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13. Temporary head of department.—In case of the death, resignation, absence, or sickness of the head of any Department, the first or sole assistant thereof shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine,1 perform the duties of such head until a successor is appointed, or such absence or sickness shall cease. Sec. 177, R. S.

14. Temporary chief of bureau.-In case of the death, resignation, absence, or sickness of the chief of any Bureau, or of any officer thereof, whose appointment is not vested in the head of the Department, the assistant or deputy of such chief or of such officer, or if there be none, then the chief clerk of such Bureau, shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such chief or of such officer until a successor is appointed or such absence or sickness shall cease. Sec. 178, R. S.

15. Same-Designation by President.-In any of the cases mentioned in the two preceding sections, except the death, resignation, absence, or sickness of the Attorney-General, the President may, in his discretion, authorize and direct the head of any other Department or any other officer in either Department whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease." Sec. 179, R. S.

16. Restriction on temporary appointments.-A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than thirty days. Sec. 180, R. S., as amended by Act of Feb. 6, 1891 (26 Stat. 733).

17. Same. No temporary appointment, designation, or assignment of one officer to perform the duties of another, in the cases covered by sections one hundred and seventy-seven and one hundred and seventy-eight, shall be made otherwise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate. Sec. 181, R. S.

18. Same-Extra compensation not allowed.-An officer performing the duties of another office, during a vacancy, as authorized by sections one hundred and seventy-seven, one hundred and seventyeight [Rev. Stat.], and one hundred and seventy-nine [id.], is not by reason thereof entitled to any other compensation than that attached to his proper office. Sec. 182, R. S.

1 Section 179, Revised Statutes, paragraph 15, post.

'See XIX Opin. Att. Gen., 503.

'Sections 177 and 178, Revised Statutes, paragraphs 13 and 14, ante. The vacancy occasioned by the retirement of the head of a staff department may be temporarily filled by an ad interim appointment, under the authority conferred by section 179, Revised Statutes. (XIX Opin. Att. Gen., 500.) 'Sections 177 and 178, Revised Statutes, paragraphs 13 and 14, ante.

92061-17-2

19. Departmental regulations.-The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. Sec. 161, R. S.

20. Duties of chief clerks.-Each chief clerk in the several Departments, and Bureaus, and other offices connected with the Departments, shall supervise, under the direction of his immediate superior, the duties of the other clerks therein, and see that they are faithfully performed. Sec. 173, R. S.

21. Same-Monthly reports.-Each chief clerk shall take care, from time to time, that the duties of the other clerks are distributed with equality and uniformity, according to the nature of the case.

(X

The President speaks and acts through the heads of the several Executive Departments in relation to subjects which appertain to their respective duties. (Wilcox v. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755.) It is the general theory of departmental administration that the heads of the Executive Departments are the executors of the will of the President. Opin. Att. Gen., 527.) As a general rule the direction of the President is to be presumed in all instructions and orders issuing from the competent Department. (VII id., 453.) Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express reference to the direction of the President. (VII id., 453.) The duties of the heads of the several Executive Departments are derived, in part, from the Constitution, and are, in part, imposed by statute. In the execution of the former they act as the representatives of the President, to whom they are responsible for their correct performance. For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory rules and regulations as Congress may see fit to impose. (See Marbury v. Madison, 1 Cr., 137, and par. 1, note 1.)

The executive power is vested in a President, and so far as his powers are derived from the Constitution he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power, but it by no means follows that every officer in every branch of that Department is under the exclusive direction of the President. * * * There are certain political duties imposed upon many officers in the Executive Department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution, 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 v. U. S., 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 several 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 Department be examinable in a court of justice or not must always depend on the nature of the act. By the Constitution of the United States the President is invested with certain important political powers in the exercise of which he is to use his own discretion, 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

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