The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-08-03

o
rendered at the request Of w. r. Merriam,
I tho Director OF the Census. held th4J there
can be no duaIism in office under the act
of Congress of July 81. 1894. and incidental
/ Iy referred TO tie view held 10y Congress
in prohibiting such alleged evil The case
al hand grows out Of the appointment by
Mr. Merriam Of Henry Gannett- Of the
{ Geological Survey TO the position Of
geograrher Of the Census Bureau The
salary Of Mr. Gaunett was S2.5eo in each
position Under Mr. TraceweH-s opinion
Mr. Gaunctt caluot be paid for his ser
vices as geographer Of the Census Blu
reau.
The Director Of the Census recently re-
quested the opinion Of the Comptroller Of
The Treasury as 20 whether ne had aJs-
thority to pay a salary TO the geographer
Of the Census. notwithstanding the pr0vi-
sions Of the act Of July 81 1891, or any
other statutory enactment In stating the
case AR Merriam said.
The act Of Congress passed March 8.
lSg9. created the position of geograpner at
an annual salary of S2-5o1
'On March Is, 1889 Mr. Henry GaHnctt
was duly commissioned by me ReOgra-
pher Of the Census. Since that date he
has performed the duties Of the position,
but has received no salary. At the time
Of his appointment he was I'm the employ
Of the United States Geological Survey
al a salary Of more than $500 year. and
he continued 10 hold that position and re-
ceiye that salary after receiving his com
en- The Geological Survey was not ere
ated or its salary fixed either by the Con-
stituuou or by Congress Under author
ity conferred upon the Director OF the &c
OIOEicaI Surrey. and with the approval of
the Secretary OF the Interior. Mr.. Ganuett
was selected as a scientific cmplOye OF the
Geological Survey and carried on the tenn
porary roll of that office.
The question Z ha e submitted appears
To turn upon whether the word office in
the act Of 1895 is used in the technical.
constitutional sense of that term. That
it - TO be SO construed seems TO me 10
follow from your decision OF June % ls9S,
and from the Attorney Generals opinion
of August Is, 1895. If the word Office in
the act is 10 be strictly interpreted. then
IT seems TO me doubtful whether either
position held by Mr.. Gauuatt is an office,
10 my Lying the salary 10 which m de
fault OF such bar he is entitled.
In his opinion on the case Mr. Trace
wei says:
II am free to confess that In the light
Of the foregoing decisions OF the Supreme
Court. IL might be argued with some show
OF force i1 one case. and much more con-
viucingiy ln the other. that neither posi-
tion held by Mr.. Gannett is an 'once
within the meaning of Article II, section
OF the Constitution. but none of these de
CisionS. nor any other ] have been able
to find couviuCes mo that they are not
both offices within the meaning OF the act
under construction. The distinction drawn
by the court between constitutional Offices
and those that are not constitutional,
while doubtless correct and persuasive
when such "a distinction must necessarily
be drawn. loses much OF its force if We
admit that Congress ever uses the word
Office IN any other than its constitutional
sense. especially in cases where there is
great doubt as TO whether it was the in
tcutiou Of Congress so To- use il. Did Con-
crcss use the word office in the act of
July g. 1894 IN its strict constitutional
senseZ I think not Congress declares in
the act that no person shah hold two of
fees II salary or compensation attaches
10 both, and if the salary or cOmpensa-
tian Of one Of them amounts 20 the sum
OF $2.50o per aunun-
The Supreme Court has held that a
person holding position having every at
tribute Of a public office except that his
appointment is not vested by Congress in
a head Of "A department meaning thereby
the head Of one Of the chief executive
departments. is not constitutional Off
Ma p
is not an officer in some senses N which
the word may be- used But when Con
Rress issued this blow az dualis'n in office
it would defeat the object thus intended
to hold that its meaning IS restricted To
Offices within the meaning Of the Consti-
tuition The absurd and dangerous results
which would follow such a narrow con-
structiou can DE well shown 10y taking the
very cases now under consideration and
changing slightly by way of Illustration
their actual conditions. II. instead of
your appointing AIR GaEueJt geogTapher
iu the Census Office, another person, To
wit one of the two e s~graphers specif-
caIly provided for ina tx act of June II,
1886. had been appointed to that office. not
by y0u but by tho Secretary of the Inte-
rior. pursuant Co some provision Of law
requiring an appointment by him as in
vidiug for the Eleventh Census. IN that
case fl could not be- disputed for a mo-
meut that the appointment would have
bee @ Illegal. even under a construction
limiting the meaning of the word office
to its strict constitutional sense. And
Vet the only practical difference in these
cases would be iu the manner the -geoE-
rapher' I'm the two bureaus is appointed
and not iu any essential differences in the
places or their duties or compensation.
THE distinction between su office
withif. IN meaning Of the Constitution
ana one not within it's meaning is obvi-
Gus enough if one rs looking for finely
drawn distinctions I'm the meaning OF the
word office but 1 do NOT see On that
word as used in the act oT 1924 any such
finely drawn ur narrow meaning. Con-
gr,-~ WaS ltGisIatiug 40 prevent a real
OF fauci,J evil. OF 20 establish policy
believed to Doe wisy. auI ] ann unwilling
Co adopt a. construction ur To make a ruI-
ug which viii tend To- defeat that OBJ
ject
-NhiI, admitting that the grave ques-
tiou is not free from doubt. ] feel con
strained Co mold that the appointment hy
yoJ of Mt Gaun,tt as geographer in tue
not ,rtitI,d 60 any compensation under
the Census act Of March o. lSp. supra. 10
I ann wrong in $50 holding Mr. Ganuett
has redress of any wrong done him iu
the courts. II ! am right. ] have only
shut one door 20 du3IiSm I'M office. which
I'm my opinion. Congress intended should