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of authority granted by the Secretary. It is believed that the agreement with the employees, made in view of this authority, that medical attendance would be furnished, constitutes a binding obligation upon the Government to provide such attendance."
The Secretary of the Interior is given broad authority by the terms of the reclamation act, such as to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this act into full force and effect.
Under this authority he would be authorized in contracting with persons for the reclamation service to make it a part of their compensation to furnish them with medicines and medical treatment on account of injuries or disease contracted in this service.
Also, independently of the particular contract with individuals, he is authorized to make such rule, regulation, or order as would secure to them medicine and medical attendance in case of disease or injury so contracted.
You state that on January 8, 1904, the Secretary of the Interior approved a recommendation that medical and surgical attendance be provided for the benefit of the men employed in connection with the Salt River irrigation project in Arizona. That on February 25, 1904, authority was granted by the Secretary to purchase medical and hospital supplies for this purpose and to pay for same from the reclamation fund. That in pursuance of said authority a physician was employed and stationed at Roosevelt. That on October 18, 1904, and May 8, 1905, two employees were seriously injured at some distance from Roosevelt and that medical and surgical attention in each case was immediately necessary, and because of the flooded condition of the country it was impossible to secure the physician at Roosevelt or to use the medical stores at that place. That because of the above state of facts Dr. Charles E. Hawley was called from the town of Mesa and ministered to the wants of the two injured employees and has rendered bills for $25 and $60, respectively, which you say are moderate and reasonable under the circumstances.
It seems to me, considering the action of the Secretary in ordering that medicines and medical attention be furnished the employees in connection with the Roosevelt irrigation project, and that these men when injured were engaged as employees on this project, that the only questions remaining for consideration are, were the employment of a physician and the use of other medicines than those stored at Roosevelt a legal and proper enforcement of the orders of the Secretary.
The main purpose of the order was to secure prompt and efficient medical and surgical attention to the sick or injured employees in a country where the employees could not otherwise have had the benefit thereof. To give the order of the Secretary the narrow construction which would be involved in holding under the circumstances disclosed in this case that such medical and surgical attendance must be furnished from the town of Roosevelt would defeat the beneficial purposes of a humane and necessary order.
If these vouchers are properly approved and are otherwise correct you are authorized to pay them.
EMPLOYMENT OF EXPERT MECHANICS IN THE
The appropriation made in the act of February 3, 1905, for experimental
work in developing tabulating machinery in the Census Office, is applicable to the employment of expert mechanics for conducting
said work if it can not be accomplished by the regular office force. The Civil Service Commission is primarily the judge as to whether a par
ticular employment is within the classified service. (Comptroller Tracewell to the Secretary of Commerce and
Labor, June 29, 1905.)
I am in receipt of your communication, bearing date of the 28th instant, which reads:
“The legislative, executive, and judicial appropriation act of February 3, 1905 (33 Stat., 683), under the head Department of Commerce and Labor, Census Office, contains a clause as follows:
“For tabulating census returns, including cost of cards and rental of necessary apparatus, and the cost of experimental work in developing tabulating machinery, forty thousand dollars.
“ I am advised by the Director of the Census that in order to conduct the experimental work authorized it will be absolutely necessary to employ expert mechanics who have had extensive experience and special training in the practical development and operation of this class of mechanism. There
is no person in the employ of the Department possessing these necessary qualifications. The Director further states that he is informed that there are only two or three such men whose services are available. These men he proposes to employ.
“The Department concurs in the Director's statement as to the necessity of securing the services of the experts in question and certifies that unless such services can be secured it will be impossible to conduct the experimental work in developing tabulating machinery contemplated by the appropriation. It is desired to employ the experts in question, commencing July 1, 1905, providing the appropriation in question is available for that purpose.
“I therefore request your decision as to whether or not, without reference to the civil-service act and rules, the propriation in question is available to pay these experts if employed
"In view of the fact that all arrangements have been made to commence the experimental work on July 1, 1905, your decision at the earliest possible moment is requested."
As I understand your communication you submit two questions for my decision.
1. Is the Director of the Census authorized to employ experts during the next fiscal year to perform experimental work in developing tabulating machinery and pay them the agreed price for such service from the appropriation set out in the body of your letter?
2. Can these employments be made regardless of the civilservice rules?
Answering these questions in their inverse order:
The President, by a recent Executive order, has placed all employments not specifically excepted therefrom under the classified service. The Civil Service Commission, at least primarily, is the proper judge of whether the employments in question, if otherwise legal, are embraced in and are part of the classified service.
As to your first question. I assume that your doubts arise as to the legality of such employments because of the provisions of section 4 of the act of 1882, found in 22 Stat., 255, which reads:
“SEC. 4. That no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall after the first day of October next be employed in any of the Executive Departments, or subordinate bureaus or offices thereof at the seat of government, except only at such rates and in such numbers, respectively, as may be specifically appropriated for by Congress for such clerical and other personal services for each tiscal year; and no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall hereafter be employed at the seat of government in any Executive Department or subordinate bureau or office thereof, or be paid from any appropriation made for contingent expenses, or for any specific or general purpose, unless such employment is authorized and payment therefor specifically provided in the law granting the appropriation, and then only for services actually rendered in connection with and for the purposes of the appropriation from which payment is made, and at the rate of compensation usual and proper for such services, *
This act is not directly repealed by the language of the appropriation set out. Repeals by implication are not favored. It is also clear that one Congress can not by the use of language, however strong, limit the authority of a succeeding Congress.
If this appropriation act and the act of 1882, supra, are not in irreconcilable conflict, both acts should stand and effect be given to each.
The employment of these experts engaged in experimental work in developing tabulating machinery would be clearly the employment of persons in a bureau of an Executive Department located at the seat of government, and their employment is not specifically provided for by the terms of the appropriation in question.
The Director of the Census is authorized -I might put it stronger, directed—to conduct this experimental work. It seems to me that the nature of this experimental work must determine the question whether the later appropriation act and the act of 1882, supra, are in utter and irreconcilable antagonism.
If it is such work as can be accomplished by the force provided by law for the Census Office, there is no conflict or antagonism between the two provisions of law, and the appropriation act of February 3, 1905, supra, when read in connection with the act of 1882, is clearly not available to employ and pay other and additional employees in the Census Office than those otherwise specifically provided for by law. On the contrary, if this experimental work can not be accom
plished by the regular and provided force of the Census Office, there is an utter and irreconcilable conflict between the two acts. The one commands a thing to be done, the other forbids the use of the only means of its accomplishment. In such a case the older law must give way to the newer one.
You say there is no person in the employ of the Department possessing the qualifications necessary to perform this experimental work, and that unless such services can be procured it will be impossible to conduct the work of experimentation provided for in the latter appropriation.
Taking these statements as true, I am of opinion that the latter act necessarily suspends the operation of the act of 1882, supra, and by implication repeals it as regards the employment of such experts as will be necessary to execute the latter law. See 8 Comp. Dec., 258.
EXPENSES OF LAST SICKNESS OF DECEASED
When a chronic disease reaches that stage in its progress where the patient
requires the constant care and attention of another person, it should from such time on be considered his “last sickness,” within the meaning of the provision in the act of March 2, 1895, for the payment of
the expenses of the last sickness of deceased pensioners. (Decision by Assistant Comptroller Mitchell, June 30, 1905.)
Mary B. Blackburn appealed, June 19, 1905, from the action of the Auditor for the Interior Department in settlement dated February 15, 1905.
She claimed reimbursement for expenses incurred during the last sickness and burial of her mother, Nancy Leatherman, a pensioner, who died December 1, 1902, leaving no minor child or children and having no assets.
Subsequent to her death she was granted a pension at the rate of $8 per month from June 13, 1892, to the date of her death, aggregating $1,005.07.
The items of her claim are as follows:
Medical attention by Doctor Sherrill, from 1884 to 1899....
500.00 1, 460.00
2, 175. 75