27. Official Papers of the Presidents

All presidential papers prior to and through Cleveland's second administration, ending March 4, 1897, may be found in Richardson's Compilation.2 24 For later administrations, these papers generally are accessible in separate form.

28. Annual Messages

The Annual Messages were known as "speeches," until the seat of government was removed to Washington, because they were delivered orally by Presidents Washington and Adams before the legislative branches in general assembly. President Jefferson inaugurated the custom of sending a "message." Such speeches and messages of the first five presidents are found in American State Papers, Foreign Relations.25

29. Executive Orders

Prior to October, 1905, executive orders were printed as presidential papers, but more frequently issued only by those departments most immediately concerned in their promulgation. Later the President customarily sent all executive orders to the Bureau of Rolls and Library, State Department, for limited distribution.

30. Inaugural Addresses

Inaugural addresses are found in the Senate Journals and Congressional Record.

31. Miscellaneous Addresses and Papers

Washington's Farewell Address to the people of the United States was delivered September 17, 1796.24 26 The Monroe Doctrine was part of the seventh annual message, December 2, 1823.27 Lincoln's proclamation of January 1, 1863, and Gettysburg Address are found in the annual volume of Foreign Relations, State Department.28

24 Compilation of Messages and Papers of Presidents, 1789-1897 (Richardson) 10 vols., Congressional Document, Serial No. 3265. A supplement was issued containing McKinley and Roosevelt papers up to 1902.

25 Vol. I, Serial No. 01, pp. 11-32, 44-54, 57-73; Vol. IV, Serial No. 04, pp. 1, 96, 213, 626, 644, 736; Vol. V, Serial No. 5, pp. 141, 245, 253. See "Messages and Documents" of the different sessions of Congress, 1848-1892; Abridgment of Messages and Documents; Annals of Congress, 1790-1823; Register of Debates in Congress, 1824-1836; Congressional Globe, 1833-1872; Congressional Record, 1873 to date. In each case of Congressional Record and its predecessors, see part which contains the proceedings at the opening of each regular session of Congress.

26 American State Papers, supra, vol. I, pp. 34-38.

27 American State Papers, vol. IV.

28 See Annual Report of Secretary of War, 1865.

8

CHAPTER 2

THE EXECUTIVE DEPARTMENTS IN GENERAL

1. Grouping of Departmental Functions

There are at present ten executive departments of the federal government. They have been created by statutory authority, as will appear infra. The functions of the several departments are grouped generally, so that each has a certain class of duties; but some of the departments include important additional activities that bear little resemblance to the general nature of the department to which assigned, as, for example, prohibition enforcement in the Treasury Department, the enforcement of the Food and Drugs Act under the Department of Agriculture, the Bureau of Insular Affairs under the War Department, etc.

2. Meaning of "Executive Department"

The term "executive departments," when used in the federal statutes, "invariably applies to one or more of the several executive departments mentioned" in section 158 of the Revised Statutes:1

Department of State;

Department of War;

Department of the Treasury;

Department of Justice;

Post Office Department;

Department of the Navy;

Department of the Interior;

to which have been added by subsequent acts of Congress:

Department of Agriculture;

Department of Commerce;
Department of Labor.

The term "department," as used in laws relating to civil service, is distinguished from "office," "bureau," and "branch." 12

3. At Seat of Government

The several executive departments are by law established at the seat of government and have no existence elsewhere.2

4. Bureau

Only those bureaus or offices can be deemed bureaus or offices in any of these departments except those which are constituted such by the law of its organization.

5. Constitutional Recognition

The Constitution recognizes the existence of subordinate, ministerial, administrative functionaries, by whose agency or counsels the details of public business

126 Op. Attys. Gen. 209.

215 Op. Attys. Gen. 262.

are transacted, without specifying their number and organization, which is left to Congress. In the exercise of this duty Congress, among its earliest acts, established a "Department of Foreign Affairs," a "Department of War," and a "Department of Treasury." 3

6. Status of the Head of a Department

The head of each department, except the Post Office Department and that of the Attorney General, is known as "Secretary"; the excepted ones being presided over, respectively, by the Postmaster General and the Attorney General. Such departmental chiefs are constituted advisers of the President and are members of his Cabinet. Their functions and duties are prescribed by law. As stated in Chapter 1, their acts are the acts of the President. In legal contemplation the head of a department is an arm of the Executive. If one of the executive departments acts, it will be presumed, in the absence of the evidence to the contrary, that he acted by direction of the President. It will not be presumed that an act of one of the executive departments was performed without the concurrence of the President."

An act of Congress authorizing the secretary of a certain executive department to sell certain government property does not confer an authority personal to the incumbent, but to the department involved, to be exercised under direction of the President. Nor is it material whether the authorized act is executed by the Secretary himself or by some officer acting under his authority.

6

The presumption is that, where an order is sent out from the proper executive department in the regular course of business, it is sent with the knowledge and approval of the head of department, unless the contrary appears. His acquiescence is the legal equivalent of an order."

7. Threefold Relation of Executive Departments

"Heads of departments have a threefold relation, namely: First, to the President, whose political or confidential ministers they are, to execute his will, or rather to act in his name and by his constitutional authority, in cases in which the President possesses a constitutional or legal discretion; second, to the law, for where the law has directed them to perform certain acts, and where the rights of individuals are dependent on those acts, then in such cases a head of department is an officer of the iaw, and amenable to the laws for his conduct; and, third, to Congress, in the conditions contemplated by the Constitution. This latter relationship is one of the great elements of responsibility and legality in their action. They are created by law; most of their duties are prescribed by law; Congress may at all times call on them for information or explanation in matters of official duty; and it may, if it sees fit, interpose by legislation concerning them, when required by the interests of the government.8

36 Op. Attys. Gen. 326.

4 Wolsey v Chapman, 101 U. S. 755, 25 L. Ed. 915; Runkle v. U. S., 122 U. S. 543, 7 S. Ct. 1141. 30 L. Ed. 1167; Medkirk v. U. S., 44 Ct. Cl. 469.

5 N. P. Ry. Co. v. Mitchell (D. C.) 208 F. 469.

6 Culliver v. Berge, 1 Rob. (La.) 427.

7 Medkirk v. U. S., 45 Ct. Cl. 395.

86 Op. Attys. Gen. 326.

8. Delegation of Power; President to Department

Where action required of the President is judicial in character, not administrative, it cannot be delegated to the head of a department."

9. Duties Imposed by Congress

The responsibility of the head of department, upon whom Congress may impose certain political duties, not repugnant to the Constitution, grows out of, and is subject to, the control of the law, and not to the direction of the President. "This is emphatically the case where the duty is of a mere ministerial character.'

"10

10. Powers Limited by Law

"We have no officer in this government, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority.'

" 11

11. Responsibility of Departmental Head

The head of a department should see that contracts which belong to his office are properly and faithfully executed, whether he made such contracts or conferred authority on another to do so, and if he becomes satisfied that contracts which he made are being fraudulently executed, or that contracts made by others were made in disregard of the rights of the government, or with intent to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest execution thereof, and adopt measures to protect the Government against the dishonesty of others.12

12. Ratification of Subordinate's Act Equivalent to Authorization

The Secretary of War, on appeal from the action of the American Governor of Cuba in abolishing a valuable franchise, confirmed the Governor's order. The Platt Amendment incorporated in the United States-Cuba Treaty, ratified and validated acts of the United States during military occupancy. The Secretary's approval and such ratification were equivalent to original authorization.13

13. Heads of Departments Immune from Civil Suits

The head of an executive department, keeping within the limits of his authority, in official communications in the discharge of duties imposed by law, enjoys immunity from civil suits for damages arising from such acts.14

9 Runkle v. U. S., 122 U. S. 543, 7 S. Ct 1141, 30 L. Ed. 1167. But see U. S. v. Fletcher, 148 U S. 84, 13 S. Ct. 552, 37 L. Ed. 378; 15 Op. Attys. Gen. 290.

10 Kendall v U. S., 12 Pet 524, 9 L. Ed. 1181.

11 The Floyd Acceptances, 7 Wall. 666, 19 L. Ed. 169.

12 U. S. v. Adams, 74 U. S (7 Wall) 463, 19 L. Ed. 249, reversing Adams v. U. S, 2 Ct. Cl. 70.

13 O'Reilly De Camara v. Brooke (D. C.) 142 F 858, affirmed. 209 U. S. 45, 28 S. Ct. 439, 52 L. Ed. 676.

14 Spalding v Vilas, 161 U. S. 483, 16 S. Ct. 631, 40 L. Ed. 780.

14. Heads of Department; Congressional Coercion

No separate resolution of either house of Congress can coerce a head of a department, unless in some particular in which the law, duly enacted, has subjected him to the direct action of each, for the authority of each head of a department is a parcel of the executive powers and to coerce such a head is to coerce the President.15

15. Mandamus Against Departmental Head

Mandamus may issue to compel a mere ministerial act, but not in a case where its effect is to direct or control the departmental head in the discharge of an executive duty involving the exercise of judgment and discretion.17

Mandamus lies against the Secretary of the Treasury to compel him to pay the amount of an appropriation to a contractor specifically named in the appropriation with whom the Secretary of the Treasury contracted to do a certain work, 18

16. Conclusiveness of Decision of Department Head

19

Decisions of departments of the government on questions of fact within the scope of their authority are conclusive, except on appeal within the department." A final decision by the head of a proper department, against one claiming as a public creditor, cannot be reversed by a succeeding head.20 Nor can the head of a department, in a matter involving judgment and discretion, reverse the decision and action of his predecessor, even in a matter relating to the general affairs and management of the business of the department. The incumbent may review a predecessor's decision only as to mistakes in matters of fact arising from errors in calculation, and to cases of rejected claims, in which material testimony is later discovered and produced.**

21

There are exceptions to this rule, as in matters of decisions in the General Land Office and the Post Office Department.24 A final decision of the head of department may be opened by resolution or act of Congress.25 It would be a precedent of doubtful propriety for the President to entertain an appeal from the decision of the head of a department respecting a private claim against the gov

156 Op. Attys. Gen. 680.

17 U. S. v. Blaine, 139 U. S. 306, 11 S. Ct. 607, 35 L. Ed. 183; U. S. v. Guthrie, 17 How. 284, 15 L. Ed. 102; U. S. v. Bowyer, 25 App. D. C. 121.

18 Cortelyou v. U. S., 32 App. D. C. 20.

19 Little Bill v. Swanson, 64 Wash. 650, 117 P. 481.

209 Op. Attys. Gen. 300.

21 Lavalette v. U. S., 1 Ct. Cl. 147; Jackson v. U. S., 19 Ct Cl. 504.

22 U. S. v. Bank of Metropolis, 15 Pet. 377, 10 L. Ed. 774; 2 Op. Attys. Gen 463; 5 Op. Attys. Gen. 87, 122, 664; 13 Op. Attys Gen. 226, 387; 17 Op. Attys. Gen. 315. Cf. 10 Op. Attys. Gen. 56

23 Washington Securities Co v. U. S., 234 U. S. 76. 34 S. Ct. 725, 58 L. Ed. 1220, affirming 194 F. 59, 114 C. C. A. 79.

24 Correspondence College v. Wynne, 25 App. D. C. 149, appeal dismissed 200 U S. 615. 26 S. Ct. 758, 50 L. Ed. 621; Payne v. Houghton, 22 App. D. C. 234, affirmed 194 U. S. 88, 24 S. Ct. 590, 48 L. Ed. 888.

25 12 Op. Attys. Gen. 355.