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postmaster, or of collector of internal revenue, or of pension agent, or of consul, is not properly a departmental officenot an office in the Department having supervision over the branch of the public service to which it belongs. True, an official relation exists here between the office and the Department, one, moreover, of subordination of the former to the latter; but this does not make the office a part of the Department."
The Navy Department is established by the law contained in section 415 of the Revised Statutes, and section 419 establishes eight bureaus in the Department among which is to be distributed the business of the Department. The bureaus are: Equipment, Navigation, Ordnance, Construction and Repair, Steam Engineering, Supplies and Accounts, Medicine and Surgery, and Yards and Docks. The Marine Corps is not one of the bureaus, and I find no law making it a bureau, office, or branch of the Navy Department, and such being the case the law of January 12, 1895, does not apply to require the printing for that corps to be done at the Government Printing Office.
This, however, would not apply where the Navy Department undertakes to supply printed matter to the different outside establishments. An example of this character is where the Department prints and supplies forms of vouchers, etc., to be used in preparing and stating accounts.
I am therefore of opinion that you are authorized to pay the bill for printing, if correct in other respects and properly approved and certified.
AUTHORITY OF THE HEAD OF A DEPARTMENT TO SUSPEND AN EMPLOYEE WITHOUT PAY.
The head of a Department is authorized to suspend an employee from duty without pay pending the investigation of charges against him. (Comptroller Tracewell to the Secretary of War, March 27, 1905.)
In your communication of March 24, 1905, you request my decision of a question which you therein present as follows:
"I have the honor to invite attention to the following statement and recommendation of the Quartermaster-General in
regard to the claim of an employee in his bureau for salary covering a period during which he was suspended without pay by the Quartermaster-General pending final decision on charges made against him.
Mr. James L. Dugot, clerk, $900 per annum, temporary roll, this Office, having been absent from duty without authority from January 23 to January 31, 1905, and it having been reported that his absence resulted from intoxication, charges were preferred against him and he was suspended from duty without pay from February 6 to 24, inclusive, a period of nineteen days.
"The Secretary of War, upon reviewing his case, decided that the evidence upon which the charges were based was insufficient to sustain them, and Mr. Dugot was permitted to resume work on February 25.
"Mr. Dugot rendered no service to the Government during the nineteen days he was under suspension, and in the opinion of this Office he is not entitled to pay for that time, and it is recommended that it be not allowed him.'
"This matter was referred to the Judge-Advocate-General, who rendered the following opinion:
"The opinion of this Office is desired as to whether James L. Dugot, clerk at $900 per annum, temporary roll, Quartermaster-General's Office, is entitled to pay for a period of nineteen days during which he was under suspension pending investigation of certain charges against him. It appears that he was absent from duty without authority from January 23 to January 31, 1905; that it having been reported that this absence was due to intoxication, charges were preferred against him based thereon, and he was suspended by the Quartermaster-General from duty, without pay, from Febru ary 6 to 24, inclusive, a period of nineteen days, and that upon investigation it was found that the evidence was insufficient to sustain the charges and he was permitted to resume work on February 25, 1905.
"In considering this case it is to be borne in mind that Mr. Dugot is in the civil service of the Government; that under civil-service rules he could not be dismissed arbitrarily, but only for just cause; and, if the cause alleged was misconduct, he was entitled to be heard before dismissal; that his suspension from duty was not voluntary, and that upon investigation it was found that the evidence was insufficient to sustain the charges.
"In the case of Lellman v. U. S. (37 Ct. Cl., 128) where a clerk in the office of a surveyor-general was suspended by him without charges and the suspension was revoked by the Commissioner of the General Land Office, it was held that the revocation invalidated the suspension and the clerk was entitled to the salary of his office during the period of his
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suspension. In delivering the opinion of the court, it was said:
"""It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power having jurisdiction of him annuls such suspension, that the party is entitled to whatever emoluments there might be due him during the time of such suspension.
"In that case, however, the suspension was clearly unauthorized and the action of the surveyor-general in making it was revoked; while in the one under consideration the clerk was suspended pending investigation of charges against him. There is nothing in this present case to show that there was not probable cause for the suspension, or that the officer making it was actuated by other than proper motives in the matWhile it was decided, upon investigation of the charges, that the evidence was insufficient to sustain them, and Mr. Dugot was permitted to resume work, it is not understood that it was intended to decide that he was free from fault in the matter or that there was no probable cause for his suspension. It is not believed that the procedure is in the nature of a trial and acquittal, so that, if acquitted, it is to be considered that he was entirely blameless and that the suspension was unjust.
"Moreover, it was expressly provided in the order of suspension that it should be without pay; and, having in view the provisions of law regarding hours of labor and leaves of absence of clerks in the Executive Departments, it is not believed that it would be legal to suspend a clerk from duty with pay.
"For these reasons, it is doubtful whether the claimant is entitled to his pay; and as a fiscal question is involved and the matter is one of importance to all Departments of the Government, it is recommended that the case be submitted to the Comptroller for a decision as to whether this clerk is entitled to pay during the period of his suspension."
"The Department requests your decision (1) whether Mr. Dugot is entitled to pay for the nineteen days in question: and (2) whether there would have to be a different ruling if the employee held a position specifically appropriated for by Congress; in other words an 'office' as distinguished from an employment, as in the case of Mr. Dugot, he being paid from the lump sum of $360,000 for the temporary force' of the Department."
In United States v. Murray (100 U. S., 536) it was held that a clerk in the Treasury Department, whose compensation was fixed by law, who had been granted a leave of absence, without pay, for five months from February 1, 1874, and who at
the expiration of that period was dismissed, was not entitled to compensation for that period. In the opinion in that case the court said:
"While under the regulations of the Department an employee is not entitled to leave of absence with pay for more than thirty days in any one year, there is nothing to prevent the Secretary from putting him in furlough without pay at any time, if the exigencies of the service require it. He may be dismissed absolutely, and it is difficult to see why, if this can be done, he may not be furloughed without pay, which is the effect of a partial dismissal. If he desires to be free from all obligations to serve in the future, he may resign; but if he permits his name to continue on the rolls, it must be on such terms as are imposed by the Department. In this case an extraordinary demand for clerical service caused an early partial exhaustion of the appropriation for the year, and it became necessary to dispense with a part of the force, so as to reduce the expenses of the office. Absolute dismissals were not made, but as a favor to the clerks their names were kept on the rolls without pay. Murray remonstrated against what was done, but seems to have preferred the furlough to an absolute discharge. Under these circumstances, having rendered no service, he can not claim compensation."
It would appear that the rule to be deduced from the decision of the Supreme Court supra, and the other laws relative to the payment of the salaries of clerks in the Executive Departments, is that the heads of the Executive Departments are authorized, if the exigencies of the public service demand, to place such clerks in a nonpay status, to retain their names upon the rolls, but without pay, and this may be done pending an investigation of charges against them, and this regardless of the fact that their salaries are specifically appropriated for or paid from lump sums. If such authority did not exist but two alternatives would be left them when grave charges are preferred against a clerk-discharge the clerk or suffer him to draw salary for a greater or less period of time, when common prudence would forbid his active participation in the work for which he is employed and the charge under investigation being possibly his wrongful or dishonest discharge of these very duties.
It is not difficult to determine which of these alternatives would be chosen. For the protection of the Government, and equally to protect a clerk who may on investigation be
cleared from such charges, it would seem to be both the law and the right thing to do to suspend the clerk resting under charges without pay during the investigation of such charges. Under the facts stated I am constrained to answer both your questions in the negative.
CONTRACTS FOR THE PURCHASE OF FUEL, ETC., BY THE NAVY DEPARTMENT.
Section 3679, Revised Statutes, as amended by section 4 of the act approved March 3, 1905, neither amends nor repeals section 3732, Revised Statutes; therefore the power conferred by said latter section upon the Navy Department to make contracts for or purchases of clothing, subsistence, forage, fuel, or transportation not in excess of the necessities of the current year is not affected by said amendment.
(Assistant Comptroller Mitchell to the Secretary of the Navy, March 28, 1905.)
By your reference I am in receipt of a communication from H. N. Manney, Chief of Bureau of Equipment, Navy Department, dated the 16th instant, wherein he requests to be advised as to whether section 3679 of the Revised Statutes, as amended by section 4 of act approved March 3, 1905 (Public No. 217), annuls the provision in section 3732 of the Revised Statutes, relative to the purchase and transportation by the Navy Department of fuel sufficient for the necessities of a current year where the amounts annually appropriated therefor are inadequate.
In said communication he states that:
"Fuel for naval vessels has heretofore been purchased as the exigencies of the service required. The aim of the Bureau has been to keep within the appropriations made for the purpose. Experience leads the Bureau to the conclusion that it will be found practically impossible to comply with the provisions of the new law in supplying fuel to the fleets, either in avoiding possible deficiency or in apportioning the appropriation by monthly or other allotments. Fuel must be shipped as the positions and requirements of the fleets dictate, if their mobility is to be preserved. A monthly allotment will entirely prevent the Department taking advantage of a favorable coal market or of cheap transportation rates."