A-35187, FEBRUARY 26, 1931, 10 COMP. GEN. 394

A-35187: Feb 26, 1931

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AS SUCH AN APPOINTMENT IS TO AN OFFICE OF HONOR OR PROFIT. FROM THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE: THE PUBLIC HEALTH SERVICE IS DESIROUS OF SECURING THE SERVICES OF DOCTOR CLIFFORD B. A COPY OF WHICH IS ATTACHED. INQUIRY IS MADE AS TO WHETHER IT WOULD BE NECESSARY FOR DOCTOR PURVES. IS AUTHORIZED TO ESTABLISH AND MAINTAIN FELLOWSHIPS IN THE NATIONAL INSTITUTE OF HEALTH FROM FUNDS DONATED FOR THAT PURPOSE. THAT SUCH DONATED FUNDS WILL BE SUBJECT TO THE SAME ACCOUNTING. IS AUTHORIZED (1) TO DESIGNATE THE TITLES AND FIX THE COMPENSATION OF THE NECESSARY SCIENTIFIC PERSONNEL UNDER REGULATIONS APPROVED BY THE PRESIDENT. THIS REQUIREMENT IS CONFINED TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE.

A-35187, FEBRUARY 26, 1931, 10 COMP. GEN. 394

OATHS OF OFFICE - NATIONAL INSTITUTE OF HEALTH - FELLOWSHIPS A BRITISH SUBJECT MAY BE APPOINTED TO A FELLOWSHIP IN THE NATIONAL INSTITUTE OF HEALTH, BUT AS SUCH AN APPOINTMENT IS TO AN OFFICE OF HONOR OR PROFIT, THE APPOINTEE MUST EXECUTE THE OATH TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES, ETC., AS REQUIRED BY SECTION 1757 OF THE REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 26, 1931:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR DIRECTION, THE FOLLOWING LETTER, DATED JANUARY 30, 1931, FROM THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE:

THE PUBLIC HEALTH SERVICE IS DESIROUS OF SECURING THE SERVICES OF DOCTOR CLIFFORD B. PURVES, A BRITISH SUBJECT, RESIDENT IN ABERDEEN, SCOTLAND, FOR APPOINTMENT TO A FELLOWSHIP IN CHEMISTRY UNDER THE PROVISIONS OF THE RANSDELL ACT, A COPY OF WHICH IS ATTACHED.

INQUIRY IS MADE AS TO WHETHER IT WOULD BE NECESSARY FOR DOCTOR PURVES, IF APPOINTED, TO EXECUTE AN OATH OF OFFICE REQUIRING HIM TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES.

THE ACT OF MAY 26, 1930, 46 STAT. 379, PROVIDES THAT THE HYGIENIC LABORATORY OF THE PUBLIC HEALTH SERVICE SHALL HEREAFTER BE KNOWN AS THE NATIONAL INSTITUTE OF HEALTH; THAT IN THE ADMINISTRATION AND OPERATION OF THIS INSTITUTE THE SURGEON GENERAL SHALL SELECT PERSONS WHO SHOW UNUSUAL APTITUDE IN SCIENCE; THAT THE SURGEON GENERAL, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, IS AUTHORIZED TO ESTABLISH AND MAINTAIN FELLOWSHIPS IN THE NATIONAL INSTITUTE OF HEALTH FROM FUNDS DONATED FOR THAT PURPOSE, AND THAT SUCH DONATED FUNDS WILL BE SUBJECT TO THE SAME ACCOUNTING, EXAMINATION, AND AUDIT AS APPROPRIATED FUNDS. SECTIONS 3 AND 4 OF THE ACT FURTHER PROVIDE:

SEC. 3. INDIVIDUAL SCIENTISTS, OTHER THAN COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, DESIGNATED BY THE SURGEON GENERAL TO RECEIVE FELLOWSHIPS MAY BE APPOINTED FOR DUTY IN THE NATIONAL INSTITUTE OF HEALTH ESTABLISHED BY THIS ACT. DURING THE PERIOD OF SUCH FELLOWSHIP THESE APPOINTEES SHALL HOLD APPOINTMENTS UNDER REGULATIONS PROMULGATED BY THE SECRETARY OF THE TREASURY AND SHALL BE SUBJECT TO ADMINISTRATIVE REGULATIONS FOR THE CONDUCT OF THE PUBLIC HEALTH SERVICE. SCIENTISTS SO SELECTED MAY LIKEWISE BE DESIGNATED FOR THE PROSECUTION OF INVESTIGATIONS IN OTHER LOCALITIES AND INSTITUTIONS IN THIS AND OTHER COUNTRIES DURING THE TERM OF THEIR FELLOWSHIPS.

SEC. 4. THE SECRETARY OF THE TREASURY, UPON THE RECOMMENDATION OF THE SURGEON GENERAL, IS AUTHORIZED (1) TO DESIGNATE THE TITLES AND FIX THE COMPENSATION OF THE NECESSARY SCIENTIFIC PERSONNEL UNDER REGULATIONS APPROVED BY THE PRESIDENT; (2) IN ACCORDANCE WITH THE CIVIL SERVICE LAWS TO APPOINT, AND IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AND AMENDMENTS THERETO, FIX THE COMPENSATION OF SUCH CLERICAL AND OTHER ASSISTANTS; AND (3) TO MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES AND RENT AT THE SEAT OF GOVERNMENT, FOR BOOKS OF REFERENCE, PERIODICALS, AND EXHIBITS, AND FOR PRINTING AND BINDING) AS HE DEEMS NECESSARY FOR THE PROPER ADMINISTRATION OF SUCH INSTITUTION.

IT WOULD APPEAR THAT THE LANGUAGE OF THE ACT IN AUTHORIZING THE DESIGNATION AND APPOINTMENT OF SCIENTISTS TO FELLOWSHIPS, CONTEMPLATES NOTHING MORE THAN THEIR APPOINTMENT TO POSITIONS, THE DUTIES OF WHICH INVOLVE SCIENTIFIC RESEARCH AND INVESTIGATION UPON SUBJECTS PERTAINING TO PUBLIC HEALTH. 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.' THIS REQUIREMENT IS CONFINED TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE; THAT IS, OFFICERS WHOSE APPOINTMENT IS VESTED BY LAW IN THE PRESIDENT OF THE UNITED STATES, THE COURTS OF LAW, OR THE HEADS OF THE DEPARTMENTS. COMP. DEC. 540; 4 ID. 92; 6 COMP. GEN. 112. IN THE CASE OF THE UNITED STATES V. HARTWELL, 6 WALL. 385, 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 THAT CASE, A CLERK IN THE OFFICE OF THE ASSISTANT TREASURER OF THE UNITED STATES AT BOSTON, APPOINTED BY THE ASSISTANT TREASURER WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, WAS HELD TO BE A PUBLIC OFFICER.

WHILE THE SURGEON GENERAL IS CHARGED WITH CERTAIN DUTIES IN CONNECTION WITH THE DESIGNATION AND APPOINTMENT TO FELLOWSHIPS, THE APPROVAL OF THE SECRETARY OF THE TREASURY IS NECESSARY TO THE ESTABLISHMENT OF THE FELLOWSHIPS, AND THE APPOINTEES ARE TO HOLD OFFICE UNDER REGULATIONS PROMULGATED BY THE SECRETARY OF THE TREASURY WHO IS CHARGED, ALSO, WITH THE DUTIES OF DESIGNATING THEIR TITLES AND FIXING THEIR COMPENSATION.

ACCORDINGLY, IT MUST BE HELD THAT SCIENTISTS APPOINTED TO FELLOWSHIPS IN THE NATIONAL INSTITUTE OF HEALTH HOLD OFFICES OF HONOR OR PROFIT WITHIN THE MEANING OF SECTION 1757, REVISED STATUTES, AND MUST EXECUTE THE OATH OF OFFICE REQUIRED BY THAT SECTION. THERE APPEARS NO SPECIFIC REQUIREMENT IN THE STATUTES THAT SCIENTISTS SO APPOINTED BE CITIZENS OF THE UNITED STATES, AS IS THE CASE WITH RESPECT TO CERTAIN OFFICERS OF THE FOREIGN SERVICE. NEITHER DOES THERE APPEAR ANY AUTHORITY FOR EXCEPTING APPOINTEES FROM TAKING THE OATH TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES, ETC., AS REQUIRED BY SECTION 1757, REVISED STATUTES, SUCH AS HAS BEEN PROVIDED IN THE CASE OF FOREIGN COUNSEL EMPLOYED BY THE ATTORNEY GENERAL IN SPECIAL CASES. SEE ACT OF APRIL 18, 1930, 46 STAT. 189.