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payment in completing the work to be performed under the contract of December 11, 1894, which does not expire until June 30, 1896, and which has no limitation of the amount to be expended in the completion of this work. Respectfully, yours,
Edw. A. BOWERS,
Assistant Comptroller. The SECRETARY OF WAR.
HOLDING BY THE SAME PERSON OF THE OFFICE OF CONSTABLE AND SPECIAL DEPUTY MARSHAL
IN THE INDIAN TERRITORY. A person who holds the office of constable of a commissioner's court in
the Indian Territory, and is appointed as a special deputy marshal under section 2 of the act of March 1, 1895, by the inarshal of the district in which the commissioner's court is located, is entitled to compensation for performing the duties of both offices.
June 12, 1896. SIR: I am in receipt of your letter of May 8, stating that Mr. E. L. Garner, who was duly appointed and qualified as constable in the Indian Territory, without resigning or being removed from said office, was subsequently appointed and qualified as an emergency special deputy in the Territory under section 2 of the act of March 1, 1895 (28 Stat., 693); that he acted as such deputy marshal from August 7, 1895, to October 6, 1895, during which time he also continued to act as constable. You ask the following questions:
“ First. Am I authorized to pay Mr. Garner the salary as constable during the time he acted as deputy marshal, making it continuous from the date of his qualification as constable until the termination of his service as constable by death, resignation, or removal?
"Second. If I am authorized to pay him as constable during the time he acted as deputy marshal, will section 1764 of the Revised Statutes of the United States prevent the payment to him of the salary as deputy marshal also ?
“ Third. Am I authorized to stop the payment of his salary as constable and pay his salary as deputy marshal during the time stated ?
6 Fourth. If so, will I be authorized to resume the payment of his salary as constable at the expiration of his service as deputy marshal?"
As deputy marshal Mr. Garner held a separate and distinct office, place, or position from that held by him as constable, and under the decision of United States v. Saunders (120 U. S., 126) he is entitled to receive the compensation attached to botlı of those positions unless the duties of those offices are so far incompatible that they can not be performed by the same man. The duties of a constable in the Indian Territory are limited to the commissioner's district for which he is appointed, while the duties of a deputy marshal are not so limited, and may be performed in any part of the district of the marshal whose deputy he is. As the district of the marshal by whom Mr. Garner was appointed a deputy includes the commissioner's district for which Mr. Garner was appointed constable, and as Mr. Garner was appointed an emergency deputy, it may be that his duties as deputy were confined to the district of which he was constable, and therefore it may not have been incompatible for him to hold the two distinct positions, although the marshal might have required him to do duty as deputy outside of the district for which he was appointed a constable. As an emergency deputy his appointment could only be authorized by the judge who had appointed him as constable, and who was therefore empowered to remove him had he deemed such act necessary or proper. As Mr. Garner continued to hold the position of constable and to perform its duties, it is to be presumed that the judge did not deem the holding of the position of deputy marshal as incompatible with that of constable, and as said by Attorney-General Devens (16 Opin. A. G., 8), “it is for the appointing power to determine whether he can properly and fully perform the duties of the two offices” in cases where there is no manifest incompatibility between them. Under the circumstances I am not prepared to say that the duties of the two positions might not have been properly performed by Mr. Garner, and as he was permitted by the appointing powers to hold the two positions at the same time, he is authorized to receive the salary attached to each.
It is manifest, however, that there might arise occasions when it would be difficult if not impossible for one person to perform the duties of a constable and of a deputy marshal at the same time, and as the practice of appointing the same man to the two positions is one liable to great abuse, it is respectfully suggested that the attention of the AttorneyGeneral be brought to this matter, in order that he may, if he deem such course proper, under the power conferred upon him in section 362, Revised Statutes, to regulate the manner in which marshals shall discharge their duties, direct the marshals in the Indian Territory not to appoint as a deputy anyone who is already a constable. Respectfully, yours,
R. B. BOWLER,
Comptroller. Mr. HENRY RECHTIN,
Disbursing Clerk, Department of Justice.
IN RE CLAIM OF MAJ. WILLIAM F. SMITH, UNITED
STATES ARMY, RETIRED, FOR COMPENSATION AS UNITED STATES AGENT IN CHARGE OF CERTAIN RIVER AND HARBOR IMPROVEMENTS.
Section 7 of the river and harbor act of June 3, 1896, excepts from the
operation of section 2 of the act of July 31, 1894–providing that “No person who holds an office the salary or annual compensation attached to which amounts to the sum of $2,500 shall be appointed to or hold any other office to which compensation is attached, unless specially heretofore or hereafter specially authorized thereto by law”-retired officers of the Army and Navy when employed to do work under the direction of the Chief of Engineers of the Army in connection with the improvement of the rivers and harbors of the United States, and also authorizes the payment to such officers heretofore employed of any amounts agreed upon as compensation for such employment.
June 12, 1896. As provided by section 8 of the act of July 31, 1894 (28 Stat., 208), the Auditor for the War Department has transmitted the following construction of section 2 of said act:
“I have the honor to transmit herewith a portion of an account of Maj. William F. Smith, retired, United States agent, stationed at Wilınington, Del., and accompanying papers and vouchers, in compliance with the requirements of section 8, act of July 31, 1894 (28 Stat., 208), and to submit a decision thereon making an original construction of a portion of section 2 of said act.
“William F. Smith, a major of engineers, on the retired list of the Army, is entitled to receive and receives as such officer an annual compensation of twenty-six hundred twenty-five dollars ($2,625).
“Section 2 of the act of July 31, 1894 (23 Stat., 205), provides, among other things, as follows: «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; but this shall not apply to the retired officers of the Army or Navy whenever they may be elected to public office, or whenever the President shall appoint them to office by and with the advice and consent of the Senate.'
“On July 15, 1884, by authority of the Secretary of War, Major Smith was appointed to his present position, that of United States agent in charge of certain river and harbor improvements, and has continuously held the same at a compensation of three thousand dollars ($3,000) per annum.
"On July 23, 1884, a bond was given with two approved sureties, in the penal sum of ten thousand dollars ($10,000) for the .faithful discharge of all the duties of said office of United States agent, which bond was approved by the Secretary of War July 24, 1884, and was filed in the office of the Second Comptroller August 4, 1884.
"The question for decision is whether the position lield by Major Smith as United States agent is an office within the meaning of the law.
"It will be seen that Major Smith's appointment was made in a regular way by the authority of the head of the War Department, and that he was placed in charge of such works of river and harbor improvement as have been assigned to him by the Chief of Eugineers, that his compensation has been regular at the rate of three thousand dollars per annum and actual and necessary traveling expenses, and that he executed and filed the required official bond for the faithful disbursement of public funds.
"As his position or employment contains all the characteristics of the usual definition of an office, embracing the ideas of tenure, duration, emoluments, and duties, Maj. William F. Smith seems to hold an office within the meaning of section 2, act of July 31, 1894, and the vouchers referred to for the pay. ment of salary for period subsequent to July 31, 1894, are accordingly disallowed as shown by the accompanying statement of differences.
“The items affected by this decision will be suspended and payment thereof withheld until you shall approve, disapprove, or modify such decision, and certify your action to this office.”
Whether such a position as that held by Major Smith in his capacity as United States agent is an office within the meaning of section 2 of the act of July 31, 1894, may be left an open question, since it is unnecessary, in view of recent legislation, to determine it; for now, even if the position of United States agent in connection with river and harbor improvements be an office, it may be held by a retired army or navy officer.
Since the Auditor's action, the following legislation has been enacted in the recently passed river and harbor act of June 3, 1896:
“SEC. 7. That section two of the act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-five, and for other purposes, approved July thirty-first, eighteen hundred and ninety-four, shall not be so construed as to prevent the employment of any retired officer of the Army or Navy to do work under the direction of the Chief of Engineers of the United States Army in counection with the improvement of the rivers and harbors of the United States, or the payment by the proper officer of the Treasury of any amounts agreed upon as compensation for such employment."
Had this legislation been in existence at the date of the Auditor's construction, it is not improbable that he would have decided that Major Smith was entitled to the payınents claimed. It makes another exception to the prohibition contained in section 2 of the act of July 31, 1894, by taking out of the provisions of that section retired army and navy officers when employed in this special kind of work.
There can be no question that this new legislation authorizes the employment and payment of any retired officer of the Army or Navy in connection with river and harbor improvements in the future. The only question is whether this section authorizes the payment of the accounts now before me, and I am of the opinion that a fair construction of the concluding alternative of the section, to wit, that section 2 of the act of July 31, 1894, “shall not be so construed as to prevent * * * the payment by the proper officer of the Treasury of any amounts agreed upon as compensation for such employment," justifies the allowance of the vouchers in question.
In view, therefore, of the changed status of this case, I do not pass upon the construction of the Auditor, as the amounts claimed by Major Smith are now allowable.
EDW. A. BOWERS,