B-53019, NOVEMBER 2, 1945, 25 COMP. GEN. 377

B-53019: Nov 2, 1945

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ARMY OFFICER ACCEPTING TEMPORARY CIVILIAN EMPLOYMENT THE TEMPORARY EMPLOYMENT BY A STATE OF AN ARMY OFFICER ON THE ACTIVE LIST DURING TERMINAL LEAVE PRIOR TO RETIREMENT TO DIRECT THE CONSTRUCTION OF A PARTICULAR STATE PROJECT UNDER A POSITION WHICH DOES NOT REQUIRE AN OATH OF OFFICE OR HAVE COMPENSATION OR TITLE FIXED BY LAW MAY NOT BE REGARDED AS EMPLOYMENT IN A "CIVIL OFFICE" WITHIN THE CONTEMPLATION OF SECTION 1222. AS FOLLOWS: AN OPINION IS REQUESTED AS TO WHETHER DURING TERMINAL LEAVE PRIOR TO RETIREMENT LIEUTENANT GENERAL EUGENE REYBOLD. THE NATURE OF HIS PROPOSED EMPLOYMENT WITH THE STATE OF DELAWARE IS AS FOLLOWS: THE STATE PLANS TO ERECT EITHER A BRIDGE OR TUNNEL ACROSS THE DELAWARE RIVER UNDER THE GENERAL SUPERVISION OF THE STATE HIGHWAY COMMISSION.

B-53019, NOVEMBER 2, 1945, 25 COMP. GEN. 377

ARMY OFFICER ACCEPTING TEMPORARY CIVILIAN EMPLOYMENT THE TEMPORARY EMPLOYMENT BY A STATE OF AN ARMY OFFICER ON THE ACTIVE LIST DURING TERMINAL LEAVE PRIOR TO RETIREMENT TO DIRECT THE CONSTRUCTION OF A PARTICULAR STATE PROJECT UNDER A POSITION WHICH DOES NOT REQUIRE AN OATH OF OFFICE OR HAVE COMPENSATION OR TITLE FIXED BY LAW MAY NOT BE REGARDED AS EMPLOYMENT IN A "CIVIL OFFICE" WITHIN THE CONTEMPLATION OF SECTION 1222, REVISED STATUTES, SUCH AS WOULD VACATE HIS COMMISSION UPON ACCEPTANCE OF SUCH EMPLOYMENT, AND, THEREFORE, THE OFFICER WOULD BE ENTITLED TO HIS OTHERWISE PROPER ACTIVE DUTY PAY AND ALLOWANCES WHILE SO EMPLOYED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, NOVEMBER 2, 1945:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 8, 1945, AS FOLLOWS:

AN OPINION IS REQUESTED AS TO WHETHER DURING TERMINAL LEAVE PRIOR TO RETIREMENT LIEUTENANT GENERAL EUGENE REYBOLD, FORMER CHIEF OF ENGINEERS, CAN ACCEPT EMPLOYMENT WITH THE STATE OF DELAWARE AS DESCRIBED BELOW WITHOUT THEREBY VACATING HIS COMMISSION UNDER R.S. 1222, 10 U.S.C. 576, OR VIOLATING SOME OTHER STATUTE, THUS AFFECTING HIS RETIREMENT PAY OR OTHER AMOUNTS PAYABLE TO HIM BY THIS DEPARTMENT.

GENERAL REYBOLD BEGAN FOUR MONTHS TERMINAL LEAVE ON 30 SEPTEMBER 1945 PRIOR TO BEING PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF SEC. 5 OF THE ACT OF CONGRESS APPROVED 31 JULY 1935 AS AMENDED BY SEC. 3 OF THE ACT OF CONGRESS APPROVED 13 JUNE 1940 ( PUBLIC NO. 612, 76TH CONGRESS) AND SEC. 4C OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACTS OF CONGRESS APPROVED 4 JUNE 1920 AND 14 OCTOBER 1940.

THE NATURE OF HIS PROPOSED EMPLOYMENT WITH THE STATE OF DELAWARE IS AS FOLLOWS: THE STATE PLANS TO ERECT EITHER A BRIDGE OR TUNNEL ACROSS THE DELAWARE RIVER UNDER THE GENERAL SUPERVISION OF THE STATE HIGHWAY COMMISSION. HE IS OFFERED EMPLOYMENT WITH THE STATE WHEREBY AS CONSULTING CONSTRUCTION ENGINEER HE ASSUMES THE MANAGEMENT AND DIRECTION OF THE CONSTRUCTION OF THIS PROJECT. HE WILL NOT BE APPOINTED TO ANY PRESENTLY EXISTING POSITION IN THE STATE HIGHWAY COMMISSION OR ANY OTHER DIVISION OR BRANCH OF THE STATE GOVERNMENT. THE EMPLOYMENT IS FOR THE CONSTRUCTION OF THIS PARTICULAR PROJECT ONLY AND WILL TERMINATE UPON ITS COMPLETION. WILL HAVE NEITHER PREDECESSOR NOR SUCCESSOR IN THE JOB.

UNDER THE TERMS OF HIS EMPLOYMENT HE WILL BE COMPENSATED ON A MONTHLY BASIS DURING THE PERIOD OF CONSTRUCTION OF THE PROJECT. THE COMPENSATION IS NOT FIXED BY LAW. THERE IS NO TITLE FIXED BY LAW COVERING THE EMPLOYMENT. AN OATH OF OFFICE WILL NOT BE REQUIRED, AND THE JOB IS NOT UNDER CIVIL SERVICE. IT IS NOT CONSIDERED THAT THE EMPLOYMENT COULD PROPERLY BE DESIGNATED AS AN ,OFFICE.'

THE STATE PLANS TO BEGIN THE CONSTRUCTION WITHIN A SHORT TIME AND HE THEREFORE DESIRES TO ENTER UPON THE EMPLOYMENT IMMEDIATELY, AND PRIOR TO THE EXPIRATION OF HIS TERMINAL LEAVE.

FOR YOUR INFORMATION, THERE IS ATTACHED COPY OF OPINION OF THE JUDGE ADVOCATE GENERAL DATED 4 OCTOBER 1945 ( SPJGA 1945/10465) WHICH IS SELF- EXPLANATORY.

SECTION 1222 OF THE REVISED STATUTES OF THE UNITED STATES, 10 U.S.C. 576, IS AS FOLLOWS:

NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.

IN A DECISION OF THIS OFFICE DATED JUNE 14, 1941, 20 COMP. GEN. 885, THE PURPOSE AND EFFECT OF THE SAID SECTION 1222 WERE STATED AS FOLLOWS:

BY ITS TERMS, SECTION 1222, REVISED STATUTES, IS A RESTRICTION UPON OFFICERS OF THE ARMY ON THE ACTIVE LIST, AND ITS CONSEQUENCE IS TO ENACT THE PENALTY OF FORFEITURE OF COMMISSION FOR THE ACCEPTING OF A CIVIL OFFICE BY AN ARMY OFFICER. THE SECTION APPEARED ORIGINALLY IN H.R. 987 OF THE FORTY-FIRST CONGRESS, SECOND SESSION, AND WAS INSERTED,ACCORDING TO THE EXPLANATION APPEARING IN 91 CONGRESSIONAL GLOBE 1852, IN THE VIEW THAT IT IS "* * * INCONSISTENT WITH OUR SYSTEM OF GOVERNMENT TO APPOINT MILITARY OFFICERS TO CIVIL POSITIONS.' THAT BILL WAS INCORPORATED IN THE ARMY APPROPRIATION ACT FOR 1871, AND BECAME SECTION 18 OF THE ACT OF JULY 15, 1870, 16 STAT. 319. THE CITED OPINION OF THE ATTORNEY GENERAL (13 OPS. 310) WAS RENDERED SHORTLY THEREAFTER, ON AUGUST 10, 1870, AND THAT CONTEMPORARY OPINION IS SIGNIFICANT THAT THE CONGRESSIONAL PURPOSE WAS ,TO DISENCUMBER ARMY OFFICERS OF EVERY SPECIES OF OFFICIAL DUTY NOT BELONGING TO THEIR MILITARY PROFESSION * * * .' TO A SIMILAR EFFECT, SEE 25 COMP. DEC. 666; 1 COMP. GEN. 499, 501; 29 OP. ATTY. GEN. 298; 35 ID. 187. OTHER WORDS, THAT SECTION WAS A STATUTORY EXPRESSION OF THE INCOMPATIBILITY INHERENT IN THE HOLDING OF A CIVIL OFFICE--- ST FEDERAL--- BY AN ARMY OFFICER ON THE ACTIVE LIST. CF. BADEAU V. UNITED STATES, 130 U.S. 439, AND 18 COMP. GEN. 213.

IN DECISION OF MARCH 11, 1922, 1 COMP. GEN. 499, IT WAS HELD THAT UNDER THE SAID PROVISIONS OF SECTION 1222, REVISED STATUTES, AN ARMY OFFICER VACATED HIS ARMY COMMISSION BY ACCEPTING AN APPOINTMENT AS A MEMBER OF THE ALASKAN ENGINEERING COMMISSION AND, HENCE, WAS NOT ENTITLED TO PAY AS AN ARMY OFFICER.

THE ATTORNEYS GENERAL HAVE HELD THAT THE STATUTE WOULD APPLY TO AN ARMY OFFICER ON THE ACTIVE LIST EXERCISING THE FUNCTIONS OF A PARK COMMISSIONER OF THE CITY OF PHILADELPHIA (13 OP. ATTY. GEN. 310); TO AN ARMY OFFICER ON THE ACTIVE LIST APPOINTED BY THE SUPERIOR COURT OF CINCINNATI TO BE A STATUTORY TRUSTEE OF THE CINCINNATI SOUTHERN RAILWAYS (15 ID. 551); TO AN ARMY OFFICER ON THE ACTIVE LIST APPOINTED BY THE MAYOR OF PHILADELPHIA TO A PLACE ON A "BOARD OF EXPERTS" CREATED BY A CITY ORDINANCE TO DETERMINE THE BEST PAVEMENT FOR THE STREETS OF THE CITY (18 ID. 11); AND TO THE APPOINTMENT OF AN ARMY OFFICER ON THE ACTIVE LIST AS PRESIDENT OF LOUISIANA STATE UNIVERSITY (35 ID. 187). THEY HAVE HELD THAT THE STATUTE DID NOT APPLY TO MEMBERS OF THE ENGINEER CORPS, U.S. ARMY, APPOINTED AS MEMBERS OF THE CALIFORNIA DEBRIS COMMISSION, IN VIEW OF A SPECIFIC PROVISION IN THE STATUTE CREATING SUCH COMMISSION DIRECTING THE PRESIDENT TO APPOINT ITS MEMBERS FROM OFFICERS OF THE CORPS OF ENGINEERS (20 OP. ATTY. GEN. 604), AND THAT IT WOULD NOT APPLY TO AN OFFICER ON THE ACTIVE LIST OF THE ARMY WHO ACCEPTED THE OFFICE OF COLONEL IN THE NATIONAL GUARD OF MASSACHUSETTS, SUCH OFFICE BEING REGARDED AS A MILITARY OFFICE AND, THEREFORE, NOT A "CIVIL OFFICE" WITHIN THE MEANING OF THE STATUTE (29 ID. 298).

NONE OF THOSE CASES APPEARS FAIRLY DECISIVE OF THE PRESENT ONE. IN THOSE WHERE THE STATUTE WAS VIEWED AS APPLICABLE, THERE WERE INVOLVED BASIC ELEMENTS OF OFFICE HOLDING NOT PRESENT IN THIS ASE; AND IN THOSE WHERE THE STATUTE WAS VIEWED AS NOT APPLICABLE THERE WERE SPECIAL CONDITIONS PATENTLY TAKING THE CASE OUT OF SUCH STATUTORY PROVISIONS.

IN 15 OP. ATTY. GEN. 551, RESPECTING THE TRUSTEES FOR THE RAILWAY APPOINTED UNDER OHIO STATUTES, THERE WAS QUOTED A PASSAGE FROM THE OPINION OF CHIEF JUSTICE MARSHALL IN UNITED STATES V. MAURICE, 2 BROCK. C.C., 96, IN PART AS FOLLOWS:

* * * ALTHOUGH AN OFFICE IS "AN EMPLOYMENT," IT DOES NOT FOLLOW THAT EVERY EMPLOYMENT IS AN OFFICE. A MAN MAY CERTAINLY BE EMPLOYED UNDER A CONTRACT, EXPRESS OR IMPLIED, TO DO AN ACT OR PERFORM A SERVICE WITHOUT BECOMING AN OFFICER. BUT IF A DUTY BE A CONTINUING ONE, WHICH IS DEFINED BY RULES PRESCRIBED BY THE GOVERNMENT AND NOT BY CONTRACT, WHICH AN INDIVIDUAL IS APPOINTED BY GOVERNMENT TO PERFORM, WHO ENTERS ON THE DUTIES APPERTAINING TO HIS STATION, WITHOUT ANY CONTRACT DEFINING THEM, IF THOSE DUTIES CONTINUE, THOUGH THE PERSON BE CHANGED, IT SEEMS VERY DIFFICULT TO DISTINGUISH SUCH A CHARGE OR EMPLOYMENT FROM AN OFFICE, OR THE PERSON WHO PERFORMS THE DUTIES FROM AN OFFICER.

THE SAID ATTORNEY GENERAL'S OPINION PROCEEDED TO SHOW THAT THE TRUSTEESHIPS THERE INVOLVED CAME WITHIN THE CONDITIONS STATED BY CHIEF JUSTICE MARSHALL AS CONSTITUTING CERTAIN PUBLIC EMPLOYMENT AN OFFICE AND CONCLUDED THAT SUCH A TRUSTEESHIP WAS A CIVIL OFFICE WITHIN THE MEANING OF SECTION 1222, REVISED STATUTES, NOTWITHSTANDING THAT THE OHIO COURTS HAD HELD SUCH POSITION NOT TO BE AN OFFICE WITHIN THE MEANING OF CERTAIN PROVISIONS OF THE STATE CONSTITUTION, THE ATTORNEY GENERAL'S OPINION IN THAT RESPECT BEING AS FOLLOWS:

THE DUTY IN THE PRESENT CASE IS A CONTINUING ONE, IS DEFINED BY RULES PRESCRIBED BY THE GOVERNMENT, AND NOT BY CONTRACT. THE PERSON TO PERFORM THEM IS APPOINTED BY A DEPARTMENT OF THE GOVERNMENT, AND THE DUTIES OF THE PLACE CONTINUE, THOUGH THE PERSON BE CHANGED.

THERE IS NO OCCASION HERE TO QUESTION THE JUDGMENT BY THE SUPREME COURTS OF OHIO (21 OHIO STATE, 39) THAT SUCH TRUSTEESHIP IS NOT AN/OFFICE WITHIN CERTAIN ORGANIC PROVISIONS OF THE CONSTITUTION OF THAT STATE. FOR IF THE PROHIBITIONS OF SECTION 1222 ARE TO HAVE ANY SUBSTANTIAL OPERATION, IT SEEMS THAT THEY WILL REACH, AMONG OTHERS, CASES OF PUBLIC CIVIL EMPLOYMENT WHOSE DUTIES ARE SO EXTENSIVE, ENGROSSING, AND RESPONSIBLE AS THE DETAILS ABOVE GIVEN SHOW THAT THIS ONE MAY BE, WITHOUT REGARD TO THE QUESTION WHETHER IN OTHER SENSES AND FOR OTHER PURPOSES, STATE OR NATIONAL, SUCH PUBLIC EMPLOYMENT BE AN OFFICE.

THUS, WHILE IT WAS CONCLUDED THAT CERTAIN "PUBLIC CIVIL EMPLOYMENT" MEETING THE CONDITIONS STATED BY CHIEF JUSTICE MARSHALL IN UNITED STATES V. MAURICE, SUPRA, WAS TO BE REGARDED AS A "CIVIL OFFICE" WITHIN THE MEANING OF SECTION 1222, REVISED STATUTES, REGARDLESS OF WHETHER IT WAS TO BE TREATED AS AN "OFFICE" IN OTHER SENSES, APPARENTLY THE VIEW WAS NOT ENTERTAINED THAT ANY AND ALL PUBLIC EMPLOYMENT, IPSO FACTO, WOULD FALL WITHIN THE TERM "CIVIL OFFICE" IN SECTION 1222.

IN 18 OP. ATTY. GEN. 11, INVOLVING THE "BOARD OF EXPERTS" TO DETERMINE THE BEST PAVEMENT FOR THE CITY OF PHILADELPHIA, THE ATTORNEY GENERAL SAID:

IT IS PLAIN THAT THE BOARD IN QUESTION HAS BEEN CONSTITUTED WITH REFERENCE TO IMPORTANT PUBLIC NEEDS AND IS TO DISCHARGE AN IMPORTANT PUBLIC DUTY. IN THE MOST COMPREHENSIVE SENSE OF THE WORD OFFICE, THEREFORE, PLACES UPON THAT BOARD WILL BE OFFICES, AND OF COURSE "CIVIL OFFICES.'

ARE THEY SUCH WITHIN THE PURVIEW OF SECTION 1222?

IT SEEMS TO ME THAT NOTWITHSTANDING THE GRAVITY OF THE PENALTY THEREIN INFLICTED, THE POLICY OF SECTION 1222 POINTS TO A VERY LIBERAL INTERPRETATION OF THE PHRASE "CIVIL OFFICE.' IN EVANS'S CASE (74 PA. ST. REPT., 124), THE QUESTION WAS WHETHER A PERSON WHO HAD BEEN APPOINTED BY THE GOVERNOR OF THE STATE "TO COLLECT A SINGLE CLAIM, OR RATHER A SET OF CLAIMS, AGAINST A PARTICULAR DEBTOR" (THE UNITED STATES) WAS A PUBLIC OFFICER. THE COURT DECIDED THAT HE WAS; SHARSWOOD, J. SAYING ARGUENDO: "CAN IT MAKE ANY DIFFERENCE THAT A PERSON IS COMMISSIONED BY THE GOVERNOR AS A GENERAL AGENT TO COLLECT ALL CLAIMS OF THE COMMONWEALTH, OR AS A SPECIAL AGENT TO COLLECT ONLY ONE PARTICULAR CLAIM.'

I QUOTE EVANS'S CASE NOT BECAUSE THE PRESENT QUESTION CAN BE MADE TO TURN UPON ANY SPECIAL VIEW AS TO THE MEANING OF THE WORD OFFICE IN THE COURTS OF PENNSYLVANIA, BUT BECAUSE I UNDERSTAND THE ABOVE LANGUAGE TO CONVEY THE GENERAL LEGAL MEANING OF THAT WORD. (15 OPIN., 551.) WHILE THE VIEW WAS TAKEN IN THAT OPINION THAT SECTION 1222 APPLIES TO A TEMPORARY AS WELL AS A CONTINUING CIVIL POSITION "CONSTITUTED WITH REFERENCE TO IMPORTANT PUBLIC NEEDS" AND "TO DISCHARGE AN IMPORTANT PUBLIC DUTY," IT IS TO BE NOTED THAT THE POSITION THERE INVOLVED, ALTHOUGH TEMPORARY, WAS ON A BOARD EXPRESSLY CREATED BY A MUNICIPAL ORDINANCE DEFINING THE DUTIES AND FIXING THE COMPENSATION OF THE MEMBERS, AND IN THAT SENSE CONSTITUTING SUCH MEMBERS OFFICERS, APPOINTED TO "DISCHARGE AN IMPORTANT PUBLIC DUTY," SUCH CONDITIONS DO NOT APPEAR IN THE PRESENT CASE.

IN 35 OP. ATTY. GEN. 187, HOLDING THAT THE ACCEPTANCE OF AN APPOINTMENT AS PRESIDENT OF LOUISIANA STATE UNIVERSITY WOULD OPERATE, UNDER SECTION 1222, REVISED STATUTES, TO VACATE THE COMMISSION OF AN OFFICER ON THE ACTIVE LIST OF THE ARMY, IT WAS SUGGESTED THAT IF THERE BE ANYTHING IN THE STATUTES OR REGULATIONS WHICH AUTHORIZES THE SECRETARY OF WAR TO GRANT AN OFFICER ON THE ACTIVE LIST INDEFINITE LEAVE OF ABSENCE,"IT MAY WELL BE" THAT AN OFFICER GRANTED SUCH LEAVE MIGHT ACCEPT THE OFFICE OF PRESIDENT OF A STATE UNIVERSITY WITHOUT IN ANY WAY INTERFERING WITH THE PERFORMANCE OF ANY DUTY AS AN OFFICER OF THE UNITED STATES" "WITH THE RESULT THAT HIS COMMISSION WOULD NOT BE FORFEITED.' HOWEVER, I CAN PERCEIVE NO BASIS FOR AGREEING THAT THE DETERMINATION OF WHETHER A CERTAIN CIVIL POSITION IS A "CIVIL OFFICE" WITHIN THE MEANING OF SECTION 1222 CAN BE MADE TO DEPEND ON WHETHER THE DUTIES OF SUCH POSITION MIGHT IN FACT BE PERFORMED BY A PARTICULAR ARMY OFFICER WITHOUT INTERFERING WITH HIS ASSIGNED DUTIES, IF ANY, AS AN OFFICER ON THE ACTIVE LIST OF THE ARMY. THE STATUTE MAKES THE TWO POSITIONS INCOMPATIBLE AS A MATTER OF LAW, WITHOUT QUALIFICATION AND WITHOUT REGARD TO ANY SHOWING OF COMPATIBILITY IN FACT BY REASON OF LEAVE OF ABSENCE, OR OTHERWISE, WITH RESPECT TO A PARTICULAR OFFICER AND A PARTICULAR POSITION. SO LONG AS AN OFFICER ON LEAVE OF ABSENCE, WHETHER IT BE TERMINAL LEAVE OR OTHER LEAVE, CONTINUES TO BE AN ,OFFICER OF THE ARMY ON THE ACTIVE LIST," HE CLEARLY IS SUBJECT TO THE PROVISIONS OF SECTION 1222, REVISED STATUTES, AND, PERFORCE, THE STATUTE APPLIES IF HE ACCEPTS, HOLDS, OR EXERCISES THE FUNCTIONS OF A "CIVIL OFFICE" WITHIN THE MEANING OF SUCH TERM AS USED IN THAT STATUTE.

SECTION 1224, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1877, 19 STAT. 243, 10 U.S.C. 495, PROVIDES AS FOLLOWS: NO OFFICER OF THE ARMY SHALL BE EMPLOYED ON CIVIL WORKS OR INTERNAL IMPROVEMENTS, OR BE ALLOWED TO ENGAGE IN THE SERVICE OF ANY INCORPORATED COMPANY, OR BE EMPLOYED AS ACTING PAYMASTER OR DISBURSING AGENT OF THE INDIAN DEPARTMENT, IF SUCH EXTRA EMPLOYMENT REQUIRES THAT HE SHALL BE SEPARATED FROM HIS COMPANY, REGIMENT, OR CORPS, OR IF IT SHALL OTHERWISE INTERFERE WITH THE PERFORMANCE OF THE MILITARY DUTIES PROPER.

THAT STATUTE IS IN PARI MATERIA WITH SECTION 1222, REVISED STATUTES, AND IS TO BE READ IN CONJUNCTION THEREWITH. IN CONTRAST WITH THE NARROWER TERMS USED IN SECTION 1222 "HOLD ANY CIVIL OFFICE," " BY ELECTION OR APPOINTMENT" AND "EXERCISES THE FUNCTIONS OF A CIVIL OFFICE," SECTION 1224, AS AMENDED, USES THE TERMS "EMPLOYED," "ENGAGE IN THE SERVICE OF," AND "EXTRA EMPLOYMENT.' READING THE TWO SECTIONS TOGETHER COMPELS THE CONCLUSION THAT THE TERM "CIVIL OFFICE" IN SECTION 1222 WAS NOT LEGISLATIVELY INTENDED TO EMBRACE ANY AND ALL CIVIL PUBLIC EMPLOYMENT, BECAUSE THAT WOULD LEAVE NO SCOPE FOR THE OPERATION OF SECTION 1224, AND SECTION 1224 MUST BE VIEWED AS CONTEMPLATING THAT SOME CIVIL PUBLIC EMPLOYMENT WOULD BE PERMISSIBLE IN CASES WHERE THERE WOULD BE NO INTERFERENCE WITH THE PERFORMANCE OF AN OFFICER'S MILITARY DUTIES PROPER AND WHERE NOT CONTRARY TO OTHER STATUTES, SUCH AS THE DUAL COMPENSATION STATUTES. THE DIFFICULTY COMES IN DETERMINING IN A GIVEN CASE WHETHER THE PARTICULAR CIVIL PUBLIC EMPLOYMENT RISES TO THE DIGNITY OF A "CIVIL FFICE" WITHIN THE MEANING OF SECTION 1222.

IN CARRINGTON V. UNITED STATES, 218 U.S. 1, WHERE AN OFFICER ON THE ACTIVE LIST OF THE ARMY IN COMMAND OF A PHILIPPINE SCOUT BATTALION HAD RECEIVED $3,500 FROM THE CIVIL GOVERNMENT OF THE PHILIPPINE ISLANDS TO BE EXPENDED IN THE PREPARATION AND DISPLAY OF A SCOUT EXHIBIT AT THE LOUISIANA PURCHASE EXPOSITION, THE SUPREME COURT OF THE UNITED STATES IN AN OPINION BY MR. JUSTICE HOLMES, REFERRING, INTER ALIA, TO SECTION 1222, REVISED STATUTES, SAID THAT:

* * * AN OFFICE COMMONLY REQUIRES SOMETHING MORE PERMANENT THAN A SINGLE TRANSITORY ACT OR TRANSACTION TO CALL IT INTO BEING * * *. AND, ALSO, THAT:

WE THINK IT ENTIRELY PLAIN THAT THE ACCEPTANCE OF THE DUTY OF SPENDING AND ACCOUNTING FOR THIS SMALL FUND DID NOT AMOUNT TO HOLDING A CIVIL OFFICE WITHIN THE STATUTES OF THE UNITED STATES. * *

WHILE THE QUESTIONS WHICH WERE INVOLVED AROSE UNDER OTHER FEDERAL STATUTES RESTRICTING DUAL OFFICE HOLDING AND THE PAYMENT OF ADDITIONAL COMPENSATION TO OFFICERS, NAMELY, SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AND SECTION 1765, REVISED STATUTES, THE FOLLOWING DISCUSSIONS BY COMPTROLLERS OF THE TREASURY ARE ILLUMINATING AND HELPFUL IN DETERMINING THE DEMARCATION BETWEEN PUBLIC EMPLOYMENT AND CIVIL OFFICE. IN DECISION OF MARCH 27, 1896, 2 COMP. DEC. 467, THE QUESTION WAS UNDER THE SAID ACT OF JULY 31, 1894, AND WAS DISCUSSED BY COMPTROLLER OF THE TREASURY BOWLER, IN PART, AS FOLLOWS:

MR. FLEMING CLAIMS THAT NEITHER AS CHIEF OF DIVISION IN THE ARCHITECT'S OFFICE NOR AS A COMMISSIONER TO SELECT THE SITE OF THE GOVERNMENT BUILDING AT POTTSVILLE DID HE HOLD AN OFFICE WITHIN THE MEANING OF THAT ACT. WHAT IS NECESSARY TO CONSTITUTE AN OFFICER IS NOT EASILY DETERMINED. IT HAS BEEN UNDER DISCUSSION IN MANY CASES IN THE SUPREME COURT ( UNITED STATES V. HARTWELL, 6 WALL., 385; UNITED STATES V. GERMAINE, 99 U.S., 508; HALL V. WISCONSIN, 103 U.S. 5; UNITED STATES V. BRINDLE, 110 U.S., 688; UNITED STATES V. MOUAT, 124 U.S., 303; UNITED STATES V. HENDEE, 124 U.S. 309; AND OTHER CASES). IF MR. FLEMING'S POSITION AS CHIEF OF DIVISION HAD BEEN SPECIFICALLY PROVIDED FOR BY STATUTE, IT IS CLEAR THAT HE WOULD HAVE BEEN AN OFFICER OF THE UNITED STATES EVEN WITHIN THE CONSTITUTIONAL SENSE OF THAT WORD, BUT IN ORDER TO BE AN OFFICER WITHIN THE MEANING OF CERTAIN STATUTES IT IS NOT NECESSARY THAT HE SHOULD BE A CONSTITUTIONAL OFFICER, FOR THE WORD "OFFICER" MAY HAVE A DIFFERENT MEANING IN DIFFERENT STATUTES. THIS IS WELL BROUGHT OUT BY THE TWO CASES OF UNITED STATES V. MOUAT AND UNITED STATES V. HENDEE (SUPRA), IN THE FIRST OF WHICH IT WAS HELD THAT A NAVY PAYMASTER'S CLERK WAS NOT AN OFFICER OF THE NAVY WITHIN THE MEANING OF THE ACT OF JUNE 30, 1876 (19 STAT., 65), SO AS TO BE ENTITLED TO THE BENEFITS OF THE MILEAGE ALLOWED BY THAT ACT, WHILE IN THE LATTER OF WHICH IT WAS HELD THAT HE WAS AN OFFICER OF THE NAVY WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MARCH 3, 1883 (22 STAT. 473), RELATING TO LONGEVITY PAY OF OFFICERS AND ENLISTED MEN IN THE ARMY AND NAVY. THE POSITION WHICH MR. FLEMING HOLDS IN THE ARCHITECT'S OFFICE IS PRESCRIBED BY A REGULATION OF THE SECRETARY OF THE TREASURY, MADE IN ACCORDANCE WITH LAW, TO WHICH SPECIFIC DUTIES OF A PERMANENT AND CONTINUOUS CHARACTER ARE ATTACHED, AND WILL CONTINUE, NOTWITHSTANDING THERE MAY BE A CHANGE IN THE PERSONS OCCUPYING THE OFFICES OF SUPERVISING ARCHITECT AND SECRETARY OF THE TREASURY. HIS COMPENSATION IS A FIXED ANNUAL SALARY, AMOUNTING TO MORE THAN $2,500 PER ANNUM. IF MR. FLEMING IS NOT TECHNICALLY AN ,OFFICER" OF THE UNITED STATES WITHIN EVERY MEANING OF THE WORD AS USED IN SECTION 2 OF THE ACT OF JULY 31, 1894. THE SAME POLICY WHICH PRECLUDES AN OFFICER WHO IS TECHNICALLY SUCH FROM HOLDING ANOTHER OFFICE APPLIES WITH EQUAL FORCE TO A PERSON HOLDING SUCH A POSITION OR EMPLOYMENT AS MR. FLEMING DOES. * * *

THE QUESTION STILL LEFT FOR DETERMINATION IS WHETHER THE POSITION OF A COMMISSIONER TO SELECT THE SITE OF A POTTSVILLE PUBLIC BUILDING, TO WHICH MR. FLEMING WAS APPOINTED, IS AN OFFICE WITHIN THE MEANING OF SAID ACT. THE COMMISSIONERS WERE REQUIRED TO BE APPOINTED BY THE SECRETARY OF THE TREASURY, THE HEAD OF ONE OF THE EXECUTIVE DEPARTMENTS. THE DUTIES OF THE COMMISSIONERS AND THE COMPENSATION WHICH THEY WERE TO RECEIVE WERE PRESCRIBED BY THE ACT. BUT THIS DOES NOT NECESSARILY MAKE THEM OFFICERS. THEIR DUTIES WERE NOT PERMANENT AND CONTINUOUS, BUT WERE TEMPORARY ONLY, AND CEASED WHEN THEY HAD MADE A WRITTEN REPORT OF THE PERFORMANCE OF THE SINGLE ACT WHICH THEY WERE REQUIRED TO DO. SUCH TEMPORARY SERVICE DOES NOT CONSTITUTE THE CHARACTER OF DUTY USUALLY STATED AS PERTAINING TO A PUBLIC OFFICE, WHICH EMBRACES "THE IDEAS OF TENURE, DURATION, EMOLUMENT, AND DUTIES" ( UNITED STATES V. HARTWELL, 6 WALL., 385-393). TENURE AND DURATION IMPLY PERMANENCY OF DUTIES, AND NOT SUCH AS ARE LIMITED TO THE ACCOMPLISHMENT OF A SINGLE SPECIFIC ACT. COMMISSIONERS TO ERECT PUBLIC BUILDINGS FOR STATES OR COUNTIES HAVE IN SEVERAL CASES BEEN HELD NOT TO HOLD OFFICES WITHIN THE MEANING OF CERTAIN STATE CONSTITUTIONAL PROVISIONS, BECAUSE THE DUTIES WHICH THEY WERE REQUIRED TO PERFORM WERE NOT, STRICTLY SPEAKING, GOVERNMENTAL, AND WERE LIMITED TO THE ACCOMPLISHMENT OF THE SPECIAL PURPOSES FOR WHICH THEY WERE APPOINTED ( BUNN V. THE PEOPLE, 45 LL., 397; MCARTHUR V. NELSON, 81 KY., 67; SEE ALSO TRAVELERS' INSURANCE COMPANY V. TOWNSHIP OF OSWEGO, 59 FED. REP., 58). BUNN V. THE PEOPLE, 45 ILL., 397-405), CHIEF JUSTICE BREESE SAID:

"SO FAR AS WE HAVE ANY KNOWLEDGE ON THIS SUBJECT, OR ARE ENABLED TO JUDGE FROM THE FACTS OF CONTEMPORANEOUS HISTORY, NO ONE HAS EVER SUPPOSED THE LEGISLATURE HAD NOT FULL POWER TO APPOINT AND EMPLOY ALL SUCH AGENTS AS MIGHT BE DEEMED NECESSARY BY THEM TO PERFORM DUTIES NOT OF A PERMANENT, BUT OF A TRANSIENT AND INCIDENTAL CHARACTER, SUCH AS WE SEE IN ABUNDANCE IN OUR STATUTE BOOKS. NO ONE HAS EVER EXALTED SUCH EMPLOYEES TO THE POSITION OF AN OFFICER, THOUGH THEIR DUTIES MIGHT REQUIRE MONTHS OR YEARS FOR THEIR FULL PERFORMANCE. THERE IS NO ENDURING ELEMENT IN THESE EMPLOYMENTS, NOR DESIGNED TO BE; THE DUTY BEING PERFORMED, THE PLACE IS VACANT BY THE VERY FACT OF PERFORMANCE.'

* * * IN MY OPINION THE STATUTE WAS NOT INTENDED TO APPLY TO SUCH A CASE AS THIS, AND THAT SUCH A TEMPORARY POSITION AS A COMMISSIONER TO SELECT THE SITE OF A PUBLIC BUILDING IS NOT AN OFFICE WITHIN THE MEANING OF THAT STATUTE. * * * COMPARE 14 COMP. GEN. 68; 16 ID. 47; DECISION OF AUGUST 6, 1942, B-27800.

IN A DECISION OF JUNE 20, 1898, 4 COMP. DEC. 696, COMPTROLLER OF THE TREASURY TRACEWELL HAD TO DETERMINE WHETHER THE SECRETARY AND DISBURSING AGENT OF THE WORLD'S COLUMBIAN COMMISSION WAS AN ,OFFICER IN ANY BRANCH OF PUBLIC SERVICE," WITHIN THE MEANING OF SECTION 1765, REVISED STATUTES. ARRIVING AT THE CONCLUSION THAT HE WAS NOT, THE BASIC FACTORS DIFFERENTIATING AN OFFICER FROM AN EMPLOYEE OR AGENT WERE DISCUSSED AT SOME LENGTH AS FOLLOWS:

AN OFFICER IS ONE WHO IS INVESTED WITH AN OFFICE. THIS RAISES THE QUESTION, WHAT IS AN OFFICE? NUMEROUS DEFINITIONS OF THE TERM HAVE BEEN ATTEMPTED, BUT THERE IS NO AUTHORITATIVE DEFINITION THAT IS ENTIRELY SATISFACTORY. AMONG THESE THREE ARE ONLY A FEW THAT NEED BE REFERRED TO.

"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.' ( UNITED STATES V. HARTWELL, WALL. 393).

THIS DEFINITION HAS BEEN OFTEN CITED, BUT IT IS OF LITTLE VALUE. A TERM, A TENURE, DURATION, EMOLUMENTS, AND DUTIES ARE NOT PECULIAR TO AN OFFICE. NOR DOES THE DESCRIPTION "PUBLIC STATION OR EMPLOYMENT" DISTINGUISH AN OFFICE FROM AN AGENCY. IN THIS CONNECTION CHIEF JUSTICE MARSHALL AID:

"ALTHOUGH AN OFFICE IS "AN EMPLOYMENT," IT DOES NOT FOLLOW THAT EVERY EMPLOYMENT IS AN OFFICE. A MAN MAY CERTAINLY BE EMPLOYED UNDER A CONTRACT, EXPRESS OR IMPLIED, TO DO AN ACT OR PERFORM A SERVICE WITHOUT BECOMING AN OFFICER.' ( UNITED STATES V. MAURICE, 2 BROCK., 96, 103).

THE WORD "APPOINTMENT," AS USED IN THE DEFINITION, MUST INCLUDE ELECTION, OTHERWISE IT WOULD EXCLUDE ALL ELECTIVE OFFICERS, AMONG THEM THE PRESIDENT. SO ALSO THE WORD "GOVERNMENT," MUST BE USED IN A SIMILARLY BROAD SENSE, AND INCLUDE THE PEOPLE. BUT THE WHOLE CLAUSE "CONFERRED BY THE APPOINTMENT OF GOVERNMENT" IS INAPPROPRIATE IN A DEFINITION. IT IS MERELY DESCRIPTIVE OF A MODE OF INVESTING A PERSON WITH AN OFFICE. BUT AN AGENCY MAY ALSO BE "CONFERRED BY THE APPOINTMENT OF GOVERNMENT.' ( UNITED STATES V. FILLEBROWN, 7 PET., 28).

THE TERM "OFFICE" HAS ALSO BEEN DEFINED AS FOLLOWS:

AN OFFICE IS "AN EMPLOYMENT ON BEHALF OF THE GOVERNMENT IN ANY STATION OF PUBLIC TRUST, NOT MERELY TRANSIENT, OCCASIONAL, OR INCIDENTAL.' ( PLATT, J., IN RE ATTORNEYS, 20 JOHNS, N.Y. 492).

THE IDEA OF A CONTINUING EMPLOYMENT ENTERS INTO MANY OF THE DEFINITIONS. THE FOLLOWING EXPRESSION OF THAT VIEW BY CHIEF JUSTICE MARSHALL HAS BEEN OFTEN QUOTED WITH APPROVAL:

"A MAN MAY CERTAINLY BE EMPLOYED * * * WITHOUT BECOMING AN OFFICER. BUT IF A DUTY BE A CONTINUOUS ONE, WHICH IS DEFINED BY RULES PRESCRIBED BY THE GOVERNMENT AND NOT BY CONTRACT, WHICH AN INDIVIDUAL IS APPOINTED BY GOVERNMENT TO PERFORM * * * IF THOSE DUTIES CONTINUE, THOUGH THE PERSON BE CHANGED, IT SEEMS VERY DIFFICULT TO DISTINGUISH SUCH A CHARGE OR EMPLOYMENT FROM AN OFFICE.' ( UNITED STATES V. MAURICE, SUPRA).

BUT THE DUTIES OF AN AGENCY MAY BE CONTINUOUS AND INDEPENDENT OF THE PARTICULAR PERSON EMPLOYED AS AGENT. PERMANENCY IS NOT NECESSARY TO AN OFFICE. OFFICES HAVE FREQUENTLY BEEN ESTABLISHED FOR PARTICULAR OCCASIONS, OR FOR THE PERFORMANCE OF A SINGLE ACT. (IN RE CORLISS, 11 R.I., 638; COM. V. EVANS, 74 PA., 124; PEOPLE V. COMPTROLLER, 29 WEND., N.Y., 595; STATE V. STANLEY, 66 N.C., 59).

THE FOLLOWING DEFINITION INDICATES THE SUBSTANCE OF AN OFFICE:

AN OFFICE IS "A PUBLIC POSITION TO WHICH A PORTION OF THE SOVEREIGNTY OF THE COUNTRY, EITHER LEGISLATIVE, EXECUTIVE, OR JUDICIAL, ATTACHES FOR THE TIME BEING.' ( HIGH EX. REM., SEC. 620, QUOTED IN ELIASON V. COLEMAN, 86 N.C., 133).

THE ESSENTIAL CHARACTERISTIC OF AN OFFICE IS POINTED OUT IN THE ABOVE DEFINITION AND ALSO IN THE FOLLOWING:

"WE APPREHEND THAT THE TERM "OFFICE" IMPLIES A DELEGATION OF A PORTION OF THE SOVEREIGN POWER TO, AND THE POSSESSION OF IT BY, THE PERSON FILLING THE OFFICE.' ( OPINION OF THE JUDGES, 3 EEN., ME.,461).

THE EXERCISE OF A FUNCTION OF GOVERNMENT IS CLEARLY AN ATTRIBUTE OF A PUBLIC OFFICE. WHEN IT IS CONSIDERED WHAT THE FUNCTIONS OF GOVERNMENT ARE, AND HOW FUNCTIONS OF GOVERNMENT ARE TO MAKE LAWS, TO EXECUTE THEM, AND TO ADMINISTER JUSTICE. UNDER OUR SYSTEM OF GOVERNMENT THERE CAN BE NO LAWS ENACTED OR EXECUTED, NOR JUSTICE ADMINISTERED, EXCEPT BY PERSONS AUTHORIZED BY LAW TO PERFORM THOSE FUNCTIONS. NOT ONE OF THE POWERS OF THE GOVERNMENT CAN BE LEGALLY EXERCISED UNTIL AUTHORITY HAS BEEN GRANTED BY LAW FOR THE PURPOSE.

IN ACCORDANCE WITH THIS VIEW, AN OFFICE MAY BE DEFINED AS AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT. IN RESPECT TO OFFICES OF THE UNITED STATES, SUCH AUTHORITY CAN BE GRANTED ONLY BY THE CONSTITUTION OR BY CONGRESS. THE EXECUTIVE BRANCH OF THE GOVERNMENT IS NOT EMPOWERED TO CREATE AN OFFICE.

AN EMPLOYEE IS ONE WHO IS EMPLOYED UNDER A CONTRACT, EXPRESS OR IMPLIED, TO PERFORM PERSONAL SERVICE. A PUBLIC EMPLOYMENT IS DISTINGUISHED FROM AN OFFICE BY THE FACT THAT IN THE ONE CASE THE AUTHORITY TO PERFORM A PUBLIC SERVICE IS DERIVED FROM A CONTRACT, WHILE IN THE OTHER IT IS DERIVED FROM THE LAW. A PUBLIC EMPLOYMENT MAY AND USUALLY DOES INVOLVE THE PERFORMANCE OF A FUNCTION OF GOVERNMENT. BUT IN SUCH CASE AUTHORITY TO PERFORM THE FUNCTION MUST FIRST BE GRANTED BY LAW, THUS CREATING AN OFFICE. THEREUPON A PERSON INVESTED WITH THE OFFICE MAY ENTER INTO A CONTRACT WITH ANOTHER PERSON TO PERFORM SOME PORTION OF THE SERVICE.

WHERE A PUBLIC DUTY HAS BEEN DEVOLVED UPON AN OFFICER IT IS NOT ALWAYS INCUMBENT UPON HIM TO PERFORM EVERY ACT NECESSARY TO ITS EXECUTION IN PERSON; THAT IS OFTEN IMPRACTICABLE. THERE ARE MANY DUTIES DEVOLVED UPON HEADS OF DEPARTMENTS, WICH BY REASON OR THE MULTIPLICITY OF OTHER DUTIES WITH WHICH THEY ARE CHARGED, OR OF THE MAGNITUDE OF THE WORK, OR OF THE PECULIAR KNOWLEDGE OR SKILL REQUIRED, CAN NOT BE PERFORMED BY THEM PERSONALLY. THE PERFORMANCE OF SUCH A DUTY ALSO FREQUENTLY REQUIRES SERVICES TO BE RENDERED WHICH ARE NOT WITHIN THE LINE OF DUTY OF ANY INFERIOR OFFICER PROVIDED BY LAW. IN SUCH CASES THE HEAD OF A DEPARTMENT HAS ALWAYS BEEN DEEMED TO POSSESS, INCIDENTALLY, AUTHORITY TO EMPLOY SUITABLE PERSONS TO PERFORM THE REQUIRED SERVICES, AS THE APPROPRIATE MEANS TO EXECUTE THE DUTY DEVOLVED UPON HIM. ( UNITED STATES V. MACDANIEL, 7 T., 1; UNITED STATES V. RIPLEY, ID. 18; UNITED STATES V. FILLEBROWN, ID., 28; GRATIOT V. UNITED STATES, 15 PET., 336; CONVERSE V. UNITED STATES, 21 HOW., 463; UNITED STATES V. BRINDLE, 110 .S., 688).

THE PERSONS THUS EMPLOYED ARE KNOWN AS AGENTS OR EMPLOYEES. THEY REPRESENT THE OFFICER EMPLOYING THEM, AND THE ACTS WHICH THEY PERFORM ARE HIS OFFICIAL ACTS. THE RELATION OF SUCH AN AGENT OR EMPLOYEE IS ONE OF CONTRACT, EVEN THOUGH HE RECEIVES A FORMAL APPOINTMENT; AND IT IS A PUBLIC EMPLOYMENT BUT NOT AN OFFICE.

THERE IS NO LAW SPECIFICALLY AUTHORIZING THE PERFORMANCE OF THE DUTIES OF SECRETARY OF THE WORLD'S COLUMBIAN COMMISSION, NOR OF DISBURSING AGENT FOR THAT COMMISSION. THE ACT OF APRIL 25, 1890 (26 STAT., 62), WHICH PROVIDED FOR THE WORLD'S COLUMBIAN EXPOSITION, ESTABLISHED A COMMISSION UPON WHICH WAS DEVOLVED THE DUTY OF EXECUTING THE PROVISIONS OF THE ACT. IN THE EXECUTION OF THE ACT THE COMMISSION ELECTED MR. DICKINSON AS ITS SECRETARY AND ALSO EMPLOYED HIM AS ITS DISBURSING AGENT, BUT SUCH EMPLOYMENT DID NOT CONSTITUTE HIM AN OFFICER OF THE UNITED STATES. * * *

ALTHOUGH IT WELL MAY BE THAT TO EFFECT THE PURPOSES AND TO FURTHER THE POLICY THERE INVOLVED THE CONGRESS USED THE TERM "CIVIL OFFICE" IN SECTION 1222 IN A BROADER SENSE OR A DIFFERENT CONNOTATION THAN THE WORDS "OFFICE" IN THE SAID ACT OF JULY 31, 1894, AND "OFFICER" IN SECTION 1765. REVISED STATUTES, YET, IN THE ABSENCE OF A CLEAR SHOWING OF PURPOSE OTHERWISE, IT IS TO BE CONCLUDED THAT SUCH TERM "CIVIL OFFICE" WAS USED AS DENOTING A PUBLIC POSITION OR EMPLOYMENT HAVING AT LEAST SOME OF THE GENERALLY RECOGNIZED ATTRIBUTES OF AN "OFFICE" AS DIFFERENTIATED FROM MERE PUBLIC EMPLOYMENT. FROM YOUR STATEMENT IN THE PRESENT CASE OF THE CONDITIONS UNDER WHICH GENERAL REYBOLD IS OFFERED TEMPORARY EMPLOYMENT WITH THE STATE OF DELAWARE UNDER THE STATE HIGHWAY COMMISSION TO ASSUME THE MANAGEMENT AND DIRECTION OF CONSTRUCTING A PARTICULAR PROJECT, UNDER THE GENERAL SUPERVISION OF THE COMMISSION, THERE WOULD APPEAR TO BE NONE OF THE USUAL ATTRIBUTES OF AN "OFFICE" INVOLVED, UNLESS THE PUBLIC IMPORTANCE OF THE WORK MAY BE VIEWED AS RAISING SUCH EMPLOYMENT TO THE DIGNITY OF AN OFFICE. THE PUBLIC IMPORTANCE OF THE DUTIES SOMETIMES HAS BEEN STRESSED IN CONJUNCTION WITH OTHER FACTORS IN DETERMINING WHETHER A CERTAIN POSITION IS AN OFFICE. HOWEVER, I DO NOT BELIEVE THAT SUCH AN ELASTIC MEASURE AS THE RELATIVE IMPORTANCE OF THE DUTIES TO BE PERFORMED STANDING ALONE, COULD HAVE BEEN INTENDED BY THE CONGRESS TO MARK THE LINE BETWEEN MERE EMPLOYMENT AND "CIVIL OFFICE" IN APPLYING THE GRAVE PENALTY OF SECTION 1222, REVISED STATUTES.

ACCORDINGLY, I DO NOT FIND ANY SUBSTANTIAL REASON TO DISAGREE WITH THE CONCLUSION OF THE JUDGE ADVOCATE GENERAL THAT THE PARTICULAR EMPLOYMENT HERE INVOLVED WOULD NOT BE A "CIVIL OFFICE" WITHIN THE CONTEMPLATION OF SECTION 1222, REVISED STATUTES. ALSO, AS GENERAL REYBOLD WOULD BE ON TERMINAL LEAVE, ACCEPTING SUCH EMPLOYMENT WOULD NOT APPEAR TO VIOLATE THE PROVISIONS OF SECTION 1224, REVISED STATUTES, AS AMENDED, SUPRA, AND IT DOES NOT APPEAR THAT THE STATUTES RELATING TO DUAL COMPENSATION OR OTHER STATUTES RESTRICTING PAY ARE INVOLVED. THEREFORE, YOU ARE ADVISED THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENTS OF SAID OFFICER'S ACTIVE DUTY PAY AND ALLOWANCES WHILE SO EMPLOYED ON HIS TERMINAL LEAVE PRIOR TO RETIREMENT, UNDER THE CONDITIONS STATED IN YOUR LETTER.