Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1897-08-01


Washington, July 81. - Bowler mas
knocked the civil service law endways'
so far as deputy United States marshals
are concerned. District judges IN west
Virginia and North Carolina and llil-
NOS have stopped the new marshaIS
from appointing their own deputies ue-
Gliding that the old deputies are protect
ed by the civil service law and must be
retained. Comptroller Bowler oyerruleS
the district Judges in a sweeping opin-
ion. He holds thta deputy marshals
are personal appointees OF the marsha
ion. he holds that deputy maTshdls
unless reappointed and sworn IN again.
Furthermore he directs that the ais
bursting officer can not pay the old de-
puties unless thus reappolnted.
The situation which has called out
this highly interesting opinion from
Comptroller Bowler occurred in India
ma When Marshal Hawkins went OUT
of office he had a deputy named John n.
Foley. The deputy continued TO dls-
charge the duties under Marshal her-
cbeyal without reappointment and With
ont taking the oath, so far as the record
showed. The Department of Justice
called for an opinion as to whether Fo-
lev could be paid any salary after MT.
Hawkins went out of Office. The comp
troller has decided that the department
is mot authorized to pay Mr.. Foley any
compensation.
In the course of his opinion Mr.. Bow
Ter Laws down these limitations on the
civil service law:
"That the term of all deputy marshals
expired with the termination OF the Of
fee of the marshal who appointed them,
except for certain purposes specifically
provided by the statutes has never been
doubted so far as I know. That such
was the case seems clear from the very
nature Of the position which these de-
putv marshals held and from the provl-
/ sions OF the statutes relating to thelr
/ appointment. powers and duties. by
section 7SO every marshal was author
ized to appoint deputies at will. BY
( section 7S2 these deputies were requlr-
/ ed TO take as 'marshars deputy the same
/ oath as is required of the marshal. BY
] EPCT1On lN0 every lldt SiAeil WeiS ANNN'AA ~
70 give a bond for the faithful perform
,.,se ~ tl,s 5,-tiss ,f F1fsenffiSs - - ''-y,5
a-l,e u. Vi siS .;iSss4 anu tneir deputies shall
/ have each State the same powers as
I sheriffs have.
by section 7S9 it was provided that
in case of the death Of any marshal his
/ deputy or deputies shall continue in Of
/ flee unless otherwise specially removed,
and shall execute the same in the name
! Of the deceased, until another marshal
( Is appointed, as provided in this chap
ter and duly qualified and the estate
! Of the marshal and the sureties on his
bond will be responsible for the defaults
and misfeasance of these deputies while
| so acting.
PERSONAL APPOINTEES.
9TH persistent use of the words his and
their deputies seems clearly to indicate
| the personal relation which the deputy
| held to the particular marshal who ap-
| pointed him and whose agent and servant
he was and who had no duties except
those prescribed for him by his principal.
| If there can be any doubt upon this ques-
tion. the provisions of section 7S9, that, in
the case Of the death of a marshal, his
deputies shall continue in office and exc
cute the same in the name of the marshal,
and the provisions of section 100, that
marshals deputies. when the marshal is
removed from office or when his term ex-
pires shall have the power to execute such
precepts in their hands at that time. clear
" set the matter at rest for if the depu-
ties Of marshal continued in office af-
ter the marshal ceased to be such, either
10y death. removal, or the expiration of
his term. there would have been no neces-
sity for the enactment of sections 7S9 and
100
1T has been suggested that office depu-
" marshals are now in the classified civil
service of the United States under the or
ders of the President. This. however. IN
my opinion. in no way affects the question.
Under the act TO regulate and improve the
civil service of the United States. of jan
uary 16. 1883. the power Of the President TO
designate those who are to be included in
the classified civil service is not limited TO
officers of the United States in the consti-
tutional sense Of the word officer He
mayalso include those holding places or
employments in the public service. and
there is nothing therein from which il can
be implied that the extension of the clas-
dences of their appointment or employ
ment is TO extend the term provided by
law for any officers or employees so CLASH
fed
The statutes do not prescribe the meth
Cd by which deputy marshal is to be ap-
pointed. while section 10. of the act of
May 2S. 1896 refers 10 office deputies sim
ply as being employed by the marshal
II is no doubt customary 20 give deputies
formal commissions or other written evil
dences OF thei appointment or employ
ment. but the execution Of such written
evidence is not the appointment or en-
ployment itself.
If Mr.. Foley has continued to perform
the duties OF an Office deputy Of Mr.
Kercheval. as you state. it may be that he
has been appointed or employed by Mr.
Kercheval. but even if he has been so ap-
pointed or employed. he cannot receive
compensation unless he has taken a new
oath. for a new oath is required upon ev-
cry new appointment. while 1t is well es-
tahlished that where an oath is pre-
prescribed as prerequisite TO the com
plete invss;iture of an Office. an appointee |
who fails TO take such oath as a de facto |
officer is not entitled to claim compensa-
tion from the government.
For the reasons above given. il is clear |
that yob are not authorized 10 pay Mr.. /.
Foley any compensation since Mr.. Haw- |
kins term of Office expired. unless it shall |
appear that he has been appointed or en-
pRyed by Mr.. Kercheval, and has taken
new faith as such deputy.
sR. B. BOWLER,
Saae.Ssi. Comptroller"