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There being no specific statutory authority given you to appoint the Deputy Commissioner of Fisheries, it is clear that you do not possess such authority unless the position comes within the scope of section 169 of the Revised Statutes, which provides that "each head of a Department is authorized to employ in his Department such number of clerks of the several classes recognized by law, and such messengers,
assistant messengers, copyists, watchmen, laborers, and other employés, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year.”
It was held by Attorney General Pierrepont, in 15 Op. 3, that a Deputy Comptroller of the Treasury, a deputy commissioner of customs, a Deputy Auditor of the Treasury, and a Deputy Register of the Treasury did not come within the scope of section 169 of the Revised Statutes so as thereby to vest their appointment in the head of the Treasury Department. There being no express statutory provision for the appointment of such officers, it was held that they could only be appointed by the President by and with the advice and consent of the Senate.
Likewise, in 26 Op. 627, Attorney General Bonaparte held that a Second Deputy Comptroller of the Treasury was not a clerk within the meaning of section 169 of the Revised Statutes, and must be appointed by the President by and with the advice and consent of the Senate, there being no express statutory provision for the appointment of such officer.
The office of Deputy Commissioner of Fisheries is of like grade to those offices just mentioned. While his duties are not prescribed by statute, the title of the office necessarily implies a power to perform all the duties which might be performed by the Commissioner of Fisheries, the nature of whose office is defined by sections 4395 and 4396 of the Revised Statutes, and whose appointment is vested in the President by and with the advice and consent of the Senate.
This case is parallel to that of the Second Deputy Comptroller of the Treasury, above cited, the office of such
deputy having been created merely by an appropriation, as in the present case, without prescribing his duties. As said in that opinion (26 Op. 630):
“Generally speaking, a deputy has power to do every act which his principal may do, and is not restrained to some particulars of his office. (Throop on Public Officers, sec. 583; Mechem on Public Officers, sec. 570; Erwin v. United States, 37 Fed. Rep. 470.) Doubtless it was on account of this general rule and with the intention that there should be no restriction that Congress did not deem it necessary to prescribe specifically the duties of the additional Deputy Comptroller.”
Following with approval the ruling in the cases cited, I beg to advise you that the present incumbent of the office of Deputy Commissioner of Fisheries is not legally appointed, his present status being a de facto officer. The appointment must be made by the President by and with the advice and consent of the Senate. A new appointment of the Deputy Commissioner of Fisheries, effective July 1, 1911, is not made necessary, however, merely by reason of the increase of the salary of the office. (1 Comp. Dec. 267; ib. 313; 3 ib. 336.)
2. The position of Chief of the Division of Alaska Fisheries, in the Bureau of Fisheries, at a salary of $3,500, is provided for for the first time by the sundry civil appropriation act of March 4, 1911, and the act is silent as to how or by whom the position shall be filled. Under the circumstances, you request my opinion as to whether the appointment must be made by the President by and with the advice and consent of the Senate, or whether it may be made by the head of the department.
I am not advised that the duties of this officer are defined by statute, and infer that the general character of his duties is not unlike that of chiefs of division generally in the several executive departments. It seems to be the practice to regard such chiefs of division as clerks, within the meaning of section 169 of the Revised Statutes, to be appointed by the heads of departments in the absence of express statutory provisions to the contrary.
In 21 Op. 364, Attorney General Harmon, in holding that the power of appointment of the chief clerk, chiefs of bureaus, and translator in the State Department was vested in the Secretary of State, said: “The chiefs of division in various departments have, I believe, always been regarded as clerks, and this construction has received the approval of the Attorney General.” (15 Op. 3, 6; 20 Op. 728.)
You are accordingly advised that the Chief of the Division of Alaska Fisheries should be appointed by you.
3. The Division of Alaska Fisheries was created by the sundry civil appropriation act of March 4, 1911, with a chief of division, above referred to, and clerical assistance, and there were placed under this division the officers in the Alaska fur-seal fisheries service and the Alaska salmon fisheries service.
The act provides for the fur-seal fisheries, one agent, $3,650; assistant agent, $2,920; two assistant agents, at $2,190 each; and for the Alaska salmon fisheries, one agent, $2,500; inspector, $1,800; assistant agent, $2,000. These positions appear to be in no essential particular different from those provided for the same service in the sundry civil appropriation act for the fiscal year 1911 (36 Stat. 703). You state that “no change has been made in the salary and no appreciable change in the designation. The duties will be identical and there is no intention of changing the incumbents.”
There were created the following new positions in the Division of Alaska Fisheries, for the Alaska salmon fisheries service: One assistant agent, $1,800; warden, $1,200; four deputy wardens, at $600 each.
In regard to the foregoing, you inquire:
“Under the circumstances, is there any necessity for the reappointment, effective July 1, 1911, of the four seal agents, the two salmon agents, and the one salmon inspector now holding the positions referred to? In the case of certain new positions created by the later act, namely, one assistant salmon agent, one salmon warden, and four
deputy wardens, may appointments thereto be made by the head of the department ?”
Answering your first question, I beg to say that I can see no legal necessity for the reappointment of the present incumbents of the offices referred to. There appears to be no evidence that it was the intention of Congress to abolish the existing positions and create new ones. The mere creation of a new administrative division in which such positions are placed does not establish new offices. The existing offices are, in my judgment, continued.
In regard to the new positions mentioned in the second question, I think appointments thereto must be made by the President, by and with the advice and consent of the Senate. I am aware of no express statutory authority given you to make such appointments. These are officers whose duties are manifestly not clerical, nor can they, in my judgment, be considered otherwise within the scope of section 169 of the Revised Statutes.
Furthermore, it is to be noted that the existing agents in the Alaska salmon fisheries service are required to be appointed by the President, by and with the advice and consent of the Senate. The sundry civil appropriation act approved April 28, 1904 (33 Stat. 478), provided as follows:
“For the protection of the salmon fisheries of Alaska, including salaries of one agent, at two thousand five hundred dollars, and one assistant agent, at two thousand dollars, to be appointed by the President, by and with the advice and consent of the Senate, and to be in lieu of any and all agents or inspectors now authorized by law for this purpose, seven thousand dollars.”
4. By the act of March 4, 1911, there are also placed in the Division of Alaska Fisheries, among other positions, a naturalist, fur-seal fisheries, at $3,000, and two physicians, Pribilof Islands, at $1,200 each.
You state that a naturalist was originally appointed by the head of the Department of Commerce and Labor, at $3,000, under authority of the act of April 21, 1910 (36 Stat. 326). I am also advised informally by the Solicitor of your department that the two physicians referred to
are for the Alaska fur-seal fisheries service; that they were likewise appointed, and are now in the service.
The act of April 21, 1910, is entitled “An act to protect the seal fisheries of Alaska, and for other purposes,” and by its first section the Secretary of Commerce and Labor is authorized to appoint officers, agents, and employees to carry into effect the provisions of said act in relation to killing fur seals and the taking of seal skins on the Pribilof Islands. Section 9 provides “that the Secretary of Commerce and Labor shall have authority to appoint such additional officers, agents, and employees as may be necessary to carry out the provisions of this act and the laws of the United States relating to the seal fisheries of Alaska, to prescribe their duties and to fix their compensation;
*." You are thus given complete authority over all necessary appointments to the Alaska fur-seal fisheries service; and it appears that you have exercised that authority in the case of the naturalist and the two physicians. In merely making specific appropriations for these positions there was obviously no intention on the part of Congress to create new positions.
My answer to your inquiry concerning these positions is, therefore, that you are authorized to make appointments thereto, and that if the present incumbents are to be retained, there is no necessity for their reappointment effective July 1, 1911.
5. By the sundry civil appropriation act of March 4, 1911, the following new positions are created, in the Bureau of Coast and Geodetic Survey, at the annual compensation stated: One engraver, at $2,400; two engravers, at $2,200; one electrotyper or photographer, etc., $2,400; in the Bureau of Fisheries; one local agent, Seattle, Wash., $600.
By the legislative, executive and judicial appropriation act of March 4, 1911 (36 Stat. 1231), there are created the following new positions in the Bureau of Standards, at the annual compensation stated: One associate physicist, $2,500; one associate physicist, $2,200; one associate physicist, $2,000; one assistant physicist, $1,800; one assistant