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it has been repeatedly held by my predecessors that when a request is made for an opinion of the Attorney-General the question of law upon which an opinion is desired should be specifically formulated, and should be accompanied by a definite statement of facts, and the Attorney-General can not investigate the papers in the case for the purpose of ascertaining such facts. (20 Opin., 614, 699, 711; 21 Opin., 201, 220, 506; 22 Opin., 312, 351, 498.) I must therefore decline to answer your request for an opinion in the present case, and I have the honor to return herewith the papers transmitted by you. Very respectfully,
HENRY M. HOYT,
Acting Attorney-General. The SECRETARY OF THE TREASURY.
COMMISSIONERS OF SOLDIERS' HOME_VACANCY.
When the place of any chief of bureau named in section 10 of the act of
March 3, 1883 (22 Stat., 565), has been temporarily filled under sec. tion 178, Revised Statutes, the person so temporarily acting may perform the duties of such officer as a member of the board of commissioners of the Soldiers' Home, just as he performs the other duties of the officer in whose stead he is acting.
DEPARTMENT OF JUSTICE,
August 7, 1901. Sir: I have the honor to reply to the note of the Acting Secretary of War, dated July 29, 1901, asking my official opinion upon the case there stated.
Section 10 of the act of March 3, 1883 (22 Stat., 561-565), provides that,
“The Board of Commissioners of the Soldiers' Home shall hereafter consist of the General in Chief commanding the Army, the Surgeon-General, the Commissary-General, the Adjutant-General, the Quartermaster-General, the JudgeAdvocate-General, and the Governor of the Home; and the General in Chief shall be president of the board, and any four of them shall constitute a quorum for the transaction of business."
It appears that four members of this board are absent, and will be for a considerable time, in the Philippines, thus leaving the board without a quorum for the transaction of business, and the question submitted is “whether the terms of sections 178 and 179, Revised Statutes, taken in connection with section 10 of the act of March 3, 1883 (22 Stat., 565), authorizes the officers who succeeded to the duties of the heads of bureaus above named, to sit as members of the Board of Commissioners of the Soldiers' Home during the absence of the heads of bureaus in question."
The previous section, 177, makes provision in case of the death, resignation, absence, or sickness of the head of a Department; and section 178 reads:
"In case of the death, resignation, absence or sickness of the chief of any bureau or of any officer thereof whose appointment is not vested in the head of the Department, the assistant or deputy of such chief or such officer, or if there be none, then the chief clerk of such bureau shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such chief or of such officer until a successor is appointed, or such absence or sickness shall cease.”
And section 179 reads as follows:
“In any of the cases mentioned in the two preceding sections, except the death, resignation, absence or sickness of the Attorney-General, the President may, in his discretion, authorize and direct the head of any other department or any other officer in either department, whose appointment is vested in the President by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease.”
The real question, as applicable to the case in hand, is when the chief of a bureau is, under Revised Statutes, section 178, temporarily succeeded by another officer, to what class of duties does he thus succeed? Does he succeed to and perform simply the duties of the absent chief, which relate to that particular bureau, or does he succeed to and perform all the duties of that chief, which devolve upon as such chief of the bureau? So far as other duties are
personal to such chief of bureau, the former is probably the case; but so far as such other duties relate to the office which he holds, and are to be performed by whoever holds that office, the case may be different. For example, the AdjutantGeneral may hold also some other office, distinct from that, and which he filled personally and not as Adjutant-General. In such case the person who succeeded him temporarily as Adjutant-General, would not, by virtue of that, succeed him in the other office also; but, where the other office is filled and its duties performed by whomsoever may be for the time being the Adjutant-General, a different question is presented. In such a case it is the officer and not the man who fills the other office and performs its duties. To continue the same illustration, it is quite clear that in case of the death or resignation of the Adjutant-General, his successor would be, at once, a member of this Board of Commissioners, because that place pertains to that office. It is difficult to see why the same rule should not prevail in case of a temporary vacancy filled by one who exercises all of the functions of Adjutant-General.
Using still the same illustration, it may be said also that, although absent, the Adjutant-General continues to be such officer, and, as such, he remains a member of this Board of Commissioners, while his official duties are performed by another who temporarily fills his place and acts in his stead, and who, in doing so, performs also the duties of the AdjutantGeneral as a member of this board, just as he performs the other duties of that office. This conforms to both section 10 of the act of March 3, 1883, which requires the AdjutantGeneral to be a member of this board, and with Revised Statutes, section 178, which provides that, in the absence of such officer, his duties shall be performed by the one appointed therefor, and I think this is the correct view of the matter.
The question is not free from difficulty, but, upon the whole, I am of opinion, and so advise you, that when the place of any chief of bureau named in section 10 of the act of March 3, 1883, above referred to, has been temporarily filled under Revised Statutes, section 178, the person so temporarily acting may perform the duties of such officer
as a member of the Board of Commissioners of the Soldiers' Home, just as he performs the other duties of the officer in whose stead he is acting. Respectfully,
P. C. KNOX. The SECRETARY OF WAR.
POSTAL CLERK-DEFALCATION-LIABILITY OF SCRETY.
Where a postal clerk has given the bond required by section 3 of the
act of June 13, 1898 (30 Stat., 440), the condition of the bond being that the principal shall faithfully discharge all duties and trusts imposed on him either by law or by the rules and regulations of the Post-Office of the United States, and shall faithfully account forand pay over to the proper official all money that shall come to his hands, the surety upon such bond is liable to the full amount thereof,
for the entire amount of money stolen by the clerk so bonded. In such case the liability of the surety is fixed by the condition of the
bond, and is not affected by the fact that by section 3926, Revised Statutes, as amended by the act of February 27, 1897 (29 Stat., 599), the Government limits its liability for the loss of any first-class
registered letter to an amount not exceeding $10. The Government, as intrusted with a commodatum, so to speak, by the
sender of a letter, and as parens patriae, is justly and legally entitled to pursue its remedies against the thief, not only under the criminal law and by the administrative method of search and seizure and
recovery, but through the civil tribunals as well. The liability of the principal is the liability of the surety, and the Gore
ernment occupying the field of mail transportation to the exclusion of all others, and inviting the fullest possible use of its facilities, is morally bound to recover from a dishonest official or his surety, the entire amount of his embezzlement, and is equally bound in conscience, as the statute recognizes, to return to the owner of a registered letter the entire amount thus recovered.
DEPARTMENT OF JUSTICE,
August 10, 1901. Sir: Your letter of March 15 informs me that a certain clerk in the registry division of the New York City postoffice stole from a registered letter the sum of $2,000, of which $1,597 was afterwards recovered from him. He confessed this theft, and another similar theft; was arraigned, pleaded guilty, and was sentenced to imprisonment. The bond of the surety company, which was given for the faithful performance of his duties, provides that the principal shall faithfully disharge all duties and trusts imposed on him either by law or by the rules and regulations of the PostOffice Department of the United States, and shall faithfully account for and pay over to the proper official all money that shall come into his hands, etc.
Upon a demand by the Government for the payment by the surety company of the difference between the amount actually lost by this man's dishonesty and the sum recovered from him, the company declined to comply, tendering at the same time in settlement the sum of $20, being $10 for each of the two letters rifled by the clerk, on the ground that its liability is limited by the amount of the indemnity payable by the Government to the sender or owner of a letter, under the provisions of the act of February 27, 1897 (29 Stat., 599).
The Post-Office Department holds, on the other hand, that the registry clerk is liable to the Government for the entire amount of money stolen by him; that the surety is responsible to the same extent; that it is the duty of the Government to recover from the dishonest official and his surety the amount of his embezzlement, and that the Government is bound to return to the owner the amount thus recovered.
Upon this state of facts you desire to be advised as to the extent of the liability of the surety company; and if I shall be of opinion that the surety is not bound beyond the sum tendered, you further ask to be advised whether under the existing law a bond may be drawn by which the surety company may be held responsible for the full value of registered matter that may be stolen by a dishonest official, and if so, you request that I will submit a form of bond that will bind the surety to that extent.
In addressing myself to a reply, I have the honor to say that I have given this subject careful attention, reserving it for the deliberate reflection which is especially demanded, because in practical effect the Government has become the sole arbiter and judge in this matter, and the opinion now to be rendered will have the weight of a conclusive judicial determination, so far, at least, as the interests of the surety company in question are concerned.
The act of February 27, 1897 (29 Stat., 599), amended