Imágenes de páginas
PDF
EPUB

Revised Statutes, or any part thereof? If these sections have not been repealed or modified, is there now any legal limitation upon the power of the collector either to remove or to appoint his deputies?

"In view of the fact that section 3148 makes the collector responsible upon his official bond, both to the United States and to individuals, for the acts and defaults of his deputies, to be appointed in the manner prescribed by said section, the clear intent of which is to leave their selection wholly to the collector, can the bond be held responsible for the acts and defaults of deputies appointed in a manner not prescribed or contemplated by that section, and in a manner which eliminates the collector's power of selection by restricting him in each case to the names of three persons or less, all of whom may be wholly unknown to him?

"In view of the specific provisions of section 3149 limiting the term during which a deputy collector shall have authority to act as such to the period covered by the bond of the collector from whom he holds his commission, is it not the meaning of the law that when a new collector enters upon duty the deputies of his predecessor are entirely and absolutely without authority to perform any of the functions of deputy collectors unless reappointed by the incoming collector by an instrument of writing under his hand?

"And, in view of the further fact that this section provides that in case of a vacancy in the office of collector the bond of the outgoing collector shall be held for the acts and defaults of the deputies of such outgoing collector until his successor is appointed (and qualified), can the bond of the new collector be held for the acts and defaults of said deputies of his predecessor unless they are reappointed by the new collector by an instrument of writing under his hand?

"Very respectfully,

"G. W. WILSON."

On September 28, 1897, the Acting Secretary of the Treasury submitted this matter to the Attorney-General, in accordance with the request of the Acting Commissioner of Internal Revenue.

Upon learning these facts, the Commission made informal request to be heard, and, the request being granted by the Attorney-General, the Commission, on October 14, 1897, submitted to him the following brief of its opinion in the matter:

"IN RE THE STATUS OF DEPUTY COLLECTORS OF INTERNAL REVENUE-SUBMITTED TO THE HONORABLE THE ATTORNEY-GENERAL BY THE UNITED STATES CIVIL SERVICE COMMISSION OCTOBER 14, 1897.

"This matter will be treated under the following heads:

"I. Are deputy collectors of internal revenue officers of the United States? "II. Does the term of office of a deputy collector of internal revenue cease by reason of the going out of office of the collector under whom he was appointed and the taking of office by a newly appointed collector?

"III. Are deputy collectors of internal revenue properly in the classified service and subject to the provisions of the civil-service act and rules?

"IV. General discussion.

"I. FIRST QUESTION.

"The first question, then, is as to the relation that a deputy collector and the office which he holds bear to the Government of the United States, the question really being, Is he an employee, in any sense of the term, of the collector, or is he an officer of the United States? If an employee of the collector, it will doubtless be admitted that, by reason of the source from which his authority is derived and the nature of his duties, he must stand largely in the light of an agent to his principal.

"Mr. Parsons, in his work on Contracts, says:

"Few persons are able to transact all their business, supply all their wants, and accomplish all their purposes without sometimes employing another person to represent them and act for them or in their stead. Such a person becomes their agent.' (I Par. on Cont., p. 39.)

"An agent has been defined as 'one who acts for or in the place of another, in virtue of an existing authority or power from him' (Abbott's Law Dictionary, p. 46), or 'one who undertakes to transact some business or to manage some affair for another, by the authority and on account of the latter, and to render an account of it' (Bouvier's Law Dictionary, p. 125).

"Wharton on Agency, page 1, describes an agency as 'a contract by which one person, with greater or less discretionary power, undertakes to represent another in certain business relations.' Let it be noted that the ruling condition precedent is that the agent, or, as far as that is concerned, an employee, acts by virtue of the authority, and under instructions, express or implied, of the principal or employer. Now, by reference to section 3148, Revised Statutes, it is seen that it is not the collector who authorizes the deputy collector to act, or who prescribes his duties, but that it is the statute that gives the deputy his authority, and it is the statute which prescribes his duties.

"In a case arising under section 3148, Revised Statutes, previous to its amendment on March 1, 1879, it was held that deputy collectors were employees of the collector by whom they were appointed; but note that such holding distinctly states this to be the case 'prior to the act of March 1, 1879.' (See Herndon's Case, 15 C. Cls. R., 446.) It would seem that such holding was based upon the fact that the deputy collector, under the old law, contracted with his principal for his services, and performed duties prescribed by the collector.

"Under the statute as it now stands, however, there are no terms, either express or implied, whereby it can be assumed that the deputy contracts with the collector, or that the deputy collector is in any manner an agent or employee of the collector. In Landrum v. United States (16 C. Cls. R., 74), in discussing the Herndon decision, the court says: "By the act of March 1, 1879, the law and practice of the Treasury Department in relation to the payment of the salaries of deputy collectors have been changed,' and a careful reading of the whole opinion in this case will bear out the statement that this decision inferentially holds that since the passage of the act of March 1, 1879, deputy collectors are not employees of the collector, but by reason of the said amendment have assumed an entirely different status as regards the Government.

"The query now arises, What is that status? It is not, as we have seen, that of an agent or employee of the collector. Is it that of an officer of the Government? Mr. Mechem, in his work on Public Officers and Offices, in section 3 states:

"The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve the delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public-that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, to be exercised for the public benefit.'

"This statement is fortified by a long list of cited cases. By whom are these sovereign functions bestowed upon the deputy collector? The answer is clear: By statute; by those laws which prescribe what his authority and duties are. 'A public office is an agency for the state, and the person whose duty it is to perform this agency is a public officer.' (63 N. C., 59. See also in re Hathaway, 71 N. Y., 238.) Note that he who performs duties under a person is an agent, but he who acts as an agent of government is a public officer.

"Chief Justice Marshall, in United States r. Maurice (2 Brock., 96), says in discussing the question of officers and offices under the Constitution: 'The Constitution, then, is understood to declare that all offices of the United States, except in cases where the Constitution itself may otherwise provide, shall be established by law.' Continuing the discussion as to whether or not an agent of fortifications was an officer of the United States, which said office had been established by law, he says: "An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. The man may certainly be employed under

a contract, expressed or implied, to do an act or perform a service, without becoming an officer, but if the duty be a continuing one, which is prescribed by the Government and not by contract, which an individual is appointed by Government to perform, who enters on the duties pertaining 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 the American and English Encyclopedia of Law (vol. 19, p. 383), is found perhaps the most complete definition, setting out all of the conditions necessary to an office, with citations covering each condition:

"A person in the service of the Government who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by Government and not by contract, consisting of the exercise of important public powers, trusts, or duties, as a part of the regular administration of the Government, the place and duties remaining though the incumbent dies or is changed, and who receives his compensation out of the public treasury, is a public officer, and his charge or employment a public office.'

"Further reference to section 3148, Revised Statutes, discloses that a deputy is compensated for his services in the discretion of the Secretary of the Treasury, upon recommendation by the Commissioner of Internal Revenue; that his duties are not such as may be prescribed by the collector, but are absolutely fixed by law; that the collector can not revoke the appointment of any deputy except upon giving such notice as the Commissioner of Internal Revenue may prescribe.

"It is submitted that a deputy collector fulfills every condition of the rule laid down by Chief Justice Marshall, as well as the rule quoted from the Encyclopedia of Law; that he fails to show any standing as an employee or agent of the collector, and that, consequently, he is an officer of the United States. Concluding this portion of the argument, attention is called to United States v. Germain (99 U. S.) and United States v. Hartwell (6 Wall., 385), in both of which cases it is said of a public office that the term embraces the idea of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, and not occasional or temporary. It would appear, then, that a deputy collector is, under the definition and cases cited, an officer of the United States, and his status must be subject to the law as it relates to officers of the Government.

Section 3197,

"Do the statutes recognize a deputy collector as an officer? Section 3166 says 'an officer of internal revenue may be specially authorized by the Commissioner of Internal Revenue to seize any property,' etc. Under this section deputy collectors are contantly seizing property. Section 3167 refers to 'collectors, deputy collectors, agents, clerks, or other officers.' Section 3177, in speaking of collectors, deputy collectors, and inspectors, says 'who refuses to admit such officer.' referring to seizures made by collectors or deputy collectors, says 'the officer making the seizure,' etc. Section 3198, referring to seizures made by collectors or deputy collectors, says 'the officer making the seizure,' and section 3199, referring to collectors, deputy collectors, etc., says 'the proceedings of the officer.' Section 3200, referring to any collector or deputy collector, recites them as 'such officer.' Section 3203, referring to sales of land made by the collectors or deputies, says 'said records shall be certified by the officer making the sale.'

"It would certainly appear that a deputy collector is not only an officer under the most approved definitions and under the decisions made by eminent jurists, but that the statutes themselves expressly and distinctly recognize a deputy collector as an officer of the Government.

"How has the office of a deputy collector been regarded by the Department of Justice and the Treasury Department? A single instance will suffice, and attention is called in this respect to a communication addressed to Charles P. Lincoln, dated August 23, 1897, and signed by G. W. Wilson, Acting Commissioner of Internal Revenue, which communication is a part of the file No. 1815, relating to the case of

reinstatement of the said Charles P. Lincoln to a position in the Internal-Revenue Service, which communication is as follows:

"In reply to your inquiry of the 17th instant, yon are advised that the records of this office show that you were appointed assistant assessor of internal revenue in the third district of Mississippi on the 22d of April, 1870, and that you served in that capacity until May 20, 1873, when the office of assessor was abolished. The duties then performed by assistant assessors were the same in character as those now performed by deputy collectors, who are in the classified service.'

"Attorney-General Speed, on April 25, 1865 (XI Ops. Attys. Gen., p. 209), addressed a letter to the then Secretary of the Treasury, in which he stated, after reviewing the subject:

"I have no difficulty, then, in determining that an assistant assessor is an officer in the meaning of the Constitution. The tests that I have applied in ascertaining the legal character of his employment were those adopted with like result in the case of inspectors of the custom under the acts of 1799 and 1815 by my predecessors, Mr. Wirt, Mr. Berrien, and Mr. Legare.'

"It would seem, then, that the holding of Attorneys-General Speed, Wirt, Berrien, and Legare, as applied to the communication quoted from the now Acting Commissioner of Internal Revenue, must bring us logically to the conclusion that a deputy collector is, in the opinion of the said Acting Commissioner, an officer of the Government. Furthermore, the act of Congress passed December 24, 1872, would seem to tend strongly to such a construction, for said act abolishes the offices of assessor and assistant assessor, and provides that all duties imposed by law upon such offi. cials 'be, and the same are hereby, transferred to and imposed upon collectors of internal revenue, to be performed by them and their deputies, and that all returns and reports required by law to be made to the said assessors and assistant assessors shall be made to the said collectors and their deputies,' the assistant assessors thus being supplanted by the deputy collectors.

"What effect has the use of the word 'deputy' upon the status of a deputy collector? There was a time in the early history of this country when the word deputy was applied only to offices which had to do with the judicial branch of the service. Originally the word deputy, as applied to an individual, meant one to whom the powers of another were deputed by a principal, and when the deputy might be said to have been a shadow of such principal; but the word deputy, as used to-day in connection with many and it may be consistently said in connection with nearly all the offices under the Government, means an assistant-some one authorized to act in place of another on account of that other's inability to be in several places at the same time to provide that certain official acts be done, notwithstanding the fact that one individual can not do all things connected with the duties of the office of which he is the incumbent.

"It is said (Web. Dict.) that the word deputy is used in composition with the names of various executive officers to denote an assistant, and that in such a connection it is synonymous with 'substitute,' 'representative,' 'delegate,' etc., not the personal substitute, etc., but the official substitute, vested with the powers of the collector, not by personal delegation of such powers, but possessed of the powers by direct statutory enactment.

"Mr. Mechem, in discussing the question of deputies in section 38 of his work before referred to, says:

"Whether deputies appointed by public officers are to be regarded as public officers themselves depends upon the circumstances and method of appointment. Where such appointment is provided for by law and a fortiori when it is required by law, which fixes the power and duties of such deputies, etc., the deputies are usually regarded as public officers.'

"Apropos of this statement is the holding in United States v. Martin (17 Fed. Rep., 150), wherein it was held that a deputy marshal is an officer of the United States,

and in the leading case of United States v. Tinklepaugh (3 Blatch., 425), the same holding is made, and the reasons are set out in full for such a belief. The deputy whose place is provided for and whose duties are prescribed by law is not a mere agent or servant, but is to a certain extent not only a public officer but an independent public officer. (In support of this proposition, see 30 Conn., 351; 44 Ala., 409; 13 Ohio, 523; 13 Tex., 507, and 4 Vt., 616.)

"It is to be noted (and it will bear repetition), referring again to section 3148, that so far as this section or any other statute is concerned, a collector does not fix the term of office of his deputies; he can vest them with no power; he can prescribe no duties for them; he has nothing to do with their compensation, either fixing or paying, and he can not revoke their appointment except under certain conditions prescribed by the Commissioner of Internal Revenue.

"It might be granted that where the affinity between a principal and his deputy is so close that it is impossible to draw a distinguishing line between the two, because the appointment, power, duties, and removal of the deputy are absolutely and solely dependent upon his principal to such an extent that the deputy is simply alter ego, there might be some force in the contention that the deputy was but the servant of the principal; but, as has been shown by the statutes, no such condition of things exists, and the word deputy, as applied to a collector, does not indicate in any manner any close personal relation between the collector and the deputy, and we have no right to construe the word deputy, as applied to deputy collectors, in any narrow or restricted sense when the provisions of the statute clearly indicate that it is used in an entirely different sense.

"It would appear by the foregoing that deputy collectors are officers of the Government, have been and would be so recognized under the definitions and citations quoted, and that further, and with great force, the statutes themselves recognize expressly the deputy collector as an officer of the Government.

"II. SECOND QUESTION.

"It having been shown that a deputy collector is an officer of the Government, it logically follows that his tenure of office must be determined by those principles of law which underlie and govern the tenure of officers of the Government, and attention is naturally directed to the tenure of the collector as well as of the deputy. Section 3142 shows that a collector's office is not an office which has what is known as a 'fixed term,' but said office is among that class of offices held at the pleasure of the appointing power, and, as is well known, such office is terminated, outside of death, at the will of the appointing power.

"We are brought at this point to a discussion as to when and under what particular circumstances an office held at the will of the appointing power terminates. There is a marked difference in many respects between offices that have a fixed tenure by law and those that have no fixed tenure but are terminable at the will of the appointing power. In discussing the provisions of a statute which provides for an incumbent to hold an office during the pleasure of the appointing power, Mr. Mechem, in his work on Public Officers and Offices, section 397, says, in speaking of a provision in such law that an officer holds over:

"When, however, no such provision is made, the question of the incumbent to hold over is not so clear; but the prevailing opinion in this country seems to be that unless such hold over be expressly or impliedly prohibited the incumbent may hold over until some one else is elected and qualitied to assume the office.'

"The gist of this statement seems to be that, unless the statute prohibits an incumbent from holding over, he does, as a matter of law, remain in rightful possession of his office until some one else is duly authorized to assume the office. It may be said, in passing, that authorities are plentiful in support of this proposition, the question having arisen a great number of times under various phases, it being held to be

« AnteriorContinuar »