DEPUTY CLERKS OF UNITED STATES DISTRICT COURTSPREMIUM ON OFFICIAL BONDS.

Deputy clerks of the district courts of the United States are "officers of the United States" within the meaning of the provision of the urgent deficiency appropriation act of August 5, 1909 (36 Stat. 118, 125), which limits the rate of premium on official bonds of officers and employees of the United States.

DEPARTMENT OF JUSTICE,

December 12, 1912.

SIR: I have the honor to acknowledge the receipt of your letter of the 26th ultimo requesting my opinion on the question whether deputy clerks of district courts of the United States come within the provisions of the urgent deficiency appropriation act of August 5, 1909 (36 Stat. 118, 125).

The portion of the said act to which you refer is as follows:

"Until otherwise provided by law no bond shall be accepted from any surety or bonding company for any officer or employee of the United States which shall cost more than thirty-five per centum in excess of the rate of premium charged for a like bond during the calendar year nineteen hundred and eight: Provided, That hereafter the United States shall not pay any part of the premium or other cost of furnishing a bond required by law or otherwise of any officer or employee of the United States."

The question submitted by you turns, therefore, on whether a deputy clerk of a district court of the United States is an "officer or employee of the United States."

I entertain no doubt that he is an officer of the United States. The Constitution (Art. II, sec. 2, par. 2), after conferring general power on the President, by and with the advice and consent of the Senate, to appoint officers of the United States, provides: "But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

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In United States v. Maurice (2 Brock. 96, 102, 103) Chief Justice Marshall said:

66* * * An office is defined to be 'a public charge or employment,' and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is ' an employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the Government, and not by contract, which an individual is appointed by Government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer."

In United States v. Hartwell (6 Wall. 385, 393) the Supreme Court, holding that a clerk in the assistant treasurer's office at Boston, appointed by that officer, with the approbation of the Secretary of the Treasury, was a "public officer," said:

"An office is a public station, or employment, conferred by the appointment of Government. The term embraces the ideas of tenure, duration, emolument, and duties.

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"A Government office is different from a Government' contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.

"The defendant was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power."

This decision in so far as it relates to the method of appointment proper and necessary to constitute an officer of the United States is approved in United States v. Moore,

95 U. S. 760, 762; United States v. Germaine, 99 U. S. 508, 511; United States v. Perkins, 116 U. S. 483, 484; United States v. Mouat, 124 U. S. 303, 307, 308; United States v. Smith, Ibid., 525, 532.

Deputy clerks of the district courts of the United States were, by section 558, Revised Statutes, authorized to be appointed by the court on the application of the clerk, but this provision has been repealed by section 297 of the Judicial Code, and section 4 of the said code now provides:

"SEC. 4. Except as otherwise specially provided by law, the clerk of the district court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime."

Since such deputy clerks are, by law, appointed with the approval of the court, there can be no doubt that, in so far as the method of appointment goes, they are appointed by a court of law, within the meaning of the Constitution, and are, so far as that point is concerned, officers of the United States (United States v. Hartwell, supra).

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In addition to the method of appointment," the term (office) "embraces the ideas of tenure, duration, emolument, and duties" (United States v. Hartwell, ubi supra).

By tenure is not meant a holding for a fixed term. Many admitted officers do not so hold. The distinction is between those persons whose services are occasional and temporary,

fixed by some contract of employment, and those whose services are general and indefinite in a line of duty prescribed by law. This is pointed out in United States v. Maurice, ubi supra. In United States v. Germaine, ubi supra, the Supreme Court, alluding to United States v. Hartwell, said (p. 511):

66* ** In that case the court said, the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary."

In Auffmordt v. Hedden (137 U. S. 310, 327) the court said of the person there in question:

66* * His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an "officer " within the meaning of the clause of the Constitution referred to."

A deputy clerk has an indefinite tenure given him by law (Judicial Code, sec. 4, supra), and in that aspect also fulfills the legal requirements.

The same considerations show that his office has "duration" within the meaning intended by the Supreme Court. It is not limited to any exceptional or occasional emergencies, nor fixed by contract.

His "emolument " is regulated by section 561, Revised Statutes, which provides:

"SEC. 561. The compensation of deputies of the clerks of the district courts shall be paid by the clerks, respectively, and allowed in the same manner that other expenses of the clerks' offices are paid and allowed."

Since he is thus paid by the clerk and not by the United States, there is no privity of contract between himself and the Government as to the matter of compensation, and, hence, he is not an "employee" of the United States (United States v. Meigs, 95 U. S. 748; Douglas v. Wallace, 161 U. S. 346, 348; Bollin v. Blythe, 46 Fed. 181, 182; United States v. McDonald, 72 Fed. 898; Matthews v. United States, 35 Ct. Cls. 595, 600; Matthews and Gunn v. United States, 32 Ct. Cls. 123, 133). Nevertheless, the money to pay the deputy comes from the fees charged by the clerk

under section 828, Revised Statutes, for performing services required by law in the administration of justice, which fees are accounted for to public officials (Revised Statutes, secs. 833, 839), and the surplus of which, after payment of his deputies and other office expenses, must be accounted for to the Treasury of the United States (Revised Statutes, sec. 844).

A deputy marshal has been held to be an officer of the United States though his compensation is derived in the same manner as that of the deputy clerk (United States v. Tinklepaugh, 3 Blatch. 425, 430; United States v. Martin, 17 Fed. 150, 153; Bollin v. Blythe, supra), and this view of the status of a deputy marshal evidently has the sanction of at least three justices of the Supreme Court (United States v. Matthews, 173 U. S. 381, 387, 389).

Therefore, though there be no privity of contract between the deputy clerk and the Government as to his emolument, yet that emolument is, in fact, derived from public funds, and this seems clearly sufficient to meet the requirements as to a public office in this respect.

The "duties" of a deputy clerk are such portion of the clerk's own duties as the latter may depute to him (A. & E. Encyc., 2d ed., vol. 9, p. 370). These acts he may do in his own name as deputy. In The Confiscation Cases, 20 Wall. 92, 111, the warrant, citation, and monition were signed by the deputy clerk. The court held:

66 * This was sufficient. An act of Congress authorized the employment of the deputy, and in general, a deputy of a ministerial officer can do every act which his principal might do."

A deputy clerk takes the same oath as the clerk, namely, "That I will truly and faithfully enter and record all the orders, decrees, judgments, and proceedings of the said court" (Revised Statutes, sec. 794). Such duties amply come up to the measure of the duties of a public officer. Moreover, the bond of the deputy for the performance of his said duties runs, like that of the clerk, to the United States (Revised Statutes, sec. 796).

Moreover, in at least two enactments of Congress the deputy clerk is spoken of as holding an office. This alone