A-12027, AUGUST 16, 1926, 6 COMP. GEN. 112

A-12027: Aug 16, 1926

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UNITED STATES AND MEXICO THE COMMISSIONERS AND THE JOINT EMPLOYEES OF THE GOVERNMENTS OF THE UNITED STATES AND MEXICO ON THE MIXED CLAIMS COMMISSION OF THOSE TWO COUNTRIES ARE NOT REQUIRED TO TAKE THE OATH OF OFFICE UNDER SECTION 1757. THE AGENTS AND COUNSEL REPRESENTING THE UNITED STATES UNDER ARTICLE IV OF THE TREATY ARE "APPOINTED TO AN OFFICE" AND MUST TAKE THE OATH PRESCRIBED BY SECTION 1757. THE ADDITIONAL EMPLOYEES OF THE AGENCY OF THE UNITED STATES WHOSE APPOINTMENTS ARE NOT REQUIRED TO BE MADE BY THE PRESIDENT. OR THE HEADS OF DEPARTMENTS ARE NOT OFFICERS OF THE UNITED STATES AND AS A MATTER OF LAW ARE NOT REQUIRED TO TAKE THE OATH OF OFFICE. ALTHOUGH IT IS DESIRABLE THAT THEY SHOULD DO SO.

A-12027, AUGUST 16, 1926, 6 COMP. GEN. 112

OATH OF OFFICE - MIXED CLAIMS COMMISSION, UNITED STATES AND MEXICO THE COMMISSIONERS AND THE JOINT EMPLOYEES OF THE GOVERNMENTS OF THE UNITED STATES AND MEXICO ON THE MIXED CLAIMS COMMISSION OF THOSE TWO COUNTRIES ARE NOT REQUIRED TO TAKE THE OATH OF OFFICE UNDER SECTION 1757, REVISED STATUTES. THE AGENTS AND COUNSEL REPRESENTING THE UNITED STATES UNDER ARTICLE IV OF THE TREATY ARE "APPOINTED TO AN OFFICE" AND MUST TAKE THE OATH PRESCRIBED BY SECTION 1757, REVISED STATUTES. THE ADDITIONAL EMPLOYEES OF THE AGENCY OF THE UNITED STATES WHOSE APPOINTMENTS ARE NOT REQUIRED TO BE MADE BY THE PRESIDENT, THE COURTS OF LAW, OR THE HEADS OF DEPARTMENTS ARE NOT OFFICERS OF THE UNITED STATES AND AS A MATTER OF LAW ARE NOT REQUIRED TO TAKE THE OATH OF OFFICE, ALTHOUGH IT IS DESIRABLE THAT THEY SHOULD DO SO.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 16, 1926:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER MEMBERS OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND MEXICO, AND OFFICERS AND EMPLOYEES OF THE COMMISSION AND OF THE AGENCY OF THE UNITED STATES APPOINTED FOR SERVICE IN CONNECTION WITH THAT COMMISSION, SHOULD BE REQUIRED TO TAKE AN OATH OF OFFICE IN ORDER TO BE ENTITLED TO THE COMPENSATION FOR THE PERFORMANCE OF THEIR RESPECTIVE DUTIES.

THIS COMMISSION WAS ESTABLISHED BY TREATY OR CONVENTION BETWEEN THE UNITED STATES AND MEXICO PROMULGATED BY PROCLAMATION OF THE PRESIDENT SEPTEMBER 10, 1923, 43 STAT. 1722, WHICH TREATY PROVIDED:

ARTICLE I

SUCH COMMISSION SHALL BE CONSTITUTED AS FOLLOWS: ONE MEMBER SHALL BE APPOINTED BY THE PRESIDENT OF THE UNITED STATES; ONE BY THE PRESIDENT OF THE UNITED MEXICAN STATES; AND THE THIRD, WHO SHALL PRESIDE OVER THE COMMISSION, SHALL BE SELECTED BY MUTUAL AGREEMENT BETWEEN THE TWO GOVERNMENTS. * * *

ARTICLE II

THE COMMISSIONERS SO NAMED SHALL MEET AT MEXICO CITY WITHIN SIX MONTHS AFTER THE EXCHANGE OF RATIFICATIONS OF THIS CONVENTION, AND EACH MEMBER OF THE COMMISSION, BEFORE ENTERING UPON HIS DUTIES, SHALL MAKE AND SUBSCRIBE A SOLEMN DECLARATION STATING THAT HE WILL CAREFULLY AND IMPARTIALLY EXAMINE AND DECIDE, ACCORDING TO THE BEST OF HIS JUDGMENT AND IN ACCORDANCE WITH THE PRINCIPLES OF JUSTICE AND EQUITY, ALL CLAIMS PRESENTED FOR DECISION, AND SUCH DECLARATION SHALL BE ENTERED UPON THE RECORD OF THE PROCEEDINGS OF THE COMMISSION.

ARTICLE IV

EACH GOVERNMENT MAY NOMINATE AND APPOINT AGENTS AND COUNSEL WHO WILL BE AUTHORIZED TO PRESENT TO THE COMMISSION, ORALLY OR IN WRITING, ALL THE ARGUMENTS DEEMED EXPEDIENT IN FAVOR OF OR AGAINST ANY CLAIM. * * *

ARTICLE V

THE COMMISSION SHALL KEEP AN ACCURATE RECORD OF THE CLAIMS AND CASES SUBMITTED, AND MINUTES OF ITS PROCEEDINGS WITH THE DATES THEREOF. TO THIS END, EACH GOVERNMENT MAY APPOINT A SECRETARY; THESE SECRETARIES SHALL ACT AS JOINT SECRETARIES OF THE COMMISSION AND SHALL BE SUBJECT TO ITS INSTRUCTIONS. EACH GOVERNMENT MAY ALSO APPOINT AND EMPLOY ANY NECESSARY ASSISTANT SECRETARIES AND SUCH OTHER ASSISTANCE AS DEEMED NECESSARY. THE COMMISSION MAY ALSO APPOINT AND EMPLOY ANY PERSONS NECESSARY TO ASSIST IN THE PERFORMANCE OF ITS DUTIES.

WITH RESPECT TO THE COMMISSIONERS THEMSELVES THEY ARE NOT REQUIRED TO TAKE THE OATH ORDINARILY REQUIRED OF OFFICERS OF THE UNITED STATES BY SECTION 1757, REVISED STATUTES. ANY DOUBT ON THIS POINT IS REMOVED BY THE PROVISION IN ARTICLE II OF THE TREATY PRESCRIBING THE FORM OF DECLARATION WHICH THEY WILL BE REQUIRED TO MAKE. THE SECRETARIES, ASSISTANT SECRETARIES, AND OTHER ASSISTANTS APPOINTED UNDER ARTICLE V OF THE TREATY, EITHER BY THE RESPECTIVE GOVERNMENTS OR BY THE COMMISSION ITSELF, CAN NOT BE CONSIDERED AS OFFICERS OR EMPLOYEES OR EITHER GOVERNMENT, BEING RATHER OFFICERS OR EMPLOYEES OF THE TWO GOVERNMENTS JOINTLY, AND COULD NOT, THEREFORE, BE REQUIRED TO TAKE THE OATH OF OFFICE REQUIRED OF OFFICERS AND EMPLOYEES OF THE UNITED STATES.

THERE IS A THIRD CLASS OF OFFICERS OR EMPLOYEES AUTHORIZED BY THE TREATY, ARTICLE IV; THAT IS, AGENTS AND COUNSEL APPOINTED BY THE RESPECTIVE GOVERNMENTS TO PRESENT THE ARGUMENTS FOR AND AGAINST THE VARIOUS CLAIMS SUBMITTED. SECTION 1757, REVISED STATUTES, AND THE ACT OF MAY 13, 1884, 23 STAT. 22, REQUIRE AN OATH OF OFFICE TO BE EXECUTED BY "ANY PERSON ELECTED OR APPOINTED TO ANY OFFICE OF HONOR OR PROFIT.' THE ACT OF AUGUST 6, 1861, 12 STAT. 326, REQUIRED AN OATH BY "EACH AND EVERY OFFICER, CLERK, OR EMPLOYEE," BUT THIS PROVISION WAS NOT CARRIED INTO THE REVISED STATUTES AND WAS ACCORDINGLY REPEALED THEREBY, LEAVING THE REQUIREMENTS FOR OATHS LIMITED TO PERSONS "ELECTED OR APPOINTED" TO ANY OFFICE OF HONOR, OR TRUST, OR PROFIT. THIS REQUIREMENT IS CONFINED TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE; I.E., OFFICERS WHOSE APPOINTMENT IS VESTED BY LAW IN THE PRESIDENT OF THE UNITED STATES, THE COURTS OF LAW, OR THE HEADS OF THE DEPARTMENTS. 1 COMP. DEC. 540; 4 ID. 92. SEE ALSO UNITED STATES V. HARTWELL, 6 WALL. 385; UNITED STATES V. GERMAINE, 99 U.S. 509; UNITED STATES V. MOUAT, 124 U.S. 303.

THE APPOINTMENT OF AGENTS AND COUNSEL UNDER ARTICLE IV OF THE TREATY IS VESTED IN THE RESPECTIVE GOVERNMENTS AND SUCH AGENTS AND COUNSEL ARE ACCORDINGLY OFFICERS OR PERSONS "ELECTED OR APPOINTED" TO AN OFFICE WITHIN THE PURVIEW OF SECTION 1757, REVISED STATUTES, AND THE ACT OF MAY 13, 1884, 23 STAT. 22, AND MUST BE REQUIRED TO TAKE THE OATH OF OFFICE IN THE FORM PRESCRIBED BY SAID SECTION 1757.

THE TREATY DOES NOT SPECIFICALLY PROVIDE FOR THE APPOINTMENT OF EMPLOYEES OF THE AGENCY OF THE UNITED STATES (AS DISTINGUISHED FROM JOINT EMPLOYEES OF THE COMMISSION) OTHER THAN THE AGENTS AND COUNSEL, AND THE AUTHORITY FOR THE EMPLOYMENT OF SUCH ADDITIONAL ASSISTANTS IS DERIVED FROM THE APPROPRIATION FOR THE EXPENSES OF THE AGENCY OF THE UNITED STATES, ACT OF FEBRUARY 27, 1925, 43 STAT. 1024, WHICH CONTAINS A PROVISION FOR "EXPENSES OF AN AGENCY OF THE UNITED STATES * * * INCLUDING SALARIES OF AN AGENT AND NECESSARY COUNSEL AND OTHER ASSISTANTS AND EMPLOYEES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE.' SUCH "OTHER ASSISTANTS AND EMPLOYEES" THEREFORE NOT BEING REQUIRED BY ANY LAW TO BE APPOINTED BY THE PRESIDENT, OR A COURT OF LAW, OR THE HEAD OF A DEPARTMENT, ARE NOT OFFICERS OF THE UNITED STATES WITHIN THE CONSTITUTIONAL SENSE AND ARE NOT, AS A MATTER OF LAW, REQUIRED TO TAKE AN OATH OF OFFICE, ALTHOUGH IT IS HIGHLY DESIRABLE THAT THEY BE REQUIRED TO DO SO AS A MATTER OF PUBLIC POLICY. 4 COMP. DEC. 92-95; REVIEW 3917, APRIL 23, 1923; 21 OP.ATTY.GEN. 507.

PAST PAYMENTS TO THE AGENTS AND COUNSEL AND OTHER ASSISTANTS AND EMPLOYEES WILL NOT BE DISTURBED BUT IT WILL BE NECESSARY TO DISALLOW ALL COMPENSATION TO SUCH OFFICERS AND EMPLOYEES ACCRUING AFTER SEPTEMBER 1, 1926, UNLESS AND UNTIL THE PRESCRIBED OATH OF OFFICE HAS BEEN TAKEN.