A-36915, JUNE 12, 1931, 10 COMP. GEN. 544

A-36915: Jun 12, 1931

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OF ANY ENGINEER OR OTHER EXPERT WHOSE PRINCIPAL PROFESSIONAL PRACTICE IS OUTSIDE OF SUCH EMPLOYMENT BY SAID BUREAU.'. WAS APPOINTED IN THE FIELD SERVICE OF THE BUREAU OF MINES AT A SALARY OF $10 PER DAY WHEN ACTUALLY EMPLOYED. TAYLOR AND OTHER CONSULTANTS FOR THE BUREAU OF MINES IS PRINCIPALLY FOR THE PURPOSE OF PREPARING PAPERS ON TECHNICAL AND SCIENTIFIC SUBJECTS FOR PUBLICATION BY THE BUREAU. THIS SERVICE IS MORE IN THE NATURE OF A COURTESY TO THE BUREAU OF MINES THAN A SOURCE OF PROFIT TO THOSE APPOINTED. IT IS ESTIMATED THAT. NOT MORE THAN TEN DAYS' WORK WILL BE REQUIRED. THE BUREAU OF MINES IS ALSO PREPARING TO MAKE SIMILAR ARRANGEMENTS WITH OFFICIALS OF FOREIGN COMPANIES ON MATTERS RELATING TO THEIR MINES.

A-36915, JUNE 12, 1931, 10 COMP. GEN. 544

OATHS OF OFFICE - CONSULTANTS - COMMERCE DEPARTMENT THE APPOINTMENT OF ENGINEERS OR EXPERTS AS CONSULTANTS AS PROVIDED BY THE ACT OF FEBRUARY 25, 1913, 37 STAT. 682, BEING VESTED IN THE SECRETARY OF COMMERCE, SUCH CONSULTANTS HOLD OFFICE OF HONOR OR PROFIT WITHIN THE PURVIEW OF SECTION 1757, REVISED STATUTES, AS AMENDED, AND MUST TAKE THE OATH OF OFFICE PROVIDED THEREBY, NOTWITHSTANDING THE NATURE OF THE WORK AND ITS TEMPORARY CHARACTER OR THE FACT THAT THE APPOINTEES MAY BE CITIZENS OF A FOREIGN COUNTRY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JUNE 12, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 27, 1931, AS FOLLOWS:

THE ACT OF FEBRUARY 25, 1913 (TITLE 30, SEC 6, U.S.C.), PROVIDES:

"NOTHING HEREIN SHALL BE CONSTRUED AS PREVENTING THE TEMPORARY EMPLOYMENT BY THE BUREAU OF MINES, AT A COMPENSATION NOT TO EXCEED $10 PER DAY, IN A CONSULTING CAPACITY OR IN THE INVESTIGATION OF SPECIAL SUBJECTS, OF ANY ENGINEER OR OTHER EXPERT WHOSE PRINCIPAL PROFESSIONAL PRACTICE IS OUTSIDE OF SUCH EMPLOYMENT BY SAID BUREAU.'

MR. MAURICE TAYLOR, A CONSULTING MINING ENGINEER, WAS APPOINTED IN THE FIELD SERVICE OF THE BUREAU OF MINES AT A SALARY OF $10 PER DAY WHEN ACTUALLY EMPLOYED, SUBJECT TO TAKING THE OATH OF OFFICE. THE SERVICE TO BE PERFORMED BY MR. TAYLOR AND OTHER CONSULTANTS FOR THE BUREAU OF MINES IS PRINCIPALLY FOR THE PURPOSE OF PREPARING PAPERS ON TECHNICAL AND SCIENTIFIC SUBJECTS FOR PUBLICATION BY THE BUREAU, BUT THIS SERVICE IS MORE IN THE NATURE OF A COURTESY TO THE BUREAU OF MINES THAN A SOURCE OF PROFIT TO THOSE APPOINTED. IT IS ESTIMATED THAT, IN MR. TAYLOR'S CASE, NOT MORE THAN TEN DAYS' WORK WILL BE REQUIRED. THE BUREAU OF MINES IS ALSO PREPARING TO MAKE SIMILAR ARRANGEMENTS WITH OFFICIALS OF FOREIGN COMPANIES ON MATTERS RELATING TO THEIR MINES, AND IN MOST INSTANCES A SUBJECT OF A FOREIGN NATION IS THE ONLY ONE IN A POSITION TO PREPARE SUCH PAPERS. MANY OF THEM WILL DECLINE TO TAKE AN OATH OF OFFICE, THUS RENDERING IT IMPOSSIBLE TO TAKE ADVANTAGE OF A SOURCE OF INFORMATION THAT IS VERY VALUABLE TO THE CITIZENS OF THE UNITED STATES.

YOUR DECISION OF FEBRUARY 26, 1931 (10 COMP. GEN 394), THAT A BRITISH SUBJECT APPOINTED TO A FELLOWSHIP IN THE NATIONAL INSTITUTE OF HEALTH MUST TAKE AN OATH OF OFFICE, CAN BE DISTINGUISHED FROM THE FACTS IN THIS CASE, AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THESE CONSULTANTS EMPLOYED BY THE BUREAU OF MINES ARE REQUIRED TO TAKE AN OATH OF OFFICE UNDER SEC. R.S.

THE ACT OF FEBRUARY 25, 1913, ABOVE REFERRED TO, ESTABLISHED A BUREAU OF MINES IN THE INTERIOR DEPARTMENT AND PROVIDED FOR THE APPOINTMENT BY THE SECRETARY OF THE INTERIOR, BUT NOW, BY VIRTUE OF EXECUTIVE ORDER NO. 4239, DATED JUNE 4, 1935, TRANSFERRING SAID BUREAU TO THE DEPARTMENT OF COMMERCE, BY THE SECRETARY OF COMMERCE OF SUCH EXPERTS AND OTHER EMPLOYEES AS MIGHT BE REQUIRED TO CARRY OUT THE PURPOSES OF THE ACT REFERRED TO IN ACCORDANCE WITH THE APPROPRIATIONS MADE FROM TIME TO TIME FOR SUCH PURPOSES. THE ACT PROVIDES THAT IT SHALL BE THE PROVINCE AND DUTY OF THE BUREAU OF MINES, SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE INTERIOR (COMMERCE/---

* * * TO CONDUCT INQUIRIES AND SCIENTIFIC AND TECHNOLOGIC INVESTIGATIONS CONCERNING MINING, * * * TO INQUIRE INTO THE ECONOMIC CONDITIONS AFFECTING THESE INDUSTRIES; TO INVESTIGATE EXPLOSIVES AND PEAT; AND ON BEHALF OF THE GOVERNMENT TO INVESTIGATE THE MINERAL FUELS AND UNFINISHED MINERAL PRODUCTS BELONGING TO, OR FOR THE USE OF, THE UNITED STATES * * *.

THE PROVISO OF THE ACT QUOTED BY YOU AUTHORIZES THE TEMPORARY EMPLOYMENT OF PERSONAL SERVICES OF ANY ENGINEER OR OTHER EXPERT TO CARRY OUT THE PROVISIONS OF SAID ACT.

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.' EVERY OFFICER OF THE GOVERNMENT IS REQUIRED TO TAKE THE OATH AS PRESCRIBED BY SECTION 1757, REVISED STATUTES, IF BY LAW HIS APPOINTMENT IS VESTED IN THE HEAD OF A DEPARTMENT. 4 COMP. DEC. 92, 93. SEE ALSO 1 COMP. DEC. 540; 6 COMP. GEN. 112; 10 COMP. GEN. 394. IN UNITED STATES V. MAURICE (2 BROCK. 96, 102), MARSHALL, C.J., SAID: "AN OFFICE IS DEFINED TO BE A PUBLIC CHARGE OR EMPLOYMENT," AND HE WHO PERFORMS THE DUTIES OF THE OFFICE IS AN OFFICER. IF EMPLOYED ON THE PART OF THE UNITED STATES, HE IS AN OFFICER OF THE UNITED STATES.' SEE, IN THIS CONNECTION, DECISION OF FEBRUARY 29, 1928, A -12027, WHERE IT WAS HELD THAT THE STATUS OF SPECIAL COUNSEL EMPLOYED BY THE AMERICAN AGENCY BEFORE THE GENERAL AND SPECIAL CLAIMS COMMISSION, UNITED STATES AND MEXICO, WAS SUCH THAT THE SPECIAL COUNSEL BECAME BY THEIR RESPECTIVE APPOINTMENTS OFFICERS OF THE UNITED STATES WITHIN THE PURVIEW OF SECTION 1757, REVISED STATUTES, AND THEREFORE WERE REQUIRED TO TAKE THE OATH THEREIN PROVIDED.

NOTWITHSTANDING THE NATURE OF THE WORK AND ITS TEMPORARY CHARACTER AS RELATED IN YOUR LETTER OF MAY 27, 1931, THE ACT OF FEBRUARY 25, 1913, AS AMENDED BY THE EXECUTIVE ORDER OF JUNE 4, 1925, PROVIDES FOR THE APPOINTMENT BY THE SECRETARY OF COMMERCE OF ENGINEERS OR EXPERTS AND, THEREFORE, IT MUST BE HELD THAT THESE APPOINTEES HOLD OFFICES OF HONOR OR PROFIT WITHIN THE PURVIEW OF SECTION 1757, REVISED STATUTES, AND AS SUCH, WHETHER THEY ARE CITIZENS OF THE UNITED STATES OR OF FOREIGN COUNTRY, THEY MUST EXECUTE THE OATH OF OFFICE AS REQUIRED BY SAID STATUTES.

IT MAY BE STATED THAT IT IS A WELL-ESTABLISHED RULE THAT WHERE AN OATH IS PRESCRIBED AS A PREREQUISITE TO THE COMPLETE INVESTITURE OF AN OFFICE AN APPOINTEE WHO FAILS TO TAKE SUCH OATH IS AT MOST A DE FACTO OFFICER, AND, THEREFORE, NOT ENTITLED TO CLAIM COMPENSATION FROM THE GOVERNMENT. COMP. DEC. 4; 2 ID. 33, 41; 3 ID. 65, 68.

ACCORDINGLY, THE CONSULTANTS EMPLOYED IN THE MANNER SUGGESTED IN YOUR SUBMISSION WILL BE REQUIRED TO TAKE THE OATH OF OFFICE AS PROVIDED BY SECTION 1757, REVISED STATUTES.