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there be none, then the chief clerk of such bureau, shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such chief or of such officer until a successor is appointed or such absence or sickness shall cease. R. S. 178; 5 U.S. C. 5.
In any of the cases mentioned in the two preceding sections, except the death, resignation, absence, or sickness of the Attorney General, the President may, in his discretion, authorize and direct the head of any other department or any other officer in either department, whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease. R. S. 179; 5 U. 8. C. 6.
A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than thirty days. R. S. 180; act of Feb. 6, 1891 (26 Stat. 733); 5 U. 8. C. 7.
No temporary appointment, designation, or assignment of one officer to perform the duties of another, in the cases covered by sections one hundred and seventy-seven and one hundred and seventy-eight, shall be made otherwise than as provided by those sections, except to fill a vacancy happening during a recess of the Senate. R. S. 181; 5 U. 8. C. 8.
An officer performing the duties of another office, during a vacancy, as authorized by sections one hundred and seventy-seven, one hundred and seventy-eight, and one hundred and seventy-nine, is not by reason thereof entitled to any other compensation than that attached to his proper office. R. S. 182; 5 U. S. C. 9.
During the absence of the Quartermaster General, or the chief of any military bureau of the War Department, the President is authorized to empower some officer of the department or corps whose chief is absent to take charge thereof, and to perform the duties of Quartermaster General, or chief of the department or corps, as the case may be, during such absence. R. 8. 1132; sec. 1, act of Feb. 27, 1877 (19 Stat. 242); 10 U. S. C. 7.
See post, 899, act of Mar. 4, 1874 (18 Stat. 19), providing that the Secretary of War, when temporarily absent from the War Department, may authorize the chief clerk of the department to sign requisitions on the Treasury Department and other papers,
The seventh paragraph of tbis section, based on R. S. 1132 as amended; 10 U. S. C. 7, has not and should not be repealed (J. A. G. 010.3, July 8, 1930, p. 19).
It contains the substance of sec, 5 of the act of July 4, 1836 (5 Stat. 117), wbich was passed in order to enable Q. M. Gen. Thos. S. Jesup to exercise command of the troops engaged in the prosecution of the Florida war. Gen. Jesup served under this assignment from May 19, 1836, to July 7, 1838, when he resumed the performance of his duties as Quartermaster General in the War Department. It was superseded by the different provisions relating to the same subject of act of Mar. 3, 1875 (18 Stat. 338); but thereafter it was amended by sec. 1, act of Feb. 27, 1877 (19 Stat. 242), by the addition of a provision that all appointments in the department should be made from the Army, and of the further provision set forth here. Appointments from civil life to fill vacancies in the department were authorized by a provision of act of Mar. 3, 1883 (22 Stat. 457), thus superseding the first provision added by the amendment. These and subsequent provisions relating to the department were superseded by sec. 16, act of Feb. 2, 1901 (31 Stat. 751), by secs. 3, 4, act of Aug. 24, 1912 (37 Stat. 591), by act of Mar. 4, 1915 (38 Stat. 1066), and by sec. 9, act of June 3, 1916 (39 Stat. 170), which was stricken out by sec. 9, act of June 4, 1920 (41 Stat. 786).
The President was empowered to authorize and direct the commanding general of the Army or the chief of any military bureau of the War Department to perform the duties of the Secretary of War, under the provisions of this section, by act Aug. 5, 1882, sec. 1, post, 891.
Provision for performance of the duties of the Secretary of Agriculture, the Secretary of the Interior, and the Secretary of State, during their absence or sickness, was made by Executive Orders Nos. 7465, October 6, 1936, 7479, October 27, 1936, and 7487, November 12, 1936. See third paragraph of this section (R. S. 179).
869. Heads of departments, annual reports; time of submission.-Except where a different time is expressly prescribed by law, the various annual reports required to be submitted to Congress by the heads of departments shall be made at the commencement of each regular session, and shall embrace the transactions of the preceding year. R. S. 195; 5 U. S. 0. 106.
The appropriations made for printing and binding shall not be used for any annual report or the accompanying documents unless the manuscript and proof therefor is furnished to the Public Printer in the following manner: Manuscript of the documents accompanying such annual reports on or before the 1st day of November of each year; manuscript of the annual reports on or before the 15th day of November of each year; complete revised proofs of the accompany. ing documents on the 1st day of December of each year and of the annual reports on the 10th day of December of each year; and all of said annual reports and accompanying documents shall be printed, made public, and available for distribution not later than within the first five days after the assembling of each regular session of Congress. The provisions of this section shall not apply to the annual reports of the Smithsonian Institution, the Commissioner of Patents, the Comptroller of the Currency, or the Secretary of the Treasury. Sec. 3, act of July 1, 1916 (39 Stat. 336); sec. 8, Title V, act of June 20, 1936 (49 Stat. 1550); 5 U. 8. C. 108.
A large number of annual reports and statements hitherto required to be made to Congress are no longer required by reason of specific mention in sec. 1, act of May 29, 1928 (45 Stat. 986).
870. Annual reports; printing.* Heads of executive departments shall direct whether reports made to them by bureau chiefs and chiefs of divisions shall be printed or not.
Sec. 89, act of Jan. 12, 1895 (28 Stat. 623); 44 U. 8. 0. 913.
In order to keep the expenditures for printing and binding for the fiscal year 1930 within or under the appropriations for such fiscal year, the heads of the various executive departments and independent establishments are authorized to discontinue the printing of annual or special reports under their respective jurisdictions: Provided, That, where the printing of such reports is discontinued, the original copy thereof shall be kept on file in the offices of the heads of the respective departments or independent establishments for public inspection. Sec. 1, act of Feb. 28, 1929 (45 Stat. 1402), making appropriations for legislative branch of the Government.
A provision similar to second paragraph has appeared in prior and subsequent appropria
870a. Annual reports to include statement of receipts.- In the annual report to Congress of each executive department or independent establishment there shall be included a statement of receipts during the period covered by such report, from fees or charges paid to such department or establishment under this Act and all other Acts of Congress. Sec. 313, Title III, Part II, act of June 30, 1932 (47 Stat. 411); 5 U. S. C. 104a.
See 1778, post. 871. Heads of departments; reports on condition of public business.-* * Hereafter it shall be the duty of the head of each executive department, or other Government establishment at the seat of government, not under an executive department, to make at the expiration of each quarter of the fiscal year a written report to the President as to the condition of the public business in his executive department or Government establishment, and whether any branch thereof is in arrears. Sec. 7, act of Mar. 15, 1898 (30 Stat. 317); 5 U. S. O. 32.
872. Heads of departments; statements of receipts from sales of public property. Hereafter the Secretary of the Treasury shall require, and it shall be the duty of the head of each executive department or other Government establishment to furnish him, within thirty days after the close of each fiscal year, a statement of all money arising from proceeds of public property of any kind or from any source other than the postal service, received by said head of department or other Government establishment during the previous fiscal year for or on account of the public service, or in any other manner in the discharge of his official duties other than as salary or compensation, which was not paid into the General Treasury of the United States, together with a detailed account of all payments, if any, made from such funds during such year. All such statements, together with a similar statement applying to the Treasury Department, shall be transmitted by the Secretary of the Treasury to Congress at the beginning of each regular session. Sec. 5, act of June 30, 1906 (34 Stat. 763); 31 U. S. C. 626.
* Provided, That hereafter the provisions of section five of the act of June thirtieth, nineteen hundred and six (Thirty-fourth Statutes, page seven hundred and sixty-three), shall not be construed to apply to the Subsistence Department. Sec. 1, act of Aug. 24, 1912 (37 Stat. 579); 31 U. 8. C. 626.
By sec. 3, act of Aug. 24, 1912 (37 Stat. 579) the Subsistence Department was consolidated with the Quartermaster Corps.
873. Heads of departments; use of Library of Congress.—The Joint Committee on the Library is authorized to grant the privilege of using and drawing books from the Library, in the same manner and subject to the same regulations as members of Congress, to any of the following persons:
First. Heads of departments. * * R. 8. 94; 2 U. 8. C. 137a.
The Chief of Engineers is specifically granted the use of the Library of Congress by 245a, ante.
874. By 631, ante, the Bureau of Eficiency and the office of Chief of such bureau were abolished, and its records and property transferred to the Bureau of the Budget. Unexpended balances of appropriations were directed to be impounded and returned to the Treasury.
The text of this section as published in the 1929 Edition, based on section 1, act of February 20, 1929 (45 Stat. 1233) ; 5 U. 8. C. 661a, is accordingly omitted as no longer operative.
875. Closing departments in respect for a deceased ex-official.--That hereafter the executive departments of the Government shall not be closed as a mark to the memory of any deceased ex-official of the United States. Sec. 4, act of Mar. 3, 1893 (27 Stat. 715); 5 U. 8. C. 28.
876. The text of this section as published in the 1929 Edition, based on R. S. 162, 6 U. S. C. 26, was expressly repealed by act of December 16, 1930 (46 Stat. 1028).
877. Legal advice to War and Navy Departments.--Whenever a question of law arises in the administration of the Department of War or the Department of the Navy, the cognizance of which is not given by statute to some other officer from whom the head of the department may require advice, it shall be sent to the Attorney General, to be by him referred to the proper officer in his department, or otherwise disposed of as he may deem proper. R. S. 357; 5 U. S. C. 307.
878. Legal advice to President and heads of departments. The officers of the Department of Justice, under the direction of the Attorney General, shall give all opinions and render all services requiring the skill of persons learned in the law necessary to enable the President and heads of departments, and the heads of bureaus and other officers in the departments, to discharge their respective duties; and shall, on behalf of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested ; and no fees shall be allowed or paid to any other attorney or counselor at law for any service herein required of the officers of the Department of Justice, except in the cases provided by section three hundred and sixty-three. R. 8. 361; 5 U. S. C. 306.
R. S. 363 provides that, “The Attorney General shall, whenever in his opinion, the public interest requires it, employ and retain in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings."
879. Opinions of Attorney General.—The head of any executive department may require the opinion of the Attorney General on any questions of law arising in the administration of his department. R. S. 356; 5 U. S. C. 304.
Notes of Decisions
In general.-There can rarely be proper | also because the Secretary is not required to occasion for the rendition of an opinion by determine the constitutional power of Conthe Attorney General on the constitution-gress in such legislative field. (1929) 36 Op. ality of legislation after it has been enacted. Atty. Gen. 21. Such an opinion requested in connection with To be considered by the Attorney General the issue of bonds under the Federal Home a question must be not only one arising in Loan Bank Act of July 22, 1932 (47 Stat. the administration of a Department but it 725) ; 12 U. S. C., 1421 et seq. would be for must be one still pending. A matter which the guidance of private persons who engage has been considered and decided is not a in transactions with the Government rather "question" upon which the head of a Dethan on "questions of law arising within the partment may require an opinion of the administration of a department," and re- head of the Department of Justice. (1933) quest for same should be withdrawn. (Mar. 37 Op. Atty. Gen. 261. 26, 1937) 39 Op. Atty. Gen. No. 2.
Questions for determination by court.It is not the function of the Attorney Gen- Where questions presented can be settled eral to render opinions on questions which finally only by the courts, it is the settled have been considered and decided by a de- rule of the Department of Justice that the partment, or for the guidance of persons who | Attorney General will not render an opinion. engage
in transactions with the United (1933) 37 Op. Atty. Gen. 143; (1934) 37 States. (June 14, 1937) 39 Op. Atty. Gen. Op. Atty. Gen. 468. No. 12.
Questions as to availability of appropria. Hypothetical questions. — The Attorney tions.-It has been the practice of the AtGeneral is not authorized to render an opin- torneys General not to render opinions as to ion upon the question whether there would whether an appropriation is available for be any constitutional objection to the enact- a specific purpose unless the expenditure of ment by Congress of legislation requiring such appropriation is discretionary with the telegraph and cable companies to furnish to head of the department or establishment the Government for transmission to foreign concerned, or there are other questions of countries copies of telegrams and cablegrams law involved, or the subject is one of great relating to the smuggling of narcotic drugs, importance. (1934) 37 Op. Atty. Gen. 543. because the question is hypothetical; and
880. Counsel to investigate claims.—Whenever any head of a department or bureau, having made application pursuant to section one hundred and eightyfour, for a subpæna to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his department or bureau, he shall give notice thereof to the Attorney General, and of all facts necessary to enable the Attorney General to furnish proper professional service in attending such examination, or making such investigation, and it shall be the duty of the Attorney General to provide for such service. R. 8. 187; 5 U. S. C. 48.
Whenever the head of a department or bureau gives the Attorney General due notice that the interests of the United States require the service of counsel upon the examination of witnesses touching any claim, or upon the legal investigation of any claim, pending in such department or bureau, the Attorney General shall provide for such service. R. S. 364; 5 U.S. C. 313.
R. S. 184, mentioned above, is set forth, ante, 705.
881. Official records; access by Bureau of the Budget.—Under such regulations as the President may prescribe, (1) every department and establishment shall furnish to the bureau such information as the bureau may from time to time require, and (2) the director and the assistant director, or any employee of the bureau when duly authorized, shall, for the purpose of securing such information, have access to, and the right to examine, any books, documents, papers, or records of any such department or establishment. Soc. 213, act of June 10, 1921 (42 Stat. 23); 31 U. 8. C. 21.
882. Official records; access by Comptroller General.-All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of his assistants or employees, when duly authorized by him, shall, for the purpose of securing such information, have access to and the right to examine any books, documents, papers, or records of any such department or establishment. The authority contained in this section shall not be applicable to expenditures made under the provisions of section 291 of the Revised Statutes. Sec. 313, act of June 10, 1921 (42 Stat. 26); 31 U. S. C. 54.
R. S. 291, mentioned above, refers to settlement of expenses of intercourse with foreign nations.
883. By 631, ante, the Bureau of Emciency was abolished and its records and property transferred to the Bureau of the Budget. The text of this section as published in the 1929 Edition, based on section 1, act of March 3, 1917 (39 Stat. 1081), is accordingly omitted as no longer operative.
883a. Information furnished Federal Farm Board.—(b) The President may by Executive order direct any such governmental establishment to furnish the board such information and data as such governmental establishment may have pertaining to the functions of the board; except that the President shall not direct that the board be furnished with any information or data supplied by any person in confidence to any governmental establishment in pursuance of any provision of law or of any agreement with a governmental establishment. Sec. 13, act of June 15, 1929 (46 Stat. 17); 12 U. S. C. 11h1h.
883b. Information furnished Census Bureau.—That the Secretary of Commerce, whenever he may deem it advisable, on request of the Director of the Census, is hereby authorized to call upon any other department or office of the Government for information pertinent to the work herein provided for. Sec. 15, act of June 18, 1929 (46 Stat. 25); 13 U. 8. C. 215.
883c. Information furnished United States Tariff Commission.-The commission shall in appropriate matters act in conjunction and cooperation with any other departments, or independent establishments of the Government, and such departments and independent establishments of the Government shall cooperate fully ithw the commission for the purposes of aiding and assisting in its work, and, when directed by the President, shall furnish to the commission, on its request, all records, papers, and information in their possession relating to any of the subjects of investigation by the commission and shall detail, from time to time, such officials and employees to said commission as he may direct. Sec. 334, act of June 17, 1930 (46 Stat. 700); 19 U. 8. C. 1334.