The Washington times., 1901-08-04
NO DUALISM In OFFICE.
Henry Gannett Cannot Draw Two
Government Salaries.
Absurd and Dangerous. Says Comp
troIIer TraceweIi. Would BE Such
n aRuIing-InwiIiing to Decide Con-
trnry to the VIII of Congress.

troIIer TraceweH. Would BE Such
RuIing-JnwiIiinRt to Decide Con-
trnry 10 the VIII of Congress.
Robert j. TraceweI Comptroller of the
Treasury i'm a decision given out yester-
day and rendered at the request of w. r.
Merriam Director of the Census. held
that there is to be dualism in office
under the act of Congress of July 81. 1894.
The case under consideration grew out of
Mr.. Merriams appointment of Henry
Gannett, holding a $500 place in
the Geological Survey, to act at the same
time as geographer of the Census Ohice,
at an additional salary of $500. AS Mr..
Gannett's duties i'll the Geological Survey
are supposed to occupy his entire time,
the Comptroller holds that he cannot be
paid another salary for services during
the same time as geographer of the Cen
sus Office. According to the opinion of
Mr. Tracewell, Mr. Gannett's appoint
ment is Illegal.
Director Merriam recently requested the
opinion Of the Comptroller as TO whether
he had authority to pay salary to the
geographer of the Census, notwithstand-
ing the provisions of the act of July 81,
1891 or any other statutory enactment
In stating the case Mr.. Merriam said:
THE act of Congress passed March 3,
1893. created the position of geographer at
an annual salary of $500.
ION March 15, 1899, MIR. Henry Gannett
was duly commissioned by me SeoSra-
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 in the employ
OF the United States Geological Survey
nd
he continued to hold that position and re-
ceive that salary after receiving his COM
mission in the Census Office. The position
in the Geological Survey was not ere
ated or its salary fixed either by the Con-
stitution or by Congress Under author
ity conferred upon the Director of the Ge
oioSical Survey, and with the approval of
the Secretary of the Interior, MIR. Gannett
was selected as a scientific employe Of the
Geological Survey and carried on the tenn
porary roll of that office.
The question / have submitted appears
to turn upon whether the word office in
the act OF 1891 is used in the technical,
constitutional sense OF that term. That
it is to be SO construed seems to me to
follow from your decision of June 20, 1898,
and from the Attorney Generals opinion
of August IS, 1895. If the word office in
the act is to be strictly interpreted then
it seems to me doubtful whether either
position held by Mr.. Gannett is an office
TO my paying the salary TO which IN de
fault OF such a bar he is entitled.
In his opinion on the case Mr.. Trace
well says:
Il am free to confess that in the light
of the foregoing decisions of the Supreme
Court, it might he argued with some show
of force in one case. and much more con-
vincingly in the other, that neither posi-
ton held by Mr.. Gannett is an office
within the meaning of Article II. section
of the Constitution, but none of these de-
cisions, nor any other | have been able
To find ccnvinces me 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 distinction must neceSsa rily
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 il WAS the in
tentiOn of Congress so To use it. Did Con-
gress use the word office in the act of
July 81, 1894, in its strict constitutional
sense2 ! think not Congress declares in
the act that no person shall hold two of
nces if salary or compensation attaches
to both, and il the salary or compensa-
ton of one of them amounts to the sum
of S2.500 per annum.
The Supreme Court has held that
person holding position having every at
tribute of a public Office except that his
appointment is not vested by Congress in
q head OF a department, meaning thereby
the head of one Of the chief executive
departments, is not a constitutional Off
Ger. though by no means holding that he
is not officer in some senses in which
the word may be used Blu: when Con-
gTess issued this blow at dGalism in office
il 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
" hich would follow such narrow con-
struction can be well shown by taking the
very cases now under consideration and
changing slightly By way of illustration
their actual conditions If instead of
your appointing Mr.. Gannett geographer
in the Census Office. another person, to
wit. one OF the two geographers specifi-
cally provided for in the act of June II,
1896 had been appointed TO that office, not
by you but by the Secretary of the Inte-
rior, pursuant to some provision of law
requiring an appointment by him as in
the case OF the act OF March !, 1889, pro-
vidiHg for the Eleventh Census in that
case it could not be disputed for mo-
Inent that the appointment would have
been Illegal, even under construction
limiting the meaning of the word office
to its strict constitutional sense. And
yet the only practical difference in these
cases would be in the manner the 'geog-
rapher in the two bureaus is appointed,
and not in any essential differences in the
places or their duties or compensation
The distinction between an office
within the meaning of the Constitution
Gus enough If one is looking for finely
drawn distinctions in the meaning of the
word office. but l do not see in that
word as used in the act of 1891 any such
finely drawn or narrow meaning. Con-
Sress was lesislating 40 prevent real
OF fanClsd evil, or to establish a policy
believed to be wise, and / am unwilling
to adopt construction or to make a r7li-
lhg which VIII tend to defeat that Cb-
sect-
while admitting that the grave cues
=
strained TO hold that the appointment by
you OF Mr.. GaRnett as geographar In the
Census Office Gas Illegal, aad that he =;
not entitled 10 any compensation under
the Census act Of March g. 1S.,9 supra II
! am wrong in so holding, Mr.. Gannett
has redress Of any wrong done him in
the courts II / am right. ] have only
sEut enc door to dualis;n in Office which
IN my opinion, Congress intended should
remain closed when il passed the act of
July J. 1SsI'