34 First Comptroller's Office, Treasury Department. After a careful personal examination of the evidence and the law governing the case, I am of the opinion that the charges in this case are not sustained. I, therefore, dismiss them, and transmit herewith such of the papers as properly belong to the files of your office. Very respectfully, H. M. TELLER, Secretary. IN THE MATTER OF THE AUTHORITY OF THE HEAD OF AN EXECUTIVE DEPARTMENT AS TO GRANTING A LEAVE OF ABSENCE TO A CLERK OR EMPLOYÉ THEREIN.-CLERK'S ABSENCE CASE. 1. The evils against which the act of March 3, 1883 (22 Stat., 563, sec. 4), was designed to provide, were (1) the absence of clerks and employés from their duties for more than thirty days, in any one year, with the consent of the head of the department and with right to salaries, and (2) the payment of salaries to clerks and employés, absent without the authority of the head of the department. 2. The year mentioned in section 4 of said act is the calendar year. 3. The absence of a clerk or employé under process as a witness for the Government in a case in court is not an evil, and, hence it is reasonable to infer that the act of March 3, 1883 (22 Stat., 563, sec. 4), was not designed to apply to such absence. 4. "Cases clearly not within the mischief intended to be remedied" by a statute, are excepted from its operation. 5. The act of March 3, 1883 (22 Stat. 563, sec. 4), construed in connection with section 850 of the Revised Statutes, does not deny the right of a clerk or employé in an executive department to the payment of his salary, when absent as a witness for the Government in a case in court, although such clerk or employé has already been absent thirty days during the year in which he may be a witness. 6. The head of an executive department may, notwithstanding said act of March 3, 1883, (22 Stat., 563, sec. 4), grant a clerk or employé in his department a leave of absence without pay. 7. A leave of absence without pay, when granted under a mistake of fact, may be modified to permit payment of salary. Sec. 850 of the Revised Statutes provides, as follows: "When any clerk or other officer of the United States is sent away from his place of business as a witness for the Government, his necessary expenses, stated in items and sworn to, in going, returning, and attendance on the court, shall be audited and paid; but no mileage, or *The following regulation is in force in the Interior Department: DEPARTMENT OF THE INTERIOR, ORDERED: That whenever an attorney is charged with improper practices in prosecuting claims before the Pension Office the Commissioner of Pensions shall investigate the matter, giving such attorney due notice, together with a copy of the charges against him, that he may be heard in the premises. When the investigation shall have been concluded, the facts shall be reported to the Secretary of the Interior for consideration, together with the testimony upon which it is based, and the recommendation of the Commissioner. During the investigation into the conduct of an attorney for improper practices, he shall be recognized in claims before the bureau in his capacity as attorney, unless, for special reasons communicated to the Secretary of the Interior, he shall be suspended. H. M. TELLER,' Secretary Leaves of Absence in Executive Departments-Clerk's Absence Case. 35 other compensation in addition to his salary, shall in any case be allowed." The act of March 3, 1883 (22 Stat., 563, sec. 4), provides: "That hereafter it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to require of all clerks and other employees, of whatever grade or class, in their respective departments not less than seven hours of labor each day, except Sundays and days declared public holidays by law, or executive order: Procided, That the heads of the departments may by special order, stating the reason, further extend or limit the hours of service of any clerk or employee in their departments respectively, but in case of an extension it shall be without additional compensation, and all absence from the departments on the part of said clerks or other employees, in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." During the calendar year 1883, Matthew Gering was a clerk of class one in the Surgeon-General's Office, Department of War, with an annual salary of $1,200 payable in monthly instalments. November 23, 1883, he was served by the Marshal of the District of Columbia with a summons, issued November 17, 1883, by the clerk of the United States district court in Dakota, to appear at Yankton as a witness "for the Government" in a cause in said court. The Secretary of War granted him a leave of absence without pay as clerk for twenty days from November 26, 1883, and he proceeded as a witness to Yankton. On December 19, 1883, he, having been necessarily absent twenty days, was paid by the proper marshal "his necessary expenses, in going, returning, and attendance" on said court, and returned. He had been previously absent for thirty days during said year by leave of the Secretary of War. December 26, 1883, he applied to the Secretary of War to change the order for leave of absence without pay to leave of absence with pay, on the ground that his leave of absence without pay was asked on the mistaken supposition that he was entitled to fees as a witness and mileage in said case. December 28, 1883, this application, to change said order, was referred by the Secretary of War to the First Comptroller "for decision" thereon. DECISION BY WILLIAM LAWRENCE, First Comptroller. Prior to the act of March 3, 1883 (22 Stat., 563, sec. 4), the head of an executive department could, on the application, and with the consent of a clerk therein, grant him a leave of absence for a fixed or indefinite time, with or without right to payment of salary (Bender's case, 1 Lawrence, Compt., Dec., 2d ed., 318; Eveleth's case, 2 Id., 20; Leave. of-Absence case, Id., 566). A usage had grown up, by which a leave of absence with pay was granted to a clerk for thirty days in every year, sometimes with ten days additional to attend the annual election at the place of his residence, and, generally, resignations of clerks and employés were accepted to take effect in the future with a month's leave of absence, with pay. Under the law, at that time, clerks were entitled to salary during all absences, whether with or without cause; and the only remedy for absence without cause or permission was by removal from office (Sleigh's case, 9 Ct. Cl., 369). The evils against which the act of March 3, 1883, was designed to provide, were (1) the absence of clerks and employés from their duties for more than thirty days in any one year with the consent of the head of the department and with right to salaries, and (2) the payment of salaries to clerks and employés absent without the authority of the head of the department. If the act of March 3, 1883, stood alone, and should be construed literally, it would deny the right of the claimant to the payment of salary during his absence as a witness; for it declares that : "All absence from the departments on the part of said clerks or other employees, in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." It is settled by usage, that the year mentioned is the calendar year ; and the claimant was absent on leave thirty days during the calendar year 1883, before he was absent as a witness. The absence of a clerk under process as a witness "for the Government" in a case in court is not an evil, but a performance of duty required by law; and, hence, it is reasonable to infer that the statute was not designed to apply to such absence. This results from a well settled rule of construction, that 66 cases clearly not within the mischief intended to be remedied " by a statute are excepted from its operation (Bishop, Written Laws, 190 d). Besides, the act of March 3, 1883, is to be construed in connection with section 850 of the Revised Statutes, which, by inference, if not in clear terms, gives to a clerk absent "as a witness for the Government" a right to his salary" while so absent. This section of the Revised Statutes recognizes the right to salary, and a right so recognized is in effect affirmatively secured (Otto's case, 3 Lawrence, Compt. Dec., 297; Bliss's case, post, citing Postmaster-General v. Early, 12 Wh., 148). The claimant did not lose his right to salary by reason of his absence "as a witness for the Government." As his application for a leave of “absence without pay" was made under the belief, that he would receive the usual fees and mileage of witnesses (Rev. Stat., 848, 1883), the Secretary of War may very properly so modify the order for such leave of absence as to give it the effect of a leave with right to payment of salary. If it should be held, that the act of March 3, 1883, absolutely prohibits the head of a department from giving a clerk therein a leave of absence for more than thirty days in any one year, except in case of sickness, then the order made by the Secretary of War was void; yet the claimant is entitled to the payment of salary without any modifica tion of such order. But the proper construction of this act is, that the head of a department may, for reasons by him deemed sufficient, grant to a clerk or other employé therein a leave of absence without pay, and without limit as to time. The statute does say, that: "All absence from the departments on the part of said clerks or other employees, in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." This simply means that no leave of absence from duty with a right to pay shall be granted in excess of thirty days, except in case of sickness. The statute deals only with cases of absence from duty with pay. The granting of leaves of absence without pay is not generally or necessarily an evil, and, hence, the statute was not designed to interfere with the power to grant such leaves. Any other construction would result in great inconvenience, if not lead to absurd consequences, and these should be avoided, if the words of a statute may be reasonably so interpreted (Bishop, Written Laws, 82, 90, 93, 200). Thus, a clerk, who had been absent for thirty days from a department, might be required. by the process of a court to attend for a day, a week, or even months, as a witness in a suit between private parties, in which he would be paid per diem and mileage compensation. If the law does not permit a leave of absence in such case at all, the witness must either unlawfully disregard the process of a court, or, by obeying it, violate the law, which denies him an authorized or lawful absence. He would find himself in a position to exclaim "Which way I fly is hell." So, the business of a department may be such, that for three months, more or less, in any year a large number of clerks may be without employment. If they cannot be, as the popular phrase is, "furloughed," or granted a leave of absence without pay, they must be retained and paid in idleness, or dismissed from the service, and in the latter case, their places must be supplied, when necessary, with new and inexperi enced clerks under the Civil Service Act of January 16, 1883 (22 Stat., 403). And so, by reason of the sickness or death of relatives, and in other cases the impulses of humanity, social usages, and legitimate public sentiment may require the absence of a clerk or employé. It is almost incredible that Congress intended that there could be no lawful absence in any of these cases. The argumentum ab inconvenienti carries persuasive weight. As the authority of the head of a department to grant a leave of absence without pay was unquestioned prior to the act of March 3, 1883, such authority is not to be deemed as taken away by this act, unless its terms clearly so require, and they do not. It does not in terms take away absolutely and entirely any power, but only limits the existing power, to grant a leave of absence from duty with pay. It does not, in terms or purpose, limit the power to grant a leave of absence without 38 First Comptroller's Office, Treasury Department. pay. Nor does it profess to repeal the prior law giving a power to grant leaves of absence without pay, and there is nothing in it from which to infer a repeal by implication. Such power must continue to exist, unless it is clearly repealed; and it is not. The Secretary of War will be advised that he may lawfully modify his order, so as to permit payment of salary to the claimant.* TREASURY DEPARTMENT, First Comptroller's Office, January 19, 1884. IN THE MATTER OF THE AUTHORITY TO EMPLOY AND PAY A UNITED STATES DISTRICT ATTORNEY TO PERFORM SERVICES NOT REQUIRED OF HIM AS A PART OF HIS OFFICIAL DUTY.-BLISS'S CASE. 1. It is no part of the official duty of a United States district attorney to appear in a State court to attend to suits, although the United States may be directly interested therein, except in cases specially provided for, as in section 771 of the Revised Statutes. 2. The proviso to section 3 of the act of June 20, 1874 (18 Stat., 109), declares "that this [section] shall not be construed to prevent the employment and payment by the Department of Justice of district attorneys as now allowed by law for the performance of services not covered by their salaries or fees." There was in fact no law then existing which authorized the employment or payment of district attorneys "for the performance of services not covered by their salaries or fees," that is, for the performance of extra-official services. Held: (1) This proviso, by recognizing the authority to employ and pay a district attorney for extra-official services, must be construed as a grant of such authority. (2) The inhibitions of section 1765 of the Revised Statutes do not apply to payment for services rendered in performance of such employment. (3) The authority so granted is limited to the employment and payment for services rendered in business or cases in which the United States is interested, and as to which no district attorney is charged with any official duty. 3. Section 299 of the Revised Statutes does not give authority to employ a district attorney to render extra-official services. *Since this case was decided, the question has arisen, whether the Secretary of the Interior can, under the act of March 3, 1883 (22 Stat., 556, 563), detail a clerk in the Department of the Interior "to investigate fraudulent land-entries," and, during the time of his absence for a greater period than thirty days in any one year, pay his necessary expenses and also his salary as clerk. This act (22 Stat., 556) appropriates money "for the actual expenses of inspectors, while on duty, and of clerks detailed to investigate fraudulent land-entries, trespasses on the public lands, and cases of official misconduct." The same act (22 Stat., 563, sec. 4) provides, that "all absence from the departments on the part of thirty days in any one year, in excess of clerks shall be without pay." The "absence" to Such act does not inter which this act relates, is absence not on duty, or from duty. fere with the power of the head of a department to assign a clerk therein to make authorized investigations wherever required, or with the power to pay his necessary expenses and salary as clerk during absence on the duty. (Swamp-Land case, 2 Lawrence, Compt. Dec., 2d ed., 136.) The act of August 5, 1882 (22 Stat., 255, sec. 4), prohibits "all details of *, from places outside of the District of Columbia for duty within" said District. (Substitute case, 3 Lawrence, Compt. Dec., 345.) But there is no statute which prohibits generally all details of clerks in any department to make an authorized investigation elsewhere. # officers, * |