and would probably not have been made if they had been known at that time. It is also well established that such a decision may be opened by a resolution or act of Congress directing it to be done. (1868) 12 Op. Atty. Gen. 355, 358. And see (1859) 9 Op. Atty. Gen. 387, 388; (1870) 13 Op. Atty. Gen. 226, 228. When a matter has once been passed upon and finally disposed of by the head of a department, it should not be disturbed or reopened by his successors, excepting under extraordinary circumstances, such as the discovery of new facts, and the like. (1882) 17 Op. Atty. Gen. 315. The fact that an application for reexamination of a matter disposed of had been made to and had not been acted upon by the head of the department by whom the decision was rendered does not withdraw the case from the operation of the rule. Id. The Postmaster General is not bound by the construction placed by a predecessor in office on the statute relating to second-class matter, so as to preclude him from revoking a certificate of entry of a publication as second-class matter, which had been issued by such predecessor, where no vested right has been created by such certificate. Columbian Correspondence College v. Wynne (1905) 25 App. D. C. 149. Acts of heads of departments conclusive on other departments of the government. A finding of land officers in proceedings resulting in the issuance of patents on commuted homestead entries, that such lands were agricultural and not coal lands, is not conclusive against the government in a suit to cancel the patents as fraudulently procured by misrepresenting their character. Washington Securities Co. v. United States (1914) 34 Sup. Ct. 725, 234 U. S. 76, 58 L. Ed. 1220, affirming decree (1912) 194 Fed. 59, 114 C. C. A. 79. The executive departments have not a judicial, nor even a quasi judicial, character. Their acts are not judicial, and are binding on executive officers, but not on the courts. Alire v. U. S. (1865) 1 Ct. Cl. 233. The position of head of the War Department involves the highest responsibilities, and constantly calls for the exercise of the soundest judgment and discretion; and where such judgment and discretion are exercised, in respect to any purely executive function appropriate to that department, every other department of the government is bound by the action. It is conclusive. Peirce v. U. S. (1865) 1 Ct. Cl. 270, 279. But the Secretary of War has no general or unlimited power to bind the government by accepting or indorsing negotiable paper. Peirce v. U. S. (1865) 1 Ct. Cl. 270. Usage cannot aid such a transaction. An illegal practice prevailing among officers of the government, no matter how long continued or extensive, can never ripen into a binding usage. Id. The decision of the head of a department, directing payment of a particular claim, is binding upon all the subordinate officers by whom the account is to be audited and passed. (1849) 5 Op. Atty. Gen. 87. The President ought not, as a general rule, to entertain an appeal from the decision of the head of a department respecting a private claim against the government. (1863) 10 Op. Atty. Gen. 526. Liabilities of heads of departments for official acts.-The act of the head of one of the departments in calling the attention of any person having business with such department to a statute relating in any way to such business, cannot be made the foundation of an action against such officer. Spalding v. Vilas (1896) 16 Sup. Ct. 631, 635, 161 U. S. 483, 40 L. Ed. 780. The head of a department cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority, by reason of any personal motive that prompted his action, for personal motives cannot be imputed to duly authorized official conduct. Spalding v. Vilas (1896) 16 Sup. Ct. 631, 637, 161 U. S. 483, 40 L. Ed. 780. § 233. (R. S. § 159.) Word "Department.' 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. The Department of Agriculture was included in this definition by Act Feb. 9, 1889, c. 122, § 1, post, § 789. The Department of Commerce was included in this definition by Act Feb. 14, 1903, c. 552, § 1, post, § 853. The Department of Labor was included in this definition by Act March 4, 1913, c. 141, § 1, post, § 932. Notes of Decisions Meaning of term "department," as used in statutes generally.-The term "department," as used in acts of Con gress and in the Revised Statutes, invariably applies to one or more of the several executive departments men tioned in R. S. § 158, ante, § 232, or included within the terms of that section by subsequent enactments, unless a different meaning is clearly indicated by the context. (1907) 26 Op. Atty. Gen. 209. The term "department," as used in laws relating to the civil service, is distinguished from "office," "bureau," and "branch;" and subordinates of the several executive departments are distinguished from employés of the lastmentioned governmental agencies. Id. § 234. (R. S. § 160.) Salaries of heads of Departments. Each head of a Department is entitled to a salary of [ten thousand dollars] a year, to be paid monthly. Act March 3, 1873, c. 226, § 1, 17 Stat. 486. The salaries of the heads of Departments, having been increased from $8,000 to $10,000 by provisions of Act March 3, 1873, c. 226, § 1, incorporated into this section of the Revised Statutes, and cited above, were reduced to $8,000, and the words of this section inclosed in brackets, "ten thousand dollars," were superseded by the repeal of so much of that act as increased their compensation, by Act Jan. 20, 1874, c. 11, 18 Stat. 4. The salary of the Secretary of the Treasury was declared to be $8,000 in the provisions of the sundry civil appropriation act for the fiscal year 1876, prescribing the organization of the Treasury Department and the offices thereof, and the salaries to be paid to the persons therein, Act March 3, 1875, c. 130, § 2, post, § 352. The Secretary of Agriculture receives the same salary as is paid to the secretary of each of the Executive Departments, by section 3 of the act making that Department an Executive Department, Act Feb. 9, 1889, c. 122, § 3, post, § 791. The Secretary of Commerce was to receive a salary of $8,000 per annum, by section 1 of the act establishing the Department of Commerce, Act Feb. 14, 1903, c. 552, § 1, post, § 853. But the compensation of the heads of Executive Departments who are members of the President's cabinet, on and after March 4, 1907, was increased to $12,000 per annum by Act Feb. 26, 1907, c. 1635, § 4, ante, § 36. Said section 4 of Act Feb. 26, 1907, c. 1635, in so far as it related to the annual compensation of the Secretary of State, was repealed, and his annual compensation was again made $8,000, by Act Feb. 17, 1909, c. 137, § 1, post, § 285, and Act March 4, 1909, c. 297, § 1, post, § 287. But the appropriations for the Secretary of State for the fiscal year 1912 and subsequent years were $12,000. The provision for the fiscal year 1917 was by Act May 10, 1916. c. 117, § 1, 39 Stat. The Secretary of Labor receives a salary of $12,000 per annum, by section 1 of the act establishing the Department of Labor, Act March 4, 1913, c. 141, § 1, post, § 932. All laws or parts of laws inconsistent with rates of salaries or compensation appropriated by the legislative, executive, and judicial appropriation acts are repealed, and the rates of salaries or compensation of officers or employés appropriated for in said acts are to constitute the rate of salary or compensation of such officers or employés, respectively, until otherwise fixed by an annual rate of appropriation or other law, by Act July 16, 1914, c. 141, § 6, post, § 3228a. The officers and employés of the United States whose salaries are appropriated for in the legislative, executive, and judicial appropriation act for the fiscal year 1916, Act March 4, 1915, c. 141, 38 Stat. 1049, are established and continued from year to year to the extent that they are appropriated for by Congress, by § 6 of said act, post, § 3228b. Unless otherwise specially authorized by law, no money appropriated by any act shall be available for payment to any person receiving more than one salary, when the combined amount of said salaries exceeds $2,000 per annum, with certain enumerated exceptions, by Act May 10, 1916, c. 117, § 6, as amended by Act Aug. 29, 1916, c. 417, post, § 3230a. § 235. (R. S. § 161.) Departmental regulations. The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. Act July 27, 1789, c. 4, 1 Stat. 28. Act Sept. 15, 1789, c. 14, 1 Stat. 68. Act Aug. 7, 1789, c. 7, 1 Stat. 49. Act Sept. 2, 1789, c. 12, 1 Stat. 65. Act June 8, 1872, c. 335, 17 Stat. 283. Act April 30, 1798, c. 35, 1 Stat. 553. Act June 22, 1870, c. 150, § 8, 16 Stat. 163. Act March 3, 1849, c. 108, 9 Stat. 395. Provisions authorizing each head of a Department to alter the distribution 1. 2. of clerks among the various bureaus and offices, and to reduce the force employed, were made by R. S. § 166, post, § 244, and Act Aug. 15, 1876, c. 287, 3, post, § 245. Heads of Departments were required to make and enforce regulations to carry out the provisions of Act March 29, 1894, c. 49, relating to the making of returns of public property, by section 4 of that act, post, § 442. Heads of Departments were also required to make regulations to secure an administrative examination of accounts, before transmission to the Auditors of the Treasury, as provided by the Dockery Act of July 31, 1894, c. 174, § 12, post, § 428, and for the execution of other requirements of that act, by section 22 of the act, post, § 437. Appropriations to enable the President, by the employment of accountants and experts from official and private life, to more effectively inquire into the methods of transacting the public business of the Government in the executive departments and other executive government establishments, with the view of inaugurating new or changing old methods of transacting such public business so as to attain greater efficiency and economy therein, and to ascertain and recommend to Congress what changes in law may be necessary to carry into effect such results of his inquiry as can not be carried into effect by executive action alone, were made by the sundry civil appropriation acts for recent fiscal years. The provision for the fiscal year 1913 was by Act Aug. 24, 1912, c. 355, § 1, 37 Stat. 417. Notes of Decisions Making and requisites of regulations. Regulations not to be inconsistent with law. 3. Implied legislative ratification. 4. Regulations for government of department, conduct of officers, etc. 5. Regulations for carrying out particular laws. 6. Custody, use, etc., of property. Preservation of records, etc. 7. 8. Protection from disclosure as evidence of records or of facts known officially. 9. Force and effect of regulations as law. 10. Judicial notice of regulations. 11. Violations of regulations. 1. Making and requisites of regulations.-Usages have been established in every part of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. U. S. v. Macdaniel (1833) 7 Pet. 1, 14, 8 L. Ed. 587. See Benson v. Henkel (1905) 25 Sup. Ct. 569, 571, 198 U. S. 1, 49 L. Ed. 919. A decision of a department in a particular case, being the opinion of the secretary upon the law and regulations as they existed, is not in any sense a regulation under this section, and, though entitled to great respect and consideration by the Supreme Court, is not binding on the court as a valid regulation of the department. Smith v. U. S. (1898) 18 Sup. Ct. 626, 629, 170 U. S. 372, 380, 42 L. Ed. 1074. Regulations for government of a department need not be promulgated in any set form, nor in writing. Haas v. Henkel (1910) 30 Sup. Ct. 249, 254, 216 U. S. 462, 54 L. Ed. 569, 17 Ann. Cas. 1112. The requirement by the department under whose authority an officer is acting, such as will make his action official, need not be prescribed by written rule or regulation. It may also be found in an established usage which constitutes the common law of the department, and fixes the duties of those engaged in its activities. In numerous instances, duties not completely defined by written rules are clearly established by settled practice. U. S. v. Birdsall (1914) 34 Sup. Ct. 512, 514, 233 U. S. 223, 58 L. Ed. 930. A "regulation of an executive department" is a rule made by the head of the department for its action, under an act of Congress conferring power so to do. An order of the President or of a secretary of a department is not such a regulation. Harvey v. U. S. (1867) 3 Ct. Cl. 38. 2. Regulations not to be inconsistent with law. The head of an executive department is limited in what he does by the law; but he need not show express statutory authority for an administrative detail incident to a power conferred. U. S. v. Macdaniel (1833) 7 Pet. 1, 14, 8 L. Ed. 587; Small v. U. S. (1909) 45 Ct. Cl. 13; (1911) 28 Op. Atty. Gen. 549. A regulation adopted under this section should not be disregarded or annulled by the courts unless it is plainly and palpably inconsistent with law. Boske v. Comingore (1900) 20 Sup. Ct. 701, 706, 177 U. S. 459, 44 L. Ed. 846. A regulation of an executive department must conform to the law, if a law exists upon the subject of the regulation. Symonds v. U. S. (1886) 21 Ct. Cl. 148. A departmental regulation contrary to law is no regulation. Sherlock v. U. S. (1908) 43 Ct. Cl. 161. The Secretary of the Treasury cannot legally, by departmental order, change a practice or course of office procedure prescribed by statute for the settlement of accounts. (1888) 19 Op. Atty. Gen. 176. A regulation may supplement a statute, but cannot supersede it. Roberts v. U. S. (1909) 44 Ct. Cl. 411. 3. Implied legislative ratification.When Congress permit the orders of an executive department to be formulated as regulations, and published, and carried into effect, the legislative ratification must be implied. Maddux v. U. S. (1885) 20 Ct. Cl. 193, 197. Treasury regulations having been in force for a number of years and in operation in every port of the United States except one, and having received the tacit. if not express, approval of Congress, the court will not disregard them and hold that they are not authorized by law. Garlinger v. U. S. (1895) 30 Ct. Cl. 473. 4. Regulations for government of department, conduct of officers, etc.-The power conferred by this section is administrative only. It does not justify any additions to the requirements of R. S. § 2291, post, § 4532, as to proof by a homestead entryman of cultivation and residence by two credible witnesses. U. S. v. George (1913) 33 Sup. Ct. 412, 414, 228 U. S. 14, 57 L. Ed. 712. Under Act July 12, 1876, § 5, post, § 7189, dividing postmasters into four classes, and defining the second class as including all those whose annual salaries are between $2,000 and $3,000, and Act March 3, 1883, § 1, post, § 7217, providing that the respective compensation of postmasters of the first, second, and third classes shall be annual salaries assigned in even hundreds of dollars, to be ascertained and fixed from their respective quarterly returns to the auditor at the rates therein specified, which are based on the gross receipts, the Postmaster General had no authority to make a regulation, pursuant to this section, that, in determining the gross receipts for the purpose of fixing a postmaster's salary, unusual sales of stamps should not be included, and that a statement of such sales should not be made to the auditor, but to the First Assistant Postmaster General, since the regulation was not an attempt to define "gross receipts" nor to clear up an ambiguity in the statute or supply details, but in effect made salaries dependent, not upon gross receipts returned to the auditor as provided by statute, but upon such part of such gross receipts as, in the opinion of some departmental official, was not unusual, or for use outside the district. U. S. v. Foster (D. C. 1913) 211 Fed. 206. That the validity of a regulation by the Postmaster General was unques. tioned for a long time was of little force in determining its validity, where the only persons directly affected thereby were subordinate office holders, who would be very reluctant to attack the validity of a regulation made by their superior officer. Id. The treasury regulations; prescribing the duties and watches of night inspectors, have the force of law and regulate the service and hours of service. Garlinger v. U. S. (1895) 30 Ct. Cl. 208. Rights, duties, and obligations defined by statute cannot be taken away or abridged by regulations of department. Laurey v. U. S. (1897) 32 Ct. Cl. 259, 265. The Secretary of the Treasury had power, under this section, to make a regulation that the oaths to be taken by an officer of the Revenue Marine Service, or an officer or employé in any branch of the customs service, to the correctness of his account for pay or salary, as required by R. S. § 1790, post, § 3265, and section 2693, should be taken before some person authorized to administer oaths generally. (1889) 19 Op. Atty. Gen. 401. A head of a department has, under the powers conferred by this section, the right to say what the officers and clerks under him shall do or not do, so long as he does not go counter to any law. (1889) 19 Op. Atty. Gen. 401, 403. Chiefs of division, in the Department of Agriculture, in charge of the several divisions of natural science which are employed in accomplishing the objects of that department, are subject to all regulations prescribed in accordance with law by the head of the department. (1894) 20 Op. Atty. Gen. 703. Under the authority to prescribe regulations given by this section, there seems to be no limitation to the right of the head of a department to demand service of his subordinates. (1894) 20 Op. Atty. Gen. 728, 729. It was not "inconsistent with law," within this section, for the head of the Department of Commerce and Labor, in organizing that department upon its creation, to change the names of officers assigned to the department. (1903) 24 Op. Atty. Gen. 697, 698. The Secretary of Commerce and Labor was not authorized by law to consolidate the Bureau of Manufactures and the Bureau of Statistics into one bureau called the Bureau of Foreign and Domestic Commerce. Op. Atty. Gen. 542. (1909) 27 The duties previously performed by the disbursing clerk of the Bureau of the Census could not be transferred to the disbursing clerk of the Department of Commerce and Labor, consistently with law, within the meaning of this section. (1911) 29 Op. Atty. Gen. 247. 5. Regulations for carrying out particular laws.-The head of a department, authorized to make regulations in aid of the law, cannot make regulations which defeat the law. Morrill v. Jones (1882) 1 Sup. Ct. 423, 106 U. S. 466, 27 L. Ed. 267; Campbell v. U. S. (1882) 2 Sup. Ct. 759, 107 U. S. 407, 27 L. Ed. 592; Williamson v. U. S. (1908) 28 Sup. Ct. 163, 207 U. S. 425, 52 L. Ed. 278; Bong v. Alfred S. Campbell Art Co. (1909) 29 Sup. Ct. 628, 631, 214 U. S. 236, 53 L. Ed. 979, 16 Ann. Cas. 1126. The Secretary of the Treasury cannot by his regulations alter or amend a revenue law. All he can do is to regu late the mode of proceeding to carry into effect what Congress has enacted. Morrill v. Jones (1882) 1 Sup. Ct. 423, 106 U. S. 466, 27 L. Ed. 267. The authority of a postmaster general under this section to make regulations for the government of the department includes power to prescribe that, in determining the gross receipts of a post office on which the salary of the postmaster is to be fixed, stamps sold in unusual quantities for other offices shall not be considered. U. S. v. Foster (1914) 34 Sup. Ct. 666, 233 U. S. 515, 58 L. Ed. 1074, reversing judgment (D. C. 1913) 211 Fed. 206. Postmaster General held authorized, under this section, to limit number of sample copies mailed as second-class matter to amount of publisher's legitimate subscriptions. Lewis Pub. Co. v. Wyman (1910) 182 Fed. 13, 16, 104 C. C. A. 453, affirmed (1910) 33 Sup. Ct. 599, 228 U. S. 610, 57 L. Ed. 989. A regulation of an executive officer or department under legislative authority to make rules to enforce an act of Congress, which subjects classes of property to forfeiture and classes of persons to penalties that are excluded by the statute, is void. U. S. v. Eleven Thousand One Hundred and Fifty Pounds of Butter (1912) 195 Fed. 657, 115 C. C. A. 463, affirming judgment (D. C. 1911) 188 Fed. 157. The secretary of the treasury is not authorized to impose, by regulations, burdens on commerce not imposed or authorized by the statute. Siegfried v. Phelps (C. C. 1889) 40 Fed. 660, 661, reversed (1892) 12 Sup. Ct. 391, 142 U. S. 602, 35 L. Ed. 1128. 6. Custody, use, etc., of property.This section, and R. S. § 217, post, § 319, do not authorize the granting of licenses for the occupation of parts of military reservations for the erection of hotels, church edifices, etc. (1897) 21 Op. Atty. Gen. 537. 7. Preservation of records, etc.-A regulation of the Treasury Department declaring that all records in the offices of collectors of internal revenue, or any of their deputies, are in their custody and control for purposes relating to the collection of the revenues only, and that collectors have no control of them, and no discretion with regard to permitting the use of them for any other purpose, is within the power conferred by this section, and is not inconsistent with law. Boske v. Comingore (1900) 20 Sup. Ct. 701, 705, 177 U. S. 459, 44 L. Ed. 846; In re Weeks (D. C. 1897) 82 Fed. 729; In re Comingore (D. C. 1899) 96 Fed. 552, 559; In re Lamberton (D. C. 1903) 124 Fed. 446. And see In re Hirsch (C. C. 1896) 74 Fed. 928, affirmed (1898) 87 Fed. 1005, 31 C. C. A. 350. The head of a department may take from a subordinate all discretion as to permitting the records in his custody to be used for any other purposes than the collection of the revenue, and reserve for his own determination all matters of that character. Boske v. Comingore (1900) 20 Sup. Ct. 701, 706, 177 U. S. 459, 44 L. Ed. 846. Papers filed in the proper accounting office of the treasury as vouchers and documents for settlement of a public account, cannot be taken from such office by replevin. Brent v. Hagner (C. C. 1836) Fed. Cas. No. 1,839, 5 Cranch C. C. 71. The archives of a department are not in the possession of the head of the department or chief of a bureau, but in the possession of the United States, and papers cannot be taken therefrom, by replevin against such officer, on a claim of them as private property. (1853) 6 Op. Atty. Gen. 7. 8. Protection from disclosure as evidence of records or of facts known officially.-Treasury regulations prohibiting a collector of internal revenue from producing his office records, or copies thereof, in a state court, are valid, and such court cannot punish him for obeying such regulations. Boske v. Comingore (1900) 20 Sup. Ct. 701, 706, 177 U. S. 459, 44 L. Ed. 846, affirming In re Comingore (D. C. 1899) 96 Fed. 552, 559; In re Huttman (D. C. 1895) 70 Fed. 699, 701; In re Weeks (D. C. 1897) 82 Fed. 729; In re Lamberton (D. C. 1903) 124 Fed. 446. A storekeeper and gauger of the internal revenue department cannot be compelled by a state court to testify as to matters which he is prohibited from divulging by the regulations of the department. Stegall v. Thurman (D. C. 1910) 175 Fed. 813, 816. But see In re Hirsch (C. C. 1896) 74 Fed. 928, 932, affirmed (1898) 87 Fed. 1005, 31 C. C. A. 350. Official communications on subjects of a confidential nature are privileged from production as evidence in suits between private persons. (1877) 15 Op. Atty. Gen. 378, 415; (1878) 16 Op. Atty. Gen. 24. Where the disclosure of facts stated, etc., in communications which are not privileged, as made in the course of official and public duties, would, in the judgment of the head of the department, be attended with serious damage to the public interest, the department would be justified in representing to the court that, upon public considerations, it declined to furnish such communications. (1877) 15 Op. Atty. Gen. 415, 416. Recommendations for office and objections to appointments, filed by parties for their own convenience, and permitted to be withdrawn when desired, are not records or papers required by this section to be kept by the departments in which they are deposited; and they should not be submitted to examination by a representative of a newspaper with a view of establishing that improper persons have been rec |