The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-07-31
DEPUTY MARSHALS' PAY
QUESTION SETTLED BY THE CON-
TRoLLER OF THE TREASURY.
John L. Foley Not Entitled to Pay
Since the Expiration of Mar
shall HaVvkins's Term.

The civil-service question in the office of
the United States marshal has taken a new
and interesting phase. Some months ago
the deputies obtained from the Civil-service
Commission an opinion to the effect that
they were protected by the civil-service law.
Later the question of pay came up and
Senator Turpie asked an opinion from Mr.
Bowler. controller of the treasury. Mr.
Bowler replied that they could not draw
pay. Within the past month the district
judge of Kentucky has rendered a decision
10 the effect that office deputies of the
marshals are not in the classified list, but
district judges of West Virginia, North
Carolina and Illinois have decided that they
are. In order to get a ruling here Charles
2. Taylor, one of the office deputies, APP
piled to Judge Baker for an injunction 70
prevent Marshal Kercheval from remov-
ing him, but the case went over to Sep
tember
In the meantime the Department of JUS
tice asked of Controller Bowler an opinion
| as to whether or not it could pay John h.
Foley. the chief deputy in Marshal Ker-
chevals Office, and Mr.. Bowler has just
| rendered an opinion that it cannot pay
Foley since the expiration of Marshal
Hawkins's term. The receipts, however,
Rod that has since elapsed and have been
signed and returned, though the money has
not yet arrived. The rulings of the con-
troller are final in all matters of pay, and
the only way it can be overthrown Is by
decision of the Supreme Court In his
opinion the controller says:
That the term of all deputy marshals
expire with the termination OF the oftce
or The marshal who appointed them, except
Tor certain purposes specifically PROVIDED
by the statutes, has never been doubted so
far as l know. That such was the case
seems clear from the very nature OF the po-
sition which these deputy marshaIS helo
and from the provisions OF the statutes re-
lating to their appointment, powers ana
duties. BY section $50 every mdrshdi WAS
authorized to appoint deputies at Will py
Section 7S2 these deputies We're required 70
take as 'marshals deputy the same oaLn
as is required of a marshal. by 0ectlon 100
every marshal was required 10 give ponu
for the faithful performance OF the duties
of his office by himself and his depulles'
By Section 1888 the marshals and their depu-
ties shall have in each State the same pow
ers as sheritfS have.
by Section 1889 it was provided that in
case of the death Of any marshal ms Dep
Uty or deputies shall continue IN once uH-
less otherwise specifically removed ana
shall execute the same in the name or the
deceased, until another marshal is APP
pointed. as provided in this chapter, and
duly qualified and the estate OF the mar
shall and the sureties on his bond VIII De
feasance of these deputies while so acting,
THE persistent use of the words his and
their deputies seems clearly to lndlcate
the personal relation which the deputy hel6
to the particular marshal who appointed
him and whose agent and servant ne was
and who had no duties except those pre-
scribed for him by mis- principal II there
can be any doubt upon this question the
provisions of Section 7S9, that, in the case
of the death of a marshal, his deputies
shall continue in office and execute the
same in the name of the marshal ana the
provisions of Section 700, that marshal
deputies, when the marshal Is removes
from office or when his term expires, shall
have power to execute such precepts IN
their hands at that time, clearly, set the
marshal continued in office AFTER the mar
shall ceased to be such, either by death,
removal or the expiration of his term there
would have been no necessity Ior lhe el'-
actment of Sections 7S9 and 79O
ut has been suggested that oIilce dep oi,t
marshals are now in the classlhed civil
service of the United States under the Or
ders Of the President This, however in my
opinion. in no way affects the quest on
civil service of the United states, OF Jan
l6 1888, the power of the President TO des-
ignate those who are to be INCLUDED IN
the classified civil service is not limited TO
officers Of the United states In the consttu-
tionaI sense of the word officer. He may
also include those holding places or en-
Payments in the public service anu tHeIe
is nothing therein from which II can pe
implied that the extension OF the cIasslIleu
civil service to any office or employment Is
to extend the term provided by law Tor
any officers or employees so ciasslheo.
THE statutes do not prescribe the method
by which q deputy marshal IS 10 ne APP
pointed while Section 10. of the act OF
Nav % 1886 refers to office deputies simply
as being employed by the marshal 1t IS
no doubt customary to give deputies formal
commissions or other written evidences or
their appointment or employment, but the
execution of such written evidence IS not
the appointment or employment Itself
IF MIR Foley has continued TO perform
the duties of an Office deputy OF MI hercH-
eVal, as you state, it may be that ne mas
been appointed or employed by MI herch-
eVal. but even If he has been so appointed
or employed he cannot receive compensa-
ton unless he has taken new oatn, Tor
a new oath is required upon every new APP
nojntment while it is well established that,
where an oath is prescribed as prerequi-
site to the complete investiture OF an Of
fee. an appointee who fails to take such
oath as a de facto officer is not entitled
to claim compensation from the govern
"For the reasons above given, 1t Is clear
that YOU are not authorized to pay MT
Foley any compensation since Mr.; HaW-
kins's term of office expired, unless 1t snail
anpear that he has been appointed OF en-
pioyed by Mr.. kercheval, and mas taken
a new oath as such deputy
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