determined. It has been under discussion in many cases in the Supreme Court (United States v. Hartwell, 6 Wall., 385; United States v. Germaine, 99 U: S., 508; Hall v. Wisconsin, 103 U. S., 5; United States v. Brindle, 110 U. S., 688; United States v. Mouat, 124 U. S., 303; United States v. Hendee, 124 U. S., 309; and other cases). If Mr. Fleming's position as chief of division had been specifically provided for by statute, it is clear that he would have been an officer of the United States even within the constitutional sense of that word, but in order to be an officer within the meaning of certain statutes it is not necessary that he should be a constitutional officer, for the word "officer" may have a different meaning in different statutes. This is well brought out by the two cases of United States v. Mouat and United

States v. Hendee (supra), in the first of which it was held that a Navy paymaster's clerk was not an officer of the Navy within the meaning of the act of June 30, 1876 (19 Stat., 65), so as to be entitled to the benefits of the mileage allowed by that act, while in the latter of which it was held that he was an officer of the Navy within the meaning of the provision in the act of March 3, 1883 (22 Stat., 473), relating to longevity pay of officers and enlisted men in the Army and Navy. The posi tion which Mr. Fleming holds in the Architect's office is prescribed by a regulation of the Secretary of the Treasury, made in accordance with law, to which specific duties of a permanent and continuous character are attached, and will continue, notwithstanding there may be a change in the persons occupying the offices of Supervising Architect and Secretary of the Treasury. His compensation is a fixed annual salary, amounting to more than $2,500 per annum. If Mr. Fleming is not technically an "officer" of the United States within every meaning of that word, I am inclined to the opinion that he is an officer within the meaning of the word as used in section 2 of the act of July 31, 1894. The same policy which precludes an officer who is technically such from holding another office applies with equal force to a person holding such a position or employment as Mr. Fleming does. In the case of Matthew G. Reynolds (ante, p. 271), in which it was held that a special United States attorney employed by the Attorney-General to assist a district attorney in one particular case only was not an officer within the meaning of section 2 of the act of July 31, 1894, it was suggested that the decision might have been otherwise as to a regular assistant district attorney, appointed by the Attorney-General under the same law, but the character of whose services would be entirely different, being permanent and continuous and not occasional and temporary, as in the case of a special assistant attorney. Mr. Fleming's posi tion is more like that of a regular assistant district attorney than that of a special assistant district attorney. In view of what follows, it is not necessary, however, to determine whether the position which Mr. Fleming holds in the Architect's office is an office within the meaning of the act of July 31, 1894.

The question still left for determination is whether the position of a commissioner to select the site of the Pottsville public building, to which Mr. Fleming was appointed, is an office

within the meaning of said act. The commissioners were required to be appointed by the Secretary of the Treasury, the head of one of the Executive Departments. The duties of the commissioners and the compensation which they were to receive were prescribed by the act. But this does not necessarily make them officers. Their duties were not permanent and continuous, but were temporary only, and ceased when they had made a written report of the performance of the single act which they were required to do. Such temporary service does not constitute the character of duty usually stated as pertaining to a public office, which embraces "the ideas of tenure, duration, emolument, and duties" (United States v. Hartwell, 6 Wall., 385–393). Tenure and duration imply permanency of duties, and not such as are limited to the accomplishment of a single specific act. Commissioners to erect public buildings for States or counties have in several cases been held not to hold offices within the meaning of certain State constitutional provisions, because the duties which they were required to perform were not, strictly speaking, governmental, and were limited to the accomplishment of the special purposes for which they were appointed (Bunn v. The People, 45 Ill., 397; McArthur v. Nelson, 81 Ky., 67; see also Travelers' Insurance Company v. Township of Oswego, 59 Fed. Rep., 58). In Buren v. The People, 45 Ill., 397-405), Chief Justice Breese said:

"So far as we have any knowledge on this subject, or are enabled to judge from the facts of contemporaneous history, no one has ever supposed the legislature had not full power to appoint and employ all such agents as might be deemed necessary by them to perform duties not of a permanent, but of a transient and incidental character, such as we see in abundance in our statute books. No one has ever exalted such employees to the position of an officer, though their duties might require months or years for their full performance. There is no enduring element in these employments, nor designed to be; the duty being performed, the place is vacant by the very fact of performance."

As the act of July 31, 1894, creates not merely a prohibition upon receiving the compensation of the second office, but upon holding the same, if the word "office" in that act was intended to include positions of such a temporary character as a commissioner for the selection of the site of a public building, it would seem that Mr. Fleming by accepting the appointment

as a commissioner vacated the position which he held in the Architect's office (In re Accounts of Harsha, ante, p. 33). If so, no prohibition exists upon his receiving the compensation attached to the position of commissioner, whatever effect it may have upon his right to receive compensation as chief of division in the Architect's office. In my opinion the statute was not intended to apply to such a case as this, and that such a temporary position as a commissioner to select the site of a public building is not an office within the meaning of that statute. Such a position is much like that of a special district attorney, which was decided in the Reynolds Case (ante, p. 271) not to be an office within the meaning of the statute.

The action of the Auditor in disallowing Mr. Fleming's claim is therefore overruled, and it will be now allowed upon this revision.

R. B. BOWLER,
Comptroller.

IN RE CLAIM OF S. S. BOYER, LATE ACTING ASSISTANT SURGEON, UNITED STATES ARMY, FOR REIMBURSEMENT OF TRAVELING EXPENSES AND FOR MILEAGE.

An officer furnished with "transportation orders" which assure him carriage by the ordinary route of travel is not at liberty to select some other route, for his own convenience, and then claim reimbursement of cost of travel.

The act of June 16, 1874, providing that no credit shall be allowed for payment or allowances for travel in excess of the amount actually paid, operates as a bar to the payment of "mileage," even though, as a matter of law, the claim may be valid.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

March 27, 1896.

S. S. Boyer, late acting assistant surgeon, United States Army, appeals from the action of the Auditor for the War Department as evidenced by his decision No. 225999 of January 18, 1896.

The claim is for reimbursement of the cost of transportation while traveling under orders in 1868 and 1870, and for the difference between mileage and actual expenses while returning from San Francisco, Cal., to Washington, D. C., in November, 1874.

It appears that in 1868 and in 1870 "transportation orders" were issued to the officer providing for transportation by the ordinary routes of travel, but he failed to use said orders, because he preferred some other route, paying his expenses by the route selected by himself. The Auditor disallowed this portion of the claim, for the reason that the officer had not the right to choose the route he would travel by, but must use the "orclers" furnished him, or bear the cost himself.

This conclusion was correct. When an officer is furnished with "transportation orders" providing him with transportation by the ordinary route, he is not at liberty, for his own. convenience, to select some other route and claim reimbursement of cost of travel, although in cases of necessity or emergency this may be done.

In 1871 Mr. Boyer entered into written contract to render service as surgeon in the Army at a stipulated rate of compensation per month. The contract also provided that upon the annulment of the same, he should be entitled to "mileage" to Washington, D. C.

While stationed at San Francisco, Cal., the contract was annulled November 30, 1874, and the officer was paid his actual expenses from that place to Washington, D. C. The Auditor disallowed the claim for the difference between actual expenses and mileage, for the reason that the act of June 16, 1874 (18 Stat., 72) fixes actual expenses as the maximum traveling allowance. The act in question provides:

"That only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States, and all allowances for mileage and transportation in excess of the amount actually paid are hereby declared illegal; and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision."

Without passing upon the question as to whether the act operates to invalidate a claim arising under a contract entered into prior to the passage of the law referred to, I am of the opinion that the payment of such claim is prohibited by the act in question; and the action of the Auditor is therefore affirmed.

EDW. A. Bowers,
Assistant Comptroller.

« SebelumnyaLanjutkan »