A-14910, JUNE 30, 1926, 5 COMP. GEN. 1043

A-14910: Jun 30, 1926

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LABOR OF THE GOVERNMENT OF THE VIRGIN ISLANDS IS A PUBLIC OFFICE WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MAY 21. 1926: I HAVE YOUR LETTER OF JUNE 24. IS A PUBLIC OFFICE WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MAY 21. WHO IS A BRITISH SUBJECT. WILL BE PROHIBITED BY SAID PROVISION. THE PROVISION IN QUESTION IS AS FOLLOWS: TEMPORARY GOVERNMENT FOR WEST INDIAN ISLANDS. 393) AN OFFICE IS DEFINED AS FOLLOWS: AN OFFICE IS A PUBLIC STATION. WAS HELD TO BE A PUBLIC OFFICER WITHIN THE MEANING OF THE ACT OF AUGUST 6. THE COURT SAID: THE EMPLOYMENT OF THE DEFENDANT WAS IN THE PUBLIC SERVICE OF THE UNITED STATES. HE WAS APPOINTED PURSUANT TO LAW. HIS COMPENSATION WAS FIXED BY LAW.

A-14910, JUNE 30, 1926, 5 COMP. GEN. 1043

VIRGIN ISLANDS - PUBLIC OFFICERS THE OFFICE OF CHIEF CLERK OF THE DEPARTMENT OF AGRICULTURE, COMMERCE, AND LABOR OF THE GOVERNMENT OF THE VIRGIN ISLANDS IS A PUBLIC OFFICE WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MAY 21, 1926, 44 STAT. 594, WHICH PROHIBITS PAYMENT FROM THE APPROPRIATION MADE FOR EXPENSES OF THE GOVERNMENT OF THE VIRGIN ISLANDS TO ANYONE HOLDING PUBLIC OFFICE UNDER THE GOVERNMENT OF SAID ISLANDS WHO OWES ALLEGIANCE TO ANY COUNTRY OTHER THAN THE UNITED STATES OF AMERICA.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 30, 1926:

I HAVE YOUR LETTER OF JUNE 24, 1926, REQUESTING DECISION WHETHER THE POSITION OF CHIEF CLERK IN THE DEPARTMENT OF AGRICULTURE, COMMERCE, AND LABOR, AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT OF THE VIRGIN ISLANDS, IS A PUBLIC OFFICE WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MAY 21, 1926, 44 STAT. 594, HEREINAFTER QUOTED, SO THAT PAYMENT OF SALARY TO WALTER WATSON, WHO IS A BRITISH SUBJECT, AND WHO HAS HELD THE POSITION OF SUCH CHIEF CLERK FOR THE PAST YEAR AND A HALF, WILL BE PROHIBITED BY SAID PROVISION.

THE PROVISION IN QUESTION IS AS FOLLOWS:

TEMPORARY GOVERNMENT FOR WEST INDIAN ISLANDS.--- FOR EXPENSES INCIDENT TO THE OCCUPATION OF THE VIRGIN ISLANDS AND TO THE EXECUTION OF THE PROVISIONS OF THE ACT PROVIDING A TEMPORARY GOVERNMENT FOR THE WEST INDIAN ISLANDS ACQUIRED BY THE UNITED STATES FROM DENMARK, AND FOR OTHER PURPOSES, APPROVED MARCH 3, 1917, TO BE APPLIED UNDER THE DIRECTION OF THE PRESIDENT, $280,000 * * * PROVIDED NO PART OF THE $280,000 BE PAID TO ANYONE HOLDING OFFICE IN THE COLONIAL COUNCILS OF THE VIRGIN ISLANDS OR OTHER PUBLIC OFFICE UNDER THE GOVERNMENT OF SAID ISLANDS WHO OWES ALLEGIANCE TO ANY COUNTRY OTHER THAN THE UNITED STATES OF AMERICA.

THE ACT OF MARCH 3, 1917, 39 STAT. 1132, PROVIDES:

THAT, EXCEPT AS HEREINAFTER PROVIDED, ALL MILITARY, CIVIL, AND JUDICIAL POWERS NECESSARY TO GOVERN THE WEST INDIAN ISLANDS ACQUIRED FROM DENMARK SHALL BE VESTED IN A GOVERNOR AND IN SUCH PERSON OR PERSONS AS THE PRESIDENT MAY APPOINT, AND SHALL BE EXERCISED IN SUCH MANNER AS THE PRESIDENT SHALL DIRECT UNTIL CONGRESS SHALL PROVIDE FOR THE GOVERNMENT OF SAID ISLANDS: PROVIDED, THAT THE PRESIDENT MAY ASSIGN AN OFFICER OF THE ARMY OR NAVY TO SERVE AS SUCH GOVERNOR AND PERFORM THE DUTIES APPERTAINING TO SAID OFFICE: AND PROVIDED FURTHER, THAT THE GOVERNOR OF THE SAID ISLANDS SHALL BE APPOINTED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: AND PROVIDED FURTHER, THAT THE COMPENSATION OF ALL PERSONS APPOINTED UNDER THIS ACT SHALL BE FIXED BY THE PRESIDENT.

THE ACT OF JULY 12, 1921 (42 STAT. 123), MAKING APPROPRIATION FOR EXPENSES INCIDENT TO THE OCCUPATION OF THE VIRGIN ISLANDS CONTAINED A PROVISO AS FOLLOWS:

* * * THAT NO PERSON OWING ALLEGIANCE TO ANY COUNTRY OTHER THAN THE UNITED STATES OF AMERICA SHALL BE ELIGIBLE TO HOLD OFFICE AS A MEMBER OF THE COLONIAL COUNCILS OF THE VIRGIN ISLANDS OF THE UNITED STATES NOR TO HOLD ANY PUBLIC OFFICE UNDER THE GOVERNMENT OF SAID ISLANDS. * * *

IN THE CASE OF UNITED STATES V. HARTWELL (6 WALL. 385, 393) AN OFFICE IS DEFINED AS FOLLOWS:

AN OFFICE IS A PUBLIC STATION, OR EMPLOYMENT, CONFERRED BY THE APPOINTMENT OF GOVERNMENT. THE TERM EMBRACES THE IDEAS OF TENURE, DURATION, EMOLUMENT, AND DUTIES.

IN THE CASE CITED A CLERK IN THE OFFICE OF THE ASSISTANT TREASURER OF THE UNITED STATES AT BOSTON, APPOINTED BY THE ASSISTANT TREASURER WITH THE APPROBATION OF THE SECRETARY OF THE TREASURY, WAS HELD TO BE A PUBLIC OFFICER WITHIN THE MEANING OF THE ACT OF AUGUST 6, 1846, 9 STAT. 59. FOLLOWING THE DEFINITION OF AN OFFICE AS QUOTED, SUPRA, WITH REFERENCE TO THE DEFENDANT IN THE CASE, THE COURT SAID:

THE EMPLOYMENT OF THE DEFENDANT WAS IN THE PUBLIC SERVICE OF THE UNITED STATES. HE WAS APPOINTED PURSUANT TO LAW, AND HIS COMPENSATION WAS FIXED BY LAW. VACATING THE OFFICE OF HIS SUPERIOR WOULD NOT HAVE AFFECTED THE TENURE OF HIS PLACE. HIS DUTIES WERE CONTINUING AND PERMANENT, NOT OCCASIONAL OR TEMPORARY. THEY WERE TO BE SUCH AS HIS SUPERIOR IN OFFICE SHOULD PRESCRIBE.

THE REQUEST FOR DECISION DOES NOT SHOW IN WHAT MANNER THE CHIEF CLERK OF THE DEPARTMENT OF AGRICULTURE, COMMERCE, AND LABOR OF THE VIRGIN ISLANDS WAS APPOINTED. FROM THE WORDING OF THE ACT OF MARCH 3, 1917, SUPRA, PROVIDING A TEMPORARY GOVERNMENT FOR THE WEST INDIAN ISLANDS ACQUIRED FROM DENMARK, IN COMMON PARLANCE NOW CALLED THE VIRGIN ISLANDS, NAMELY, THAT THE CIVIL POWER NECESSARY TO GOVERN SAID ISLANDS SHALL BE VESTED IN SUCH PERSONS AS THE PRESIDENT MAY APPOINT AND SHALL BE EXERCISED IN SUCH MANNER AS THE PRESIDENT SHALL DIRECT, AND THAT THE COMPENSATION OF ALL PERSONS APPOINTED UNDER SAID ACT SHALL BE FIXED BY THE PRESIDENT, IT MAY BE ASSUMED THAT THE APPOINTMENT WAS MADE BY AUTHORITY OF THE PRESIDENT. UNDER THE AUTHORITY CONFERRED UPON HIM BY THE ACT OF MARCH 3, 1917, THE PRESIDENT HAS ISSUED NUMEROUS EXECUTIVE ORDERS RELATIVE TO THE VIRGIN ISLANDS, IN SOME OF WHICH HE HAS DELEGATED CERTAIN POWERS TO THE SECRETARY OF THE TREASURY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF COMMERCE OF THE UNITED STATES.

BY EXECUTIVE ORDER OF JUNE 25, 1924 (NO. 4035), THE AMOUNT APPROPRIATED FOR THE TEMPORARY GOVERNMENT OF THE VIRGIN ISLANDS FOR THE FISCAL YEAR 1925 BY THE ACT OF MAY 28, 1924, 43 STAT. 184, WAS PLACED TO THE CREDIT OF THE GOVERNOR OF THE VIRGIN ISLANDS. THE ORDER ALSO PROVIDED THAT THE GOVERNOR SHOULD APPOINT AND FIX THE SALARIES OF THOSE PERSONS EMPLOYED BY THE GOVERNMENT OF THE VIRGIN ISLANDS OF THE UNITED STATES WHOSE POSITIONS AND SALARIES ARE NOT SPECIFIED IN THE ANNUAL BUDGETS OF THE TWO COLONIAL COUNCILS. THERE IS A SIMILAR PROVISION AS TO APPOINTMENT, C., IN THE EXECUTIVE ORDER OF APRIL 2, 1925 (NO. 4188), PLACING TO THE CREDIT OF THE GOVERNOR THE AMOUNT APPROPRIATED FOR THE FISCAL YEAR 1926 BY THE ACT OF FEBRUARY 11, 1925, 43 STAT. 863. EACH OF SAID APPROPRIATIONS PROVIDES THAT IT IS TO BE APPLIED UNDER THE DIRECTION OF THE PRESIDENT.

IN VIEW OF THE VARIOUS STATUTORY PROVISIONS QUOTED OR CITED AND OF THE DEFINITION OF A PUBLIC OFFICE MADE BY THE SUPREME COURT OF THE UNITED STATES, I AM CONSTRAINED TO HOLD THAT THE POSITION OF CHIEF CLERK OF THE DEPARTMENT OF AGRICULTURE, COMMERCE, AND LABOR OF THE GOVERNMENT OF THE VIRGIN ISLANDS IS A PUBLIC OFFICE WITHIN THE MEANING OF THE PROVISO IN THE ACT OF MAY 21, 1926, SUPRA, AND THEREFORE THAT THE USE OF ANY PART OF THE APPROPRIATION OF $280,000 MADE IN SAID ACT TO PAY THE SALARY OF SAID OFFICE TO WALTER WATSON, A BRITISH SUBJECT, WOULD BE IN DIRECT CONTRAVENTION OF SAID PROVISION.