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"It is observed that
"An appointment of a clerk in the Interior Department as examiner of surveys, which was made on April 5, 1901, to take effect April 1, 1901, when he entered upon duty by transfer from clerk,' implies a prior informal appointment to the position at the prior date, and it is therefore operative from such prior date. Dig. Comp. Dec., 9, 556.
"This decision seems to be based upon the implied prior and informal appointment to the position at the prior date, and the paper of April 5 is regarded as a recognition that the appointee had entered on the new duty April 1, and in pursuance of a selection previously made. This case is precisely that upon which the Department now requests a decision, but the decision is desired in order that the Department may be certain that in such cases appointment certificates containing the words, when he entered upon duty,' or their equivalent (in other words, appointment certificates which themselves show and recognize that appointees actually entered on duty on the date on which the certificates indicate that the appointments become effective) may be issued, and that payments may be made for services rendered thereunder.
"While it would be more desirable to use the present printed forms of certificate, as shown above, adding the necessary words to show the prior date of effectiveness, the Department could, if it is decided preferable, use any other wording which would recognize the validity of the appointment from its actual beginning, and still admit of the dating of the paper as of the date upon which it is actually signed."
The question thus presented by you for decision is very similar to that considered by this office in the case of Mr. Arthur D. Kidder, MS. Dec., vol. 20, p. 243.
Mr. Kidder was a clerk at $1,000 per annum in the General Land Office. On April 1, 1901, he was appointed an examiner of surveys and assumed his new duties on that date. The certificate of his appointment, however, was not made out and signed by the Acting Secretary of the Interior until the 5th of April, 1901. The la guage of said certificate was as follows:
"Arthur D. Kidder, of Indiana, is hereby appointed an examiner of surveys of the General Land Office, at a salary of five dollars per diem, to take effect April 1, 1901, when he entered upon duty by transfer from clerk at $1,000."
The Auditor for the Interior Department disallowed so much of the account of Mr. Kidder as was for his compensation for the first four days of April, 1901, on the ground that
the law did not authorize compensation for any period prior to the appointment. His statement of the law was correct, but he was in error as to the fact of appointment.
The action of the Auditor was reversed by this office on the theory that the act of appointment, the date thereof, and the immediate assumption by the appointee of the duties of the new position were, in that case, the crucial test as to his right to the compensation, and that the certificate of appointment was merely evidence thereof and of the conditions accompanying and controlling the appointment. In the opinion it was said:
"The arrangement that Mr. Kidder should cease to be a clerk, in order to undertake the new duty, was necessarily made by authority from the Secretary, and the paper of April 5 was a recognition that Mr. Kidder had entered on the new duty on April 1, and in pursuance of a selection previously made. It also operated as a waiver of the departmental regulation cited by the Auditor."
The same ruling was made and followed by this office in the cases of J. S. Harrison and F. M. Johnson, respectively, in MS. Dec., vol. 20, pp. 508 and 509, the facts in said cases being identical with those in the Kidder case.
In answer to your question, therefore, I see no reason why the certificate of appointment, bearing the date on which it is actually signed, should not contain a provision that it should be operative from a prior date, provided it be a fact and is set forth fully and plainly: (1) that the appointment was in fact made and accepted on some prior date, and said date is stated; and (2) that the appointee, on said prior date, entered upon and had since performed the duties of said office or position. When the facts warrant it, and the certificate of appointment contains these statements and is signed by the proper person, I see no reason why the appointees should not receive the compensation of their positions for the period intervening between the date of their actual appointment and the date on which the certificate is signed.
For your guidance in this matter, I invite your attention to the decision of this office in 6 Comp. Dec., 41.
FEES OF CONSULS AND RATE OF EXCHANGE. Where a United States consul in India draws a bill of exchange or draft and is paid therefor in rupees, the value of the rupee must be computed at its commercial value, or par of exchange, in English sovereigns or pounds sterling, and not by its mint rate or bullion value in United States money.
A contingent expense of a consulate can not be allowed by the accounting officers unless first approved by the Department of State.
Fees for certificates to vessels' manifests fall under fee 22 of the tariff of official fees of October 1, 1897, and must be accounted for to the United States.
Where a consul's draft is dishonored and returned to the drawee, who never again presents it and it is never paid, the expenses and interest thereon is personal to the consul, and the United States is not liable therefor.
Where a consul in India in the collection of consular fees in rupees demands and is paid them at their mint rate or bullion value, which is much lower than their commercial or par of exchange value, he must account for the difference, such difference being an overcollection of fees within the meaning of the law and consular regulations. The services of a consul are not official where he acted in a private fiduciary capacity for himself and other heirs of his deceased wife, and distributed her estate, which consisted entirely of money in bank; and where he inadvertantly charged himself with fees for such services, he is entitled to credit therefor.
The United States is not liable for consuls' one-half of fees earned at consular agencies, the matter being between the consul and the consular agent who collects and reports such fees.
(Decision by Comptroller Tracewell, December 19, 1904.)
On October 18, 1904, William Morey, United States consul at Colombo, Ceylon, appealed from the action of the Auditor for the State and other Departments on the final settlement of a large number of accounts under various appropriations for different fiscal years and under different bonds, to wit:
Bond of November 19, 1895: Nos. 45508, 45509, and 45510, "Contingent expenses, United States consulates," 1897, 1901, and 1902; and Nos. 45511, 45512, and 45513, "Salaries, consular service," 1900, 1902, and 1901, respectively; all dated April 25, 1904, and No. 46863, "Salaries, consular service," 1902, dated July 13, 1904.
Bond of February 13, 1902: Nos. 47253 and 47255, “Salaries, consular service," 1902 and 1903, dated August 5, 1904. Claimant's appeals relate generally to a large number of
disallowances by the Auditor, which need not be considered separately, but for convenience will be grouped and considered accordingly.
As stated by the Auditor, in his report on these appeals, they are as follows:
1. Overcharge of loss by exchange, aggregating.
2. Charges for revenue stamps for bond of vice and deputy consul.
3. Fees for certificates to manifests, reported by the consul as notarial or unofficial, aggregating
4. Charges for expenses and interest on dishonored drafts, aggregating..
5. Overcollections of fees for certificates to invoices, aggregating. 2, 416. 68 6. Undercredit for fees (commissions) collected from estate of Mrs. Francina Morey
7. Claims on account of Point de Galle Agency fees, aggregating. 8. Debit error in addition
9. Gain by exchange
5.54 301.93 1.00 .76
Item 1 is made up of two subitems; the one being for $25.68, suspended on the settlement of consul's account for the quarter ending September 30, 1900 (certificate No. 26333), and the other for $72.79, suspended on the settlement of his accounts for the quarters ending December 31, 1900, and March 31 and June 30, 1901 (certificate No. 32138).
On examination of these accounts, however, it is found that the consul was credited with what may be here designated undercharges, or gain by exchange, amounting to $6.47 in the first and $30.85 in the last mentioned settlements, aggregating $37.32. These credits were continued and carried into the final statement of the accounts (certificate No. 45509), in which the said item 1 was disallowed, so it is clear that the amount actually disallowed by this item is $61.15 and not $98.47 as reported. ($98.47-$37.32=$61.15.)
The differences between claimant and this Department arise from the fact that the former in converting the rupee, which is the money of account in Ceylon, into dollars of the United States, computed the rupee, up to a certain period, at its "mint value," and afterwards at what he calls its "bullion value." The reasons for this change in his method of computation appear to arise from the fact that on October 1, 1900, the value of the rupee, as estimated by the Director of the Mint and fixed by the Secretary of the Treasury, was changed and largely increased, for the reason that on that day the standard in India was changed from silver to gold.
An examination of the circulars issued by the Director during and immediately preceding the period covered by the transactions indicated by this item disclosed the following facts:
These circulars are issued every three months, and in those of January 1, April 1, and July 1, 1900, silver is given as the standard, and the value of the rupee fixed at $0.203, $0.207, and $0.208, respectively, with the following footnote: "Value of the rupee to be determined by consular certificate," while, commencing with October 1, 1900, gold is given as the standard, and in the circulars of that date and of Jannary 1, 1901, the value of the rupee is fixed at $0.324, with the following footnote: "The sovereign is the standard coin of India, but the rupee is the money of account, current at 15 to the sovereign.' These are the last circulars in which the rupee is given a fixed value in the table of estimates, the pound sterling (sovereign) being substituted as the monetary unit, with the following footnote: "The sovereign is the standard coin of India, but the rupee ($0.324) is the money of account, current at 15 to the sovereign." This footnote was continued until Januuary 1, 1902, when $0.32443 was substituted for $0.324, and it is so continued to the present time.
In his account for the quarter ending September 30, 1900, the value of the rupee was computed by claimant at the mint rate ($0.203) fixed by the circular of January 1, 1900, accompanying it with the statement, certified by himself and the Mercantile Bank of India, Limited, that demand sterling exchange on London was 1 shilling 3 pence per rupee, and in his account for the quarter ending December 31, 1900, he computed at the mint rate ($0.207) fixed by the circular of April 1, 1900, accompanying it with a like certificate, that sterling exchange was 1 shilling 4 pence (exactly 15 to the sovereign). In his account for the quarter ending March 31, 1901, he computed the rupee at the same rate ($0.207) as that used in the next preceding quarter, but the account does not show whether it was intended as the mint rate or the bullion value, nor is there any certificate therewith as to the rate of exchange, while in the account for the quarter ending June 30, 1901, he computed at the same rate ($0.207), stating that that was the bullion value of the rupee, which statement is ac