Kansas v. Colorado, 206 U. S. 89; Light v. United States, 220 U. S. 536; 20 Op. 284, 420.)

I am, therefore, of opinion, as above stated, that the transfer requested can not now be made.

I return the letter of Governor Clark, dated October 2, 1911, with the inclosure.

Very respectfully,

GEORGE W. WICKERSHAM.

The PRESIDENT.

DESIGNATION OF SPECIAL DISBURSING AGENT BY CHIEF CLERK OF THE DEPARTMENT OF THE INTERIOR. Where, during the temporary absence of the Secretary and the Assistant Secretaries, the chief clerk of the Department of the Interior, by authority of the Secretary, signed a communication as "chief clerk and chief executive officer," designating a special disbursing agent, the designation thus made is valid by virtue of authority granted by the act of March 4, 1911 (36 Stat. 1213).

The bond required in this case should show on its face that the designation was made under the act of March 4, 1911, by the chief clerk and executive officer by authority of the Secretary of the Interior in the temporary absence of the Secretary and his assistants.

DEPARTMENT OF JUSTICE,

November 15, 1911.

SIR: I have the honor to respond to your request of October 4, 1911, for my opinion on the following case:

On August 28, 1911, during the temporary absence of yourself and the Assistant Secretaries of your department, the chief clerk signed a communication designating Mr. Daniel B. Miller, a United States surveyor of the General Land Office, as a special disbursing agent, and requiring him to file an official bond. This communication was signed by the chief clerk as "Chief Clerk and Chief Executive Officer."

The question is whether the designation so made is valid. I am of opinion that it is.

Ordinarily such appointments must be made by the head of the department, and so it is directed by section 3614 of the Revised Statutes, which reads as follows:

"Whenever it becomes necessary for the head of any department or office to employ special agents, other than

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officers of the Army or Navy, who may be charged with the disbursement of public moneys, such agents shall, before entering upon duty, give bond in such form and with such security as the head of the Department or office employing them may approve."

In this case the communication making the appointment was not signed by the head of the department, but by the chief clerk, at a time when you and your Assistant Secretaries were temporarily absent, the chief clerk acting pursuant to authority delegated to him by an order of the Acting Secretary. There is no question that this authority was covered, and intended to be covered, by the Acting Secretary's order, but the question is whether it could legally be given.

It appears to be clear that the power of appointment, especially where fixed by statute in the head of the department, can not be delegated to subordinates without authority of Congress (21 Op. 355), but in this case I think the authority was granted by the appropriation act of March 4, 1911, c. 237 (36 Stat. 1213), in the clause which reads as follows:

(6 * * * Chief clerk, including five hundred dollars as superintendent of buildings, who shall be chief executive officer of the department and who may be designated by the Secretary of the Interior to sign official papers and documents during the temporary absence of the Secretary and the Assistant Secretaries of the department, four thousand dollars

* *

This language is general, and it does not in terms expressly exclude from its operation any official paper or document. So far as its direct terms go, it might be construed to authorize the delegation of every function of the Secretary of the Interior which would be exemplified by an "official paper" or 66 document."

Under a somewhat similar statute Comptroller Tracewell indicated (9 Comp. Dec. 446) a possible distinction between "major duties" of the head of a department, being those duties which ordinarily receive and require his own personal discretion, and his minor duties, which ordinarily do not require such discretion. In the case before him certain

vouchers had been approved by the chief clerk of the War Department, claiming authority under an act which provided that the Secretary of War, when temporarily absent from the War Department, "may authorize the chief clerk of the department to sign requisitions upon the Treasury Department and other papers requiring the signature of said Secretary." The comptroller held that even if delegation of the so-called major duties was not authorized by this act, the duty of approving the vouchers did not fall within that class of duties and could be delegated to the chief clerk, notwithstanding other acts of Congress which required the approval to be by the Secretary of War.

Passing the question whether so-called "major duties" could be delegated by the Secretary to the chief clerk under the statute before us, I am of opinion that this appointment is not one of that class of acts. A "disbursing agent " is, as his name implies, a mere "agent" of the department, of a subordinate, minor character. In general practice, as I am informed, this grade of appointments are bureau matters not actually receiving the personal consideration of the head of the department. They are in actual fact, and in the customary administration of the departments, a mere part of the daily routine going through to signature under the initials of the bureau heads. I understand that there are on an average 40 such appointments in each day's mail of your department, and that they are not considered in the departments to be of any greater sanctity than the bulk of the day's mail.

If even these minor routine actions are to be excepted from the general authorization of the statute, that authorization will practically be limited to papers and documents concerning mere matters of information, answers to queries, and those other types of correspondence which involve no real action whatever. I do not think such a limitation of the language would be consistent with the plain spirit and purpose of the act, which is to keep the wheels of the department actually moving all the time, even during the absence of yourself and the Assistant Secretaries when such absences happen to coincide. To limit the application of the act to what may be called the inoperative mail, and to

exclude from it the operative mail, would necessarily defeat that very object and make the act substantially valueless for the obvious purpose for which it was enacted.

Other opinions tending to confirm this view are the opinion of Mr. Attorney General Harmon (21 Op. 355) and that of Mr. Attorney General Cushing (7 Op. 594), both of them holding that a general power of delegation granted by Congress to an officer carried with it authority to delegate even certain functions which other acts of Congress required to be exercised by the officer himself.

I am of opinion, therefore, as above stated, that the designation of the disbursing agent in question is lawful.

I have conferred with the Solicitor of the Treasury, and he authorizes me to say that the views which he expressed in his opinions transmitted with your question were founded upon the informality on the face of the bond submitted to him for approval. I think his objection in that respect is well founded and that the form of the bond should be revised, so as to show on its face that the designation was made under the act of March 4, 1911, by the chief clerk and executive officer by authority of the Secretary of the Interior in the temporary absence of the Secretary and his assistants.

Herewith I return the inclosures which accompanied your letter.

Very respectfully,

WINFRED T. DENISON,

Acting Attorney General.

The SECRETARY OF THE INTERIOR.

REMOVAL OF STEAMER "JOHN B. KETCHAM NO. 2" FROM WEST NEEBISH CHANNEL.

The claim of the Reid Wrecking Co. against the Government for services in removing the steamer John B. Ketcham No. 2 from the West Neebish Channel should be paid and that company should not be required, as a condition precedent to the payment of its claim, to bring the vessel within the jurisdiction of the United States since said vessel has been sold under appropriate judicial proceedings.

The statute under which this claim arises makes no provision for the payment of interest, therefore none can be paid.

DEPARTMENT OF JUSTICE,

November 22, 1911.

SIR: I have the honor to acknowledge receipt of your letter of the 11th instant, resubmitting the correspondence in the claim of the Reid Wrecking Co. (Ltd.), for services in removing the steamer John B. Ketcham No. 2 from the West Neebish Channel, concerning which an opinion was rendered at your request on February 28, 1911 (28 Op. 626).

You now call attention to the further statement of the claim of said company embodied in the brief of their attorneys, and to the report of the Judge Advocate General thereon, copies of which accompany your letter, and request my opinion "as to whether upon the facts, as they now appear, the payment of this claim is warranted."

The brief of the company's attorney, and the report of the Judge Advocate General, show that the company, after removing the Ketcham to its dock in Canada, filed a libel in admiralty against the vessel in the Canadian courts to enforce the liens held by it against the vessel; that notice of the sale of the vessel was mailed to and received by your engineer officer at Detroit, Mich.; that the vessel was bid in, not by the Reid Wrecking Co., but by a company controlled by the stockholders of the Reid Wrecking Co.; that the amount realized from the sale was insufficient to cover the claims of that company for completing the raising of the vessel and the expenses of the sale, etc., so that nothing remained to satisfy any other claims against the vessel.

Since the receipt of your letter counsel for the Reid Wrecking Co. has submitted copies of additional papers showing that the vessel was actually sold for $12,650, and that out of this sum the company was allowed $10,158, together with its costs. The amount remaining and its disposition, however, is not shown.

It is proper to state at this point that these facts were not before me when I rendered my opinion of February 28, 1911, above referred to. That opinion, of course, proceeded upon the hypothesis that the company was holding the ves