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It has always been held that Labor Day and Inauguration day, since they were made public holidays by statute, were public holidays within the purview of this statute not requiring work by the clerks or other employees of the Executive Departments proper on those days.
On January 8, 1904, by Executive order the hours of labor in the Executive Departments were fixed for every day in the year, except Sundays and legal holidays and holidays declared by Executive order, at from 9 a. m. to 4.30 p. m., except during the months of July, August, and September, and fixed for each Saturday in said months at from 9 a. m. to 1 p. m. This order reads:
"Departmental Order No.
Washington, January 8, 1904. "The act of Congress of March 15, 1898, provides as follows: "That * it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to require of all clerks and other employees of whatever grade or class, in their respective departments, not less than seven hours of labor each day, except Sundays and days declared public holidays by law or Executive order: Provided, That the heads of the department may, by special order, stating the reason, further extend the hours of service of any clerk or employee in their departments respectively; but in case of extension it shall be without additional compensation.'
"In order more effectually to comply with the above provision of law, it is hereby ordered:
"1. On and after Monday, January 11, 1904, the hours of labor for all clerks and other employees of whatever grade or class in this department will be from 9 a. m. to 4.30 p. m., with an allowance of one-half hour for luncheon.
"2. The foregoing provision will apply to all Saturdays except during the months of July, August, and September. During these months the hours of labor on Saturdays, unless otherwise ordered, will be from 9 a. m. to 1 p. m., without any allowance for luncheon."
No hours of labor were fixed for Sundays or legal holidays or days made holidays by Executive order, for the reason that by the express terms of this statute clerks and other employees in the Executive Departments are exempt from labor.
It is clearly apparent that this statute affects only the clerks and employees in the Executive Departments proper.
The navy-yard and gun factory in Washington are under the Navy Department, one of the Executive Departments referred to in the law, supra, but are not a part of this Executive Department, and their employees are not governed by this law requiring that the heads of the several Executive Departments shall fix the hours of labor of their clerks and employees at not less than seven.
By the express terms of the act,. supra, the President is authorized to declare, for the purposes of this act, any day in the year he sees fit to be a public holiday, and on such days as he does declare a legal holiday the clerks and other employees of the several Executive Departments are not required to labor.
It was not, in my judgment, within the power of the President, under this provision of law, to reduce the number of hours below seven of labor required of such clerks and other employees of the several Executive Departments on days other than Sundays and legal holidays and such other days as the President might declare to be legal holidays for the purposes of this act. He could, through the several heads of department, under the provisions of this act, extend and lengthen the hours of labor on working days beyond seven, but this extension of hours would be without additional compensation to the clerks and employees.
The legal effect of the Executive order, supra, was to make Saturday afternoons after 1 o'clock in the months of July, August, and September legal holidays in the Executive Departments here in Washington, and such order has been so treated. The President, in so declaring such Saturday afternoons legal holidays in the several Executive Departments, within the purview of said act, clearly acted within the letter and the intent of the law. But said Executive order did not cover or pretend to cover the employees of the Government situated in Washington or elsewhere not a part of the Executive Departments.
On June 13, 1904, the Acting Secretary of the Navy, acting for and on behalf of the President, issued the following order: "The Commandant, Navy- Yard, Washington, D. C.
"SIR: The President having under consideration the matter of having a half holiday during the summer months for the employees of the yard under your command, the superin
tendent of the Naval Gun Factory has recommended, if such a holiday be granted, that it be done in the following manner: Such employees as are present on Saturdays during the months of July, August, and September, whose services can be spared, will be excused for the last half of the day, and those whose services can not be spared and who are required to work the full eight hours will be allowed the one-half day on such other Saturdays when, in the discretion of the superintendent of the Naval Gun Factory or heads of their respective departments, their services can be spared.'
"You are therefore directed to grant such half holiday in the manner above set forth."
If such order is not in contravention of law it is quite apparent that whose services can be spared, and who are excused from labor on Saturday afternoons in July, August, and September, are entitled to pay for such afternoons the same as if they had performed their usual tasks.
Cry the 18-noyees of the navy-yard and gun factory
If I were of opinion that such order was in violation of law I would feel it my sworn duty, however unpleasant the task, considering the source from which it emanated, to hold that employees who were so excused from labor would not receive pay therefor, and disallow these items in the account of the disbursing officer who should make them; for it is my duty under the law, in so far as I am advised, to see that no illegal payments are made from the appropriations made by Con
The question for determination is, as regards payment to these employees for Saturday afternoons as aforesaid, Was the President acting within the scope of the law and within the powers inherent in his high office when he promulgated through his Secretary of the Navy said order?
Cabinet ministers are, in the language of the courts, simply the hands and instruments of the Chief Executive, through and by which he administers and executes the law and keeps the Government moving. Their acts of government are his acts if not repudiated.
This Executive order of June 13, 1904, excusing the employees of the navy-yard-that is, such of them as can be spared from labor-on Saturday afternoons in July, August, and September, is in line with many other Executive orders of like character promulgated and acted upon for more than
twenty years. Such orders have been issued and obeyed when the former Presidents have made by Executive orders special days legal holidays in the District of Columbia and elsewhere on occasions such as the deaths of our Presidents and ex-Presidents, and other special occasions.
Such has been the practical construction of these orders necessarily involving the authority of the President to make and execute them. But, regardless of such practical construction, let me for a moment consider his power and authority in the premises.
Before the act of March 15, 1898, supra, fixing the hours of labor for clerks and other employees in the Executive Departments, what must have been necessarily the power and authority of the heads of the several Departments acting for the President in fixing the hours and time of labor of their clerks and employees? Congress had not before fixed either. The power to so fix must have necessarily rested somewhere. It rested with the President of necessity, because he is responsible for the conduct of all the Departments and every branch of the Government service.
Congress has not fixed the hours of service required, in so far as I am advised, or relieved the President from the full measure of his responsibility on account of the service outside of the Executive Departments. This being the case, the President necessarily has the discretion to so fix. I know of no safer or better person to exercise this power, in the absence of legislation on the subject by Congress, than him who is the head of the Executive Departments and all under them, and who is responsible for the conduct and efficiency of all.
I have therefore the honor, in answer to the several questions raised by your communication, to say that in my judgment you are not legally authorized to pay the per diem employees of the navy-yard at Washington their several compensations for Labor Day or Inaugural Day unless they work on said days, in the absence of an Executive order excusing them from work on said days.
That under the terms of the said Executive order of June 13, 1904, you are authorized to pay all such employees for the Saturday afternoons who are excused thereunder from work.
That no distinction should be made between those serving in a clerical capacity and those working in the shops.
RATE OF EXCHANGE BETWEEN ENGLISH AND UNITED STATES MONEY.
Under section 3565, Revised Statutes, and paragraph 585, Consular Regulations of 1896, United States consuls in all countries are required to make reductions from English money to United States money at $4.8665 to the pound sterling.
(Decision by Comptroller Tracewell, August 19, 1904.)
On April 12, 1904, Alvin Smith, United States consul at Trinidad, British West Indies, appealed from the action of the Auditor for the State and other Departments in the final settlement of a number of accounts of the consul under various appropriations, upon which action has been suspended pending the receipt of information necessary to the intelligent settlement of the several questions raised by the appeal.
The only difficult question presented relates to a small disallowance made by the Auditor in the final settlement, per certificate dated February 6, 1904, of claimant's account for the quarter ending September 30, 1900, under appropriation "Contingent expenses, United States consulates, 1901."
Claimant in the rendition of his accounts converted English money into United States money, and vice versa, at $4.80 to the "sovereign or pound sterling" instead of $4.8665, as fixed by section 3565, Revised Statutes, and paragraph 585, Consular Regulations of 1896. The Auditor settled and adjusted the account upon the basis fixed by section 3565, debiting claimant with the difference on his receipts and crediting him with like differences on his disbursements, the disallowance referred to being the net difference between such debit and credit.
Respecting this action of the Auditor claimant submits the following statement:
Regarding the charges against me for exchange, occasioned by computing the pound sterling at $4.80 instead of $4.8665, I inclose herewith copy of a proclamation made October 28, 1853, wherein the value of English sterling was fixed at $4.80 to the pound and United States gold at the following values:
The eagle, or United States $10 gold piece, is valued at..