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$2,000 per annum. This is not a statutory position, being payable from appropriation, Miscellaneous expenses, Bureau of Labor, 1905, for employment of experts and temporary assistance,' This position was held until time of resignation, at close of office hours, December 31, 1904.” It thus appears that on December 31, 1904, Captain Morse resigned from the position held by him in the Bureau of Labor. The first and second questions presented by the Paymaster-General presuppose a continuance of the state of facts which existed on December 31, 1904; but, as there was a material change therein on that date, any decision rendered by the Comptroller of the Treasury thereon would have no force.
In response to the third question asked by him, it appears by General Orders, No. 191, of the War Department, dated December 21, 1904, that in pursuance of the act of April 23, 1904 (33 Stat., 264), Captain Morse, having been duly nominated to the Senate for advancement in grade, and the Senate, on December 16, 1904, having advised and consented thereto, was by the President placed on the retired list with the rank and date of rank of major from April 23, 1904.
The third question of the Paymaster-General involves the particular question whether Captain Morse can decline to accept the rank and pay of major conferred upon him in pursuance of said act. The provisions of the act are as follows: That any officer of the Army below the grade of brigadier-general who served with credit as an officer or an enlisted man in the regular or volunteer forces during the civil war prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official register of the Army, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service, or on account of age or after forty years' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Army with the rank and retired pay of one grade above that actually held by him at the time of retirement:" * *
The act of the President in placing Captain Morse on the retired list with the rank and pay of major, in pursuance of the provisions of this act, was not an appointment to the office of major of the Army. The rank and pay of officers of the
Army are subject to control by Congress; and such action does not require a new appointment by the President. (Wood v. United States, 107 U. S., 414.) In the present case the President has not appointed Captain Morse a major of the Army; but by General Orders, No. 191, supra, the President, in pursuance of said act, placed him on the retired list with the rank of major. When so placed on the retired list with the rank of major, by the terms of the act he became entitled to the pay of major of the Army on the retired list. Therefore on the date that he was so placed on the retired list with the rank of major, the rank and pay of major of the Army on the retired list became attached to the office of captain of the Army held by him.
Where a person has been appointed to an office he may decline to accept it. In such case the office does not vest in him. But the appointment itself may be complete and irrevocable, irrespective of the right of the appointee to decline it. In Marbury v. Madison (1 Cranch, 162), Chief Justice Marshall said:
"Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the Executive, the appointment is not revocable, and can not be annulled. It has conferred legal rights which can not be resumed. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it."
* * *
In the present case, the statute authorizes the President, by and with the advice and consent of the Senate, to place certain officers of the Army on the retired list with the rank and retired pay, in any case, of one grade above that actually held by the officer at the time of his retirement. This is merely a -change of rank and pay, which are entirely within the control of Congress. When an officer is so placed on the retired list, the act of the President is complete, and I think it is irrevocable. The rank and retired pay of the next higher grade thereby become, by operation of law, attached to the office held by the officer at the time. This is the effect of the faw itself, and it does not require any action by the officer to complete it.
I am therefore of opinion that it is not in the power of Captain Morse to nullify the action of the President in placing him on the retired list with the rank of major. It requires no acceptance, and therefore does not admit of declination. Where the pay of an office is directly increased by Congress the increased pay attaches to the office at once and does not require acceptance by the officer. Where the increased pay is granted by the statute, not in the discretion of an executive officer, but is made to depend upon specified action to be taken by such officer, which action is within his discretion, when such action has been taken I think the effect is the same.
No doubt Captain Morse might decline to receive the additional pay of the higher rank, as he might decline to receive the pay of captain, but the pay would still be attached to the office, and, notwithstanding such declination, he would be prohibited by section 2 of the act of July 31, 1894 (28 Stat., 205), from holding any other office, except as therein provided for, to which compensation is attached. Probably, also, such declination would not prevent him or his personal representatives, in case of his death, from subsequently recovering the amount of pay not received by him.
For your information I will inclose herewith a decision rendered by me to the Secretary of the Treasury, under date of February 4, 1905, in the case of Captain Schriener, retired, in which the question of his holding another office having compensation attached thereto, after he had been placed on the retired list in pursuance of the act of April 23, 1904, supra, is considered.
PAY OF A MARSHAL AFTER THE RECEIPT BY HIM OF THE NOTICE OF HIS REMOVAL.
Where a marshal was removed from office, and the removal was "to take effect immediately," he is not entitled to compensation after the receipt by him of notice thereof.
(Comptroller Tracewell to A. C. Caine, disbursing clerk, Department of Justice, February 15, 1905.)
I am in receipt of your letter of the 10th instant, which
"Frank H. Richards, who was serving as United States marshal for the second division of the district of Alaska, was
removed by the President, the order of removal being dated 'Washington, November 17, 1904,' and reading as follows:
"You are hereby removed from the office of United States marshal for the second division of the district of Alaska, to take effect immediately.'
"This order of removal was, on the date thereof, mailed to Mr. Richards, at Nome, Alaska, and a telegram notifying him of his removal was sent to him from the Department of Jus
tice on the same date.
"I have no definite information as to the date on which Mr. Richards received either the telegram or the written order of removal, but under date of November 25, 1904, he wrote the Department, as follows:
'On the 15th instant I forwarded you vouchers for the salaries of myself, deputies, and clerk for the month of November, 1904. Since that time I have been removed by the President, and the removal takes effect at the close of business to-night.'
"The Department received a telegram from the judge of the second division of the district of Alaska, dated November 24, 1904, to the effect that on November 23, 1904, he appointed John H. Dunn under the provisions of the act of June 24,
"Mr. Richards and his deputies now claim salaries up to and including November 25, 1904, and Mr. Dunn and his deputies claim salaries from November 26, 1904, inclusive.
"I have the honor to ask whether I am authorized to pay the salary of Mr. Richards or the salaries of his deputies for any time after November 17, 1904, and, if so, for what time. See your manuscript decision of December 14, 1899, in the case of James C. Blaine, who served as deputy under Marshal Williams, who was removed by the appointment of Marshal Shoup."
The order of removal by the President became effective to create a vacancy in the office of marshal from the date of its reception by Mr. Richards. Any time that he held the office of marshal after he was notified of his removal he was holding it as a de facto officer over the protest of the removing power, and not as an officer de jure. Therefore he is not entitled to receive any salary after the date of his notification of removal.
The salaries of his deputies are upon a somewhat different basis. They were not removed, but go out of office with their chief, except as to the service of process in their hands at the date when he goes out.
In the absence of a statement by you as to when notice was received by Mr. Richards of his removal, I am unable to state to just what period in November he should be paid. He had
evidently received notice of his removal on November 25; how long before I can not say from the facts stated. If his deputies do not claim for time spent in the service of process in their hands when the marshal went out of office, you should pay them for no longer time than you do the marshal.
USE OF ANNUAL APPROPRIATIONS.
Repairs made to a building will ordinarily be presumed to be for the needs and uses of the particular fiscal year in which they were ordered, although this presumption is not conclusive, but may be rebutted by the facts in each case.
Where an employee's salary was increased during a 31-day month, and such increase did not require a new appointment, he was only entitled to thirty days' pay for his services during said month.
(Decision by Comptroller Tracewell, February 15, 1905.)
Thomas J. Hobbs, disbursing clerk, Treasury Department, appealed January 14, 1905, from the action of the Auditor for the Treasury Department in settlement dated December 12, 1904, of his accounts for the month ending September 30, 1904, under the appropriation "Repairs and preservation of public buildings, 1905."
The specific items upon which said appeal is based are the disallowances by the Auditor of $1,967 in voucher No. 60, and of $1.67 in voucher No. 25, which disallowances I will consider in the order named.
The sum of $1,967, disallowed in voucher No. 60, represents a payment made to one William H. Brown for miscellaneous repairs to the post-office building at Kansas City, Kans. It appears that in answer to a request by the Department for proposals for making certain repairs to said building, said Brown, on May 25, 1904, submitted a proposal to make the needed repairs for $1,967, and to complete the work within forty-five days. His proposal was accepted by the Department by telegram dated June 17, 1904, as follows:
"Your proposal, amount $1,967, to complete the miscellaneous repairs at post-office building, Kansas City, Kans., hereby accepted. Letter follows. Confer with custodian and begin work immediately."