The Portland daily press., 1882-07-27
FULL TEXT
OF the Attorney Generals Decision.

WASHINGTON, July 81, 1882.
To the Hon. Charles j. Folger, Secretary o
the Treasury:
Sir-I have considered the question suggest
ed by Mr. A. Thomas, chief of division IN
thesoffice of the second comptroller, in his let-
ter of the 9th instant, in compliance WIN
vour request endorsed thereon under date OF
Sth instant by section six of the act of August
IL. 1876. chapter 287: All executive officers or
employes of the United States not appointed
by the President with the advice and consent
OF the Senate, are prohibited from requesting,
giving or receiving from any other officer or
employe of the government, any money, prop
erty, or other thing of value, for political pur-
poses, &C., and the enquiry is whether mem
Der of Congress is an officer of the government
within the meaning of this provision. IN
auestionably the station of members OF Con-
eress. Senator or Representatives. public Of
fee Taking these terms in broad and gem
eral sense, and the incumbent thereof must pc
regarded as an officer of the government IN
the same sense. thus provision is made for al
mipistering IAN oath of office to the members
of both Houses of Congress (section % and 50
Revised Statutes) So the words every per-
son appointed or elected to any Office of honor
or profit, neither in the civil, military or naval
service employed in section 1,756, Revised
Statutes, which prescribeS an oath OF once,
includes members of Congress. So in section
1,7S6, which provides that whenever any per-
son holding Office, except as member OF Con
gress, etc. The station of member of Con-
gress is distinctly recognized as an office. But
it seems that member OF congress is not an
officer of the United Ststes, in the constitu..
tional meaning of the term. In the case OF
Blount on an impeachment before the Senate
in 1899, the question arose whether Senator
was civil officer of the United States within
the puryiew of the Constition, and the. Senato
decided that he was not. This question arose
under the fourth section of the second article
of the Constitution. Other clauses of the Con-
stitution, observes Judge Storey in section 73o
of his work on the Constitution, would seem to
favor the Same result, particularly the clause
respecting appointments Of officers OF the Y ait
ed States BY the Executive. who is to commits
sion all the officers OF the United States: and
the sixth section of the first article. which de-
clareS no person holding any office under the
United States shall be member OF either
house during his continuance in office, and the
first section of the second article, which de-
clares that no Senator, nor Representative, nor
person holding an Office of trust or profit under
the United States, shall be appointed an elect
or. To these clauses may be added that IN sec
ton 8 of the 18th article which provides that
mo person shall be Senator, etc., who, hav--
ing previously taken an oath as member OF
Congress or as an officer OF the United States
These clauses show marked discrimination
between members of Congress and officers, the
latter term in the sense in which IL is there
used, not including legislators. In the penal
legislation of Congress, like Discrimination
is made. See, for example, the second,
third and sixth sections of the act of
February 26th 1858, chapter u, that
the words ssany officer of the United States"
found in the second section OF the act, dc not
include members of Congress, is manifest
from the enactment OF the third sectlon, m
which they are specially designated. In the
sixth section the same words are used IN
similar restricted sense. Compare also sections
1 ,781 and 1882, revised statutes, sections 5,450
and 5,451, revised statutes, and sections ,ooU
and 5501, revised statutes, in legislation OF THIS
character the word officer appears to be uni
formly employed in sense not more compre-
hensive than that in which it is employed In
the constitution as above, that is to say, not in
that broad and general sense which would IN
clude members Of the legislative branch OF the
government. Section of the act OF August
Is, 1876 being legislation of the same charac-
ter as that just referred to, it is fair to assume
that the word "officer' is there used in the
narrower sense adverted to, and that it does
not include member of Congress- The pro-
visions OF that section are intended to regulate
the conduct of the inferior officers of the ex-
ecutive department of the government, etc.,
with respect to these and other officers, etc.,
who are in the public service as ordinarily un-
derstood. To place construction thereon,
which would embrace among the latter, those
who are not officers In the common scceptance
of the word, and thus enlarge the penal effect
of those provisions, would not be warranted
by any sound rule of Interpretation upon these
/ am of opinion that men,
Der of Congress is not an officer of the govern
ment within tho meaning OF that section
am sir, very respectfully,
BENJAMIN HARRIS BREWSTER,
Attorney General.
some weeks since Mr.. A. Thomas, chief of a
division in the Second Comptroller's office OF
the Treasury Department, wrote letter to
Secretary Folger, asking the Secretary wheth-
or he could pay money to the Republican Con-
gressional Committee without violation OF
law, Secretary Folger submitted the question
to the Attorney General for an opinion, in the
letter:
Secretary Folgers Letter.
The following is Secretary Folger's letter to
Mr.. Thomas:
TREASURY DEPARTMENT,
OFFICE OF THE SECRETARY,
WASHINGTON, ID. c., 1882.
To Mr. A. THOMAS, Chief of Division, Sec
ond Comptroller's office.
SIR: Your letter of enquiry OF date of the
9th of July, 1882, reached me in due course
and had my consideration. Wishing to have
the deliberate opinion of the law Office of the
government on the point stated by you, and
that that opinion would be more sat
to all than any view might take OF
the subject, Il referred your letter to the hoonra
BILE the attorney general for his determination.
[ have to-day received the opinion of that Off
clal. The attorney general states the question
to be whether member of Congress is an off
Ger of the government, whether the meaning
of section of chapter 283 OF the act OF the 10Th
of August, 1876 (revised statutes sup. page 245)
that section is in these words: ALI executive
officers or employees of the United States not
appointed by the President with the advice
and consent of the Senate are prohibited from
giving to, or receiving from any
other officer or employs OF the government any
nj har
political purposes, etc. The attorney general
reaches the conclusion that member OF Con-
gress is not an office of the government with
in the meaning of that section, and to sustain
his view he cites Blounts case, wherein it was
so held, and compares with this section, and
with each other, sections % and 80, 1,756 1,781,
!, 1882, 1,786, $3.50, 5,451, $500, 55O1, revised
statutes; LIST and 4th sections, I'd article 9th Sec
ton, LIST article, 18th section, 14th article,
United States constitution; 133 Story on constl-
tuition, second, third and sixth sections, act OF
Feb rs, 1858, chapter 81. The further conclu-
sion follows that executive officers and en-
ployes Of the United States, not appointed by
the President with the advice and consent of
the Senate, are not liable to the pains and pen
alties of section 6, of the act OF August, 1876,
for the act of giving to a member OF congress
money, property, or other things OF value.
You are such an officer or employe, and the eff
feet of the opinion of the Attorney General is
that you may give to Chairman Hubbell IN
compliance with his request, without running
foul OF penal statute. / might stop here, as
the very question that you put is explicitly
answered, and, as you, in our letter, express
a willingness, nay, more, desire, to give as
asked, But 1 will take this place to say that |
wish it felt, throughout the Treasury Depart
ment, in all its ramific atoms of the service,
that no servant of the United States therein
need feel the slightest pressure upon him to
give if he does not wish to give. 1t he has
that belief in the soundness of the principles
of the Republican party as to desire their sus-
tentation and success, and to be willing and de-
sirous of showing his faith by his work. and
feels that he is able to aid, let him give of his
substance or of his income, as he sees fit; or if
he is of other political faith, or the claims of
family, or the needs of self pinch his purse,
and he wishes not to give, let him freely re-
fran therefrom. l would have him think and
feel, and do as, if in the religious meeting
house of his choice the preacher should lay be-
fore him the needs of some cause. II it was
commended to his judgment, and he felt able
to III ire of his self, he would give; If it were
otherwise he would hold fast that which was
his own. So, absolutely SO, in the matter at
hand. Let it be understood and felt by all
who hold place under me, that, whichever
way they may take it, they may take it unmo-
Tested by me. Therefore, 1 say as l mean;
will do as say.
Very respectfully,
CHARLES j. FoLGER,
Secretary.