A-16787, APRIL 8, 1927, 6 COMP. GEN. 657

A-16787, APRIL 8, 1927, 6 COMP. GEN. 657

APPOINTMENTS - OFFICERS - AFFIDAVITS AN ASSISTANT UNITED STATES ATTORNEY APPOINTED BY THE ATTORNEY GENERAL IS AN OFFICER APPOINTED BY THE HEAD OF AN ADMINISTRATIVE DEPARTMENT WITHIN THE PURVIEW OF THE ACT OF DECEMBER 11, 1926, 44 STAT. 918, AND MUST FILE THE AFFIDAVIT REQUIRED BY SAID ACT BEFORE BECOMING ENTITLED TO ANY COMPENSATION UNDER HIS APPOINTMENT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, APRIL 8, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 21, 1927, REQUESTING DECISION WHETHER ASSISTANT UNITED STATES ATTORNEYS APPOINTED BY THE ATTORNEY GENERAL TO ASSIST DISTRICT ATTORNEYS IN THEIR OFFICIAL DUTIES ARE REQUIRED TO FURNISH THE AFFIDAVIT SPECIFIED IN THE ACT OF DECEMBER 11, 1926, 44 STAT. 918, AS AMENDED BY JOINT RESOLUTION OF MARCH 2, 1927. UNDER THE PROVISION IN QUESTION THE OATH IS REQUIRED OF EACH INDIVIDUAL APPOINTED AS A CIVIL OFFICER OF THE UNITED STATES BY THE HEAD OF A DEPARTMENT.

THE APPOINTMENTS OF ASSISTANT UNITED STATES ATTORNEYS ARE MADE PURSUANT TO SECTION 8 OF THE ACT OF MAY 28, 1896, 29 STAT. 181, WHICH PROVIDES:

THAT WHENEVER * * * THE PUBLIC INTEREST REQUIRES IT, ONE OR MORE ASSISTANT DISTRICT ATTORNEYS MAY BE APPOINTED, BY THE ATTORNEY GENERAL * * *.SUCH ASSISTANT DISTRICT ATTORNEYS SHALL BE PAID SUCH SALARY AS THE ATTORNEY GENERAL MAY FROM TIME TO TIME DETERMINE AS TO EACH, * * *.

IT CLEARLY APPEARS FROM THE FOREGOING THAT THE APPOINTMENTS OF ASSISTANT UNITED STATES ATTORNEYS ARE BY LAW VESTED IN THE ATTORNEY GENERAL. THEY ARE, THEREFORE, APPOINTED "BY THE HEAD OF A DEPARTMENT" WITHIN THE MEANING OF THE ACT OF DECEMBER 11, 1926, SUPRA. WHILE IT IS TRUE, AS STATED IN 1 COMP. DEC. 184, THAT ASSISTANT UNITED STATES ATTORNEYS ARE APPOINTED TO ASSIST DISTRICT ATTORNEYS IN THE PERFORMANCE OF THEIR DUTIES, IT IS UNDERSTOOD THAT THEIR ASSISTANCE CONSISTS IN THE PERFORMANCE OF DUTIES OTHERWISE DEVOLVING UPON THE DISTRICT ATTORNEY AND WHICH HE IS UNABLE TO HANDLE DUE TO THE VOLUME OF BUSINESS, AND THAT, IN THE PERFORMANCE OF SUCH DUTIES AS MAY BE ASSIGNED TO HIM, THE ASSISTANT UNITED STATES ATTORNEY ACTS ON HIS OWN RESPONSIBILITY, SIGNS OFFICIAL PAPERS IN HIS OWN NAME, ETC. ACCORDINGLY, IT MUST BE HELD THAT SUCH OFFICERS ARE VESTED BY LAW WITH AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY AND ARE, THEREFORE,"OFFICERS" WITHIN THE DEFINITION OF THAT TERM IN GENERAL REGULATIONS NO. 62. SEE DECISION OF JANUARY 15, 1927, TO THE INTERSTATE COMMERCE COMMISSION RELATIVE TO ASSISTANT CHIEF INSPECTORS OF LOCOMOTIVE BOILERS.

ANSWERING YOUR QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT ASSISTANT UNITED STATES ATTORNEYS APPOINTED AFTER DECEMBER 11, 1926, ARE REQUIRED BY THE ACT OF SAID DATE TO MAKE AND FILE THE OATH PRESCRIBED THEREIN.