THE MILITARY LAWS OF THE UNITED STATES. and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other offi cers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; 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.' Constitution, Art. II, sec. 2, par. 2. The * * * pardon crimes; and the President, having no title to forfeited property, can not 'Public of ce-An office is a public station, or employment, conferred by the ap pestment of Government. The term embraces the ideas of tenure, emolument, and dites The duties are continuing and permanent, not occasional and transitory and are defined by rules prescribed by Government and not by contract. 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. U S. v. Hartwell, 6 Wall.,385, 394; Ú. S. Maurice, 2 Brockenbrough, 103. A public officer is the incumbent of an office **lo exercises continuously, and as a part of the regular and permanent administration of the Government, its public powers, trusts, and duties." Sheboygan Co. v. Parker, 3 Wall, 93, 96. Unless a person in the service of the Government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States. U. S. v. Mouat, 124 US300 307 C. S. e. Germaine, 99 U. S.. 508, 510. Appointments to office. - Appointments provided for by act of Congress, merely in Powers of officers - All the officers of the Government. from the highest to the lowest are but agents with delegated powers, and if they act beyond the scope of the delegated powers their acts do not bind the principal U.S.. Maxwell Grant, 21 Fed Rep., 19. An officer can only bind the Government by acts which come within a just exercise of his official power. Hunter v. U. S., 5 Pet., 173, 178: The Floyd Acceptances, 7 Wall 666; State v. Hastings, 12 Wis., 596. It is a question of law for the court whether an act is a part of the official duty of a public officer. U.S. v. Tuchanan, & How, 83. Every public officer is required to perform all duties which are strictis official although they may be required by laws passed after he comes into e and may be cumulative upon his original duties, and although his compensation there for be wholly inadequate. In such case he must look to the bounty of Congrows for any additional reward. Andrews e. U. S., 2 Story, 202. An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and Ident man, acting under a just sense of his obligations, would exercise under the at nces of a particular case, and if he fails and neglects to do so he is culpaSr. Baldridge, 11 Fed. Rep., 552. Preemptions as to official acts. The acts of an officer to whom a public duty is agued within the sphere of that duty, are prima facie within his power. U.S. v. Arredindo 6 Pet., 091, U. S. v. Clarke, & ibid., 436, 452; Percheman v. Ú. S., 7 ibid., 51; Dasis r U.S., 9 ibid., 117, 134; Strother v. Lucas, 12 ibid., 410, 438; U. S. v. Peralta, 19 H. 143. 347. When a particular functionary is clothed with the duty of decid ing a certain question of fact, his decision in the absence of fraud, is conclusive. Lagan The County, 16 Wall.. 6. He who alleges that an officer intrusted with important duty has violated his instructions, must show it. The courts ought to 7 President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Ibid., par. 3. require very full proof that an officer has transcended his powers before they so determine. U. S. v. Peralta, 19 How., 343, 347; Delassus v. U. S., 9 Pet., 117, 134. When a public officer is to do any act on proof of certain facts, of the competency and sufficiency of which he is to judge, it is to be presumed, from the doing of the act, that the proof was regularly and satisfactorily made, and its sufficiency is not subject to reexamination. Phil. and Tren. R. R. Co. v. Stimpson, 14 Pet., 448. Tenure.-The power to appoint includes the power to remove, when the Constitu tion has not otherwise provided, and when the laws of Congress have not fixed a tenure of office. Ex parte Hennen, 13 Pet., 230; U. S. v. Avery, Deady, 204. When Congress, by law, vests the appointment of inferior officers in the heads of Departments, it may limit and restrict the power of removal as it deems best for the public interests. U. S. v. Perkins, 116 U. S., 483. Resignation That a public office may be vacated by resignation is established by long and familiar practice, and is recognized by express provision of law. Nor can there be any doubt that a resignation may be effected by the concurrence of the officer and the appointing power; its essential elements are an intent to resign on the one side and an acceptance on the other. It may be either in writing or by parol, expressly or by implication. To perfect a resignation nothing more is necessary than that the proper authority manifest in some way its acceptance of the offer to resign. It then becomes effectual, and operates to relieve the incumbent either immediately or on the day specially fixed according to its terms. An offer to resign is revocable prior to acceptance; after acceptance and before it has taken effect it may be modified, or withdrawn by consent of both parties, but this control extends no further. When a resignation once takes effect the official relations of the incumbent are ipso facto dissolved; he has no longer any right to, or hold upon, the office. 14 Opin. Att. Gen., 259. 14. Extra compensation disal- 31. Employees to be paid from lowed. 15. Chief clerks to supervise sub ordinate clerks. 16. Chief clerks to distribute duties, etc. 17. Duty of chief on receipt of re port. 18. Disbursing clerks. 19. Hours of labor in Executive specific appropriations only. Civil officers not to be detailed for duty in the District of Columbia. Appointments to be apportioned among the States and Territories. 32. Oaths, when administered by officers, etc. Departments. Leaves of ab- 33. No Department officer to sence. Sick leaves. Exten- charge fees for oath of office to employees. Application of provisions of this title. Sec. 158, R. S. Sec. 159, R. S. Word" Depart ment. 34. Chief clerks of Executive De- 51. Department reports, when to be furnished to printer. partments to administer oath 42. Evidence to be furnished by 43. Employment of attorneys or 44. Persons formerly in the De 57. Report of number of employees who are below a fair standard of efficiency. Requesting, etc., contributions by officers of Government for political purposes prohibited. Draping public buildings in mourning prohibited. 1 partments not to prosecute 58. Closing Departments for deceased ex-officials prohib ited. claims in them. 45. Purchases from contingent 59. Official postage stamps for de partmental use. 60. Penalty envelopes for inclosure of answers to official communications. 61. No contracts to be made for rent of any building in Washington without appro priation therefor, etc. 5. The provisions of this title shall apply to the following Executive Departments: First. The Department of State. Seventh. The Department of the Interior. The word "Department" when used alone in this title, and titles five, six, seven, eight, nine, ten, and eleven, means one of the Executive Departments enumerated in the preceding section.1 The titles so numbered in the Revised Statutes are the ones above referred to. regulations. 4. v. 1. p. 28; Sept. 6. The head of each Department is authorized to pre- Departmental scribe regulations, not inconsistent with law, for the gov- July 27, 1789, c. ernment of his Department, the conduct of its officers and 15, 179, c. 14, v. 1, clerks, the distribution and performance of its business, 1849, c. 7. v. 1. p and the custody, use, and preservation of the records, papers, and property appertaining to it.' p. 68; Aug. 7, 49; Sept. 2, 1789, c. 12. 1, p. 65; June 8, 1872. c. 335, v. 17. p. 283; Apr. 30, 1798, c. 35, v. 1, p. 553; June 22, 1870, c. 150, s. 8, v. 16, p. 163; Mar. 3, 1849, c. 108, v. 9, p. 393. 'The President speaks and acts through the heads of the several Executive Departments in relation to subjects which appertain to their respective duties. Wilcox r. Jackson, 13 Pet., 498, 513, Wolsey v. Chapman, 101 U. S., 755. It is the general theory of departmental administration that the heads of the Executive Departments are the executors of the will of the President. 10 Opin. Att. Gen., 527. As a general rule the direction of the President is to be presumed in all instructions and orders issuing from the competent Department. 7 id., 453. Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing express reference to the direction of the President. 7 id., 453. The duties of the heads of the several Executive Departments are derived, in part, from the Constitution and are, in part, imposed by statute. In the execution of the former, they act as the repre sentatives of the President, to whom they are responsible for their correct performance. For duties imposed by statute their responsibility is to the legislature, and they are controlled in all matters relating to performance by such statutory rules and regulations as Congress may see fit to impose. (See Marbury v. Madisoŭ, 1 Cr. 137. and par. 1, note 1.) The executive power is vested in a President, and so far as his powers are derived from the Constitution he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power, but it by no means follows that every officer in every branch of that Department is under the exclusive direction of the President. There are certain political duties imposed upon many officers in the executive department the discharge of which is under the direction of the President, but it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution, and, in such cases, the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the President, and this is emphatically the case where the duty is of a ministerial character. Kendall v. U.S., 12 Pet., 524, 610. Ministerial and discretionary duties. - The duties performed by the heads of the sev eral Executive Departments are either ministerial or discretionary or quasi judiciaľ in character. "The question whether the legality of an act of the head of a Depart ment be examinable in a court of justice or not must always depend on the nature of the act. By the Constitution of the United States the President is invested with certain important political powers in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity to his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control their discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the Executive the decision of the Executive is conclusive. The conclusion is that where the heads of Departments are the political or confidential agents of the Executive, merely to execute the will of the President, nothing can be more perfectly clear than that their acts are only politically examinable. Marbury v. Madison, 1 Cr., 137, 166; Kendall v. U. S., 12 Pet., 524, 611; Decatur r. Paulding, 14 Pet., 497, 515. We are not aware of any case in Fngland or this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable for an error of judg ment. A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. Kendall v. Stokes, 3 How., 87, 98; Gould r. Hammond, 1 Me All., 235, 243; Noble . Union River Logging Co., 147 U. S., 165, 171. A ministerial duty, the performance of which may, in proper cases, be required of the head of a Department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. Mississippi r. Johnson, 4 Wall., 475, 498; Marbury v. Madison, 1 Cr., 137; Kendall v. Stockton, 12 Pet., 524. As a mandamus can only be granted because there is no other adequate remedy at law, an action for damages can not be afterwards sustained, for the same cause of action, the two being inconsistent. Kendall v. Stokes, 3 How., 87, 102. Liability for damages.-The executive officers of the United States are personally liable at law for damages, in the ordinary forms of action, for illegal official, or min |