164. Appointments to civil office; preferences.-Persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointments to civil service offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices. Sec. 1754, R. S.

165. Recommendation of military persons for private employment.—In grateful recognition of the services, sacrifices, and sufferings of persons honorably discharged from the military and naval service of the country, by reason of wounds, disease, or the expiration of terms of enlistment, it is respectfully recommended to bankers, merchants, manufacturers, mechanics, farmers, and persons engaged in industrial pursuits, to give them the preference for appointments to remunerative situations and employments. Sec. 1755, R. S. 166. Examination for the civil service.-After the expiration of six months from the passage of this act no officer or clerk shall be appointed, and no person shall be employed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be specially exempted from such examination in conformity herewith. But nothing herein contained shall be construed to take from those honorably discharged from the military or naval service any preference conferrd by the seventeen hundred and fiftyfourth section of the Revised Statutes 1 nor to take from the President any authority not inconsistent with this act conferred by the seventeen hundred and fifty-third section of said statutes; nor shall any officer not in the executive branch of the Government, or any person merely employed as a laborer or workman, be required to be classified hereunder; nor, unless by direction of the Senate, shall any person who has been nominated for confirmation by the Senate be required to be classified or to pass an examination. Sec. 7, Act of Jan. 16, 1883 (22 Stat. 406).

1

167. Salaries. No money shall be paid from the Treasury to any person acting or assuming to act as an officer, civil, military, or naval, as salary, in any office when the office is not authorized by some previously existing law, unless such office is subsequently sanctioned by law. Sec. 1760, R. S.

168. Same.-No money shall be paid from the Treasury, as salary, to any person appointed during the recess of the Senate to fill a vacancy in any existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until such appointee has been confirmed by the Senate. Sec. 1761, R. S.

['Paragraphs 163 and 164 ante.]

169. Persons drawing $2,500 yearly compensation not to hold second office.-No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office, by and with the advice and consent of the Senate.1 Sec. 2, act of July 31, 1894 (28 Stat. 205).

'The traditions and usages of the United States recognize the policy and propriety of employing, when necessary, the same person at the same time in two distinct capacities. Not to mention other familiar cases, there are the prominent examples of the diplomatic mission of Mr. Jay to England, under President Washington, while he was still Chief Justice of the United States; of the mission of Mr. Gallatin to London and St. Petersburg, to negotiate a peace, while Secretary of the Treasury under President Madison; and of Mr. Justice Nelson, sitting as a member of the commission which concluded the treaty of Washington, under President Grant. On the other hand, it is the undoubted aim of general legislation respecting salaries to gauge the work so as to give full employment to the capacities of the man likely to be appointed to do it, and to measure the pay according to the work. In construing statutes restraining the Executive from giving dual or extra compensation, courts have aimed to carry out the legislative intent by giving them sufficient flexibility not to injure the public service and sufficient rigidity to prevent Executive abuse. (Landram v. U. S., 16 Ct. Cls., 74, 82.) The great object has been to establish by law the compensation for public services, whether in offices or agencies, where the nature and character of the duties to be performed were sufficiently known and definite to enable Congress to form an estimate of its value and not leave it to the discretion of the head of an Executive Department. * These sections "can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place and the amount of compensation is regulated by law. * * The just and fair inference from these acts of Congress taken together is that no discretion is left to the head of a Department to allow an officer, who has a fixed compensation, any credit beyond his salary, unless the service he has performed is required by existing laws and the remuneration for them is fixed by law." (Converse v. U. S., 21 How., 463, 470, 473; U. S. v. Brindle, 110 U. S., 688, 694; U. S. v. Shoemaker, 7 Wall., 338; Meigs v. U. S., 19 Ct. Cls., 497; XV Opin. Att. Gen., 608; 1 Comp. Dec., 286; 2 id., 33; Crosthwaite v. U. S., 30 Ct. Cls., 300.)

* *

A question having arisen as to the payment of a per diem to the members and certain employees of the Bering Sea Tribunal of Arbitration, it was held: As to Justice Harlan and Senator Morgan, that the terms of section 1763 of the Revised Statutes, as amended by the act of July 31, 1894 (28 Stat. 205), did not apply, as they had been appointed to separate and distinct offices not incompatible with the offices of justice of the Supreme Court, Senator of the United States, and retired judge. Payments to them were therefore allowed. (U. S. v. Saunders, 120 U. S., 126.) As to Senator Morgan, it was held that membership of a tribunal of arbitration did not constitute the holding of office under the authority of the United States under Article I, section 6, of the Constitution, and that Senator Morgan was not thereby prohibited from sitting thereon. The payment of per diem allowances to clerks and other regular employees of the United States, who had been detailed from the several Executive Departments to assist the tribunal in its labors, was held to be unauthorized under section 1765 of the Revised Statutes Held, under this section, that a major and paymaster of the Army detailed as disbursing officer of the Bering Sea Tribunal of Arbitration at Paris, could not receive any other allowances or emoluments than

170. No extra allowances for disbursing money, etc.-No officer1 in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.3 Sec. 1765, R. S.

171. False entry by officer or agent. Whoever, being an officer, clerk, agent, or other person holding any office or employment under the Government of the United States and, being charged with the duty of keeping accounts or records of any kind, shall, with intent to deceive, mislead, injure, or defraud the United States or any person, make in any such account or record any false or fictitious entry or record of any matter relating to or connected with his duties, or whoever with like intent shall aid or abet any such officer, clerk, agent, or other person in so doing; or whoever, being an officer, clerk, agent, or other person holding any office or employment under the Government of the United States and, being charged with the duty of receiving, holding, or paying over moneys or securities to, for, or on behalf of the United States, or of receiving or holding in trust for any person any moneys or securities, shall, with like intent, make a false report of such moneys or securities, or whoever with like intent shall aid or abet any such officer, clerk, agent, or other person in so doing, shall be fined not more than five

those specified in this section as allowance to officers of the Army. (Comp. Dec., 1893-94, 275.)

A compensation for extra services, where no certain allowance is fixed by law, can not be paid by the head of a Department to any officer of the Government who has, by law, a certain compensation in the office he holds. (X Opin. Att. Gen., 31.) The various provisions of law forbidding extra allowance or additional pay for extra service imply extra-service pay or allowance in the same office, not distinct service in distinct offices. (VIII Opin. Att. Gen., 325.) Where the service is one required by law, but not of any particular official, and compensation therefor is fixed by competent authority, and is appropriated, any officer who, under due authorization, performs the service is entitled to the compensation. (XV Opin. Att. Gen., 608. See also Converse, admr., v. U. S., 21 How., 463; U. S. v. Shoemaker, 7 Wall., 338; Stansbury v. U. S., 8 Wall., 33; XIX Opin. Att. Gen., 121.) But see for exception, section 7, act of June 3, 1896 (29 Stat. 235.)

1

An officer is one who is invested with an office, and an office is authority, granted by law, to exercise a function of Government. An employee is one who is employed under a contract to perform personal service. An office is distinguished from a public employment by the fact that in the one case the authority to perform a public service is derived from the law, while in the other it is derived from a contract. IV Comp. Dec., 696.

3

Salary is fixed when it is at a stipulated rate for a definite period of time; pay or emolument is fixed when the amount is agreed upon and the service is defined. Hedrick v. U. S., 16 Ct. Cls., 88.

The provisions of section 1765, Revised Statutes, which prohibit the pay ment of additional compensation, apply to two classes of persons only, viz, officers in the public service and employees whose compensation is fixed by law or regulations. IV Comp. Dec., 696. See, also, id., 424.

thousand dollars, or imprisoned not more than ten years, or both. Act of Mar. 4, 1911 (36 Stat., 1355).

172. Officer, etc., not to solicit or receive political contributions.No Senator or Representative in, or Delegate or Resident Commissioner to Congress, or Senator, Representative, Delegate, or Resident Commissioner elect, or officer or employee of either House of Congress, and no executive, judicial, military, or naval officer of the United States, and no clerk or employee of any department, branch or bureau of the executive, judicial, or military or naval service of the United States, shall, directly or indirectly, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employee of the United States, or any department, branch, or bureau thereof, or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States. Sec. 118, Act of Mar. 4, 1909, Criminal Code (35 Stat. 1110).

173. Same. No person shall, in any room or building occupied in the discharge of official duties by any officer or employee of the United States mentioned in the preceding section, or in any navyyard, fort, or arsenal, solicit in any manner whatever or receive any contribution of money or other thing of value for any political purpose whatever. Sec. 119, id.

174. Same. No officer or employee of the United States mentioned in section one hundred and eighteen, shall discharge, or promote, or degrade, or in any manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. Sec. 120, id.

175. Same. No officer, clerk, or other person in the service of the United States shall, directly or indirectly, give or hand over to any other officer, clerk, or person in the service of the United States, or to any Senator or Member of or Delegate to Congress, or Resident Commissioner, any money or other valuable thing on account of or to be applied to the promotion of any political object whatever. Sec. 121, id.

176. Same; Penalty.-Whoever shall violate any provision of the four preceding sections shall be fined not more than five thousand dollars, or imprisoned not more than three years, or both. Sec. 122, id.

177. No officer or clerk to solicit for gift to superior.-No officer, clerk, or employee in the United States Government employ shall at any time solicit contributions from other officers, clerks, or em

ployees in the Government service for a gift or present to those in a superior official position; nor shall any such officials or clerical superiors receive any gift or present offered or presented to them as a contribution from persons in Government employ receiving a less salary than themselves; nor shall any officer or clerk make any donation as a gift or present to any official superior. Every person who violates this section shall be summarily dismissed from the Government employ. Sec. 1784, R. S.

1This section was held to be constitutional by the Supreme Court in Ex parte Curtis, 106 U. S., 371,