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ment with interest at the rate of 3.65 per cent per annum, from the date when the debt became due and payable to the date of payment, is made on the presentation of the transcript (6 Comp. Dec., 202), unless the judgment has been suspended or vacated or other sufficient reason exists for refusing payment.
It further appears that the motion for a new trial made by the claimant, which was allowed April 2, 1895, was made under the following provisions of the act of February 13, 1895 (28 Stat., 664):
"That in the adjudication of claims brought under the provisions of the act entitled 'An act to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes,' approved the sixteenth of June, eighteen hundred and eighty (Twenty-first Statutes at Large, page two hundred and eighty-four), the Court of Claims shall allow the rates established and paid by the board of public works; and whenever said rates have not been allowed, the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause.
It also appears that the judgment was rendered thereunder and that subsequent to the rendition thereof, and while the motion by the Government for a new trial was pending, the following legislation contained in the act of March 3, 1897 (29 Stat., 669), was enacted by Congress:
"That the act approved February thirteenth, eighteen hundred and ninety-five, entitled 'An act to amend an act entitled "An act to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction upon the Court of Claims to hear the same, and for other purposes," approved June sixteenth, eighteen hundred and eighty,' be, and the same is hereby, repealed, and all proceedings pending shall be vacated and no judgment heretofore rendered in pursuance of said act shall be paid."
It is not necessary in this case to consider the effect of the provisions in this act upon the rights of the claimant which had become vested in him under the prior act, before it had been repealed, or their effect in vacating the judgment which had been rendered. The provision prohibiting the payment of any judgment theretofore rendered in pursuance of the prior act operates to restrain the executive officers of this
Department from paying such judgment, notwithstanding any legal rights so vested in the claimant.
I have the honor, therefore, to advise you that you are not authorized to pay the said judgment.
PAY OF RETIRED OFFICERS OF THE NAVY ON ACTIVE DUTY WHILE ON LEAVE OF ABSENCE.
A retired officer of the Navy on active duty who is granted a leave of absence is not by such grant returned to his former condition as a retired officer, but is in the leave status of an officer on the active list, and he is entitled while on such leave to the pay provided for officers of the active list on leave of absence.
(Assistant Comptroller Mitchell to the Secretary of the Navy, January 25, 1905.)
I have received by your reference of 20th instant a communication to you from Medical Inspector T. Woolverton, United States Navy, retired, dated January 11, 1905, which presents the following facts:
Medical Inspector Woolverton, retired, was placed on active duty January 8, 1903, by authority of the act of June 7, 1900 (31 Stat., 703), and while on active duty was granted leave of absence by the Bureau of Navigation by the following order, dated September 15, 1904:
"In compliance with your request of September 10 you are hereby granted leave of absence for one month from October 3, 1904."
You request my decision as to whether Medical Inspector Woolverton while on the granted leave of absence was entitled to the pay provided for an officer on the active list or only to his former retired pay.
The act of June 7, 1900 (31 Stat., 703), by authority of which Doctor Woolverton was placed on active duty, provides as follows:
"During a period of twelve years from the passage of this act any naval officer on the retired list may, in the discretion of the Secretary of the Navy, be ordered to such duty as he may be able to perform at sea or on shore, and while so employed shall receive the pay and allowances of an officer on the active list of the grade from which he was retired.”
I am of opinion that while a retired officer of the Navy is on active duty under this statute he is in the same condition in all respects as to pay as an officer of the active list.
Leave of absence is an incident to active duty, and when a retired officer on active duty is granted a leave of absence, he is not, by that grant, returned to his former condition as retired officer, but is in the leave status of an officer on the active list.
When in the discretion of the Secretary of the Navy the services of a retired officer are no longer required on active duty, his order will relegate such officer to the retired status, but I do not think an order granting leave of absence for a specified time removes him from the pay status of an officer on the active list.
I am therefore of opinion that Medical Inspector Woolverton is entitled, during the time he was on the leave of absence referred to, to the same pay that is provided for officers of the active list when on leave.
EXTRA PAY TO FIREMEN IN PUBLIC BUILDINGS FOR WORKING OVERTIME.
Firemen employed in public buildings under control of the Treasury Department at a specified sum per day, with the understanding that they will be required to work for only eight hours each day, are entitled to additional pay when required to work a greater number of hours than eight in anyone day, provided such additional compensation is fixed by law or general regulation or order.
(Comptroller Tracewell to the Secretary of the Treasury, January 26, 1905.)
In your communication of January 23, 1905, you request my decision of a question which you therein present as follows:
"The firemen employed in the large United States buildings under the control of this Department are paid by the day, when actually employed, from the appropriation Pay of assistant custodians and janitors' (sundry civil act, April 28, 1904). It sometimes happens that a fireman, by reason of illness or other cause, fails to report for duty at the time designated for the commencement of his work, and, as a result, the man whom he was to relieve is compelled, by reason of the exigencies of the case, to work overtime, such
overtime, in most instances, amounting to eight hours, which, together with the work performed during his regular shift, would aggregate sixteen hours, or two days as viewed from section 3738, United States Revised Statutes. It is absolutely necessary that this extra work should be performed, as otherwise the building would be without heat or light, thereby seriously interfering with the transaction of the post-office and other public business. The sums paid to these firemen as wages are fixed by regulation, and payments are only made for services actually rendered.
"Your decision is requested as to whether or not payments for extra work performed under the circumstances described above can legally be made by this Department. The amounts so paid do not constitute an additional charge to the appropriation, as they simply represent deductions made from the amounts which otherwise would have been paid to the other regularly employed firemen, had they reported for duty and rendered service."
Section 3738 of the Revised Statutes provides as follows:
"Eight hours shall constitute a day's work for all laborers, workmen, and mechanics who may be employed by or on behalf of the Government of the United States."
This provision is directory only. It does not prevent the Government from making agreements with laborers, workmen, or mechanics by which they will be required to work more than eight hours, nor does it require that, where employed for more than eight hours, under an agreement providing for eight hours' service each day, they shall be paid on the basis of an eight-hour day. (United States v. Martin, 94 U. S., 400.)
It is understood from your communication that the firemen referred to are employed under an agreement to perform service for a specified sum per day, it being understood that they will be required to work for only eight hours each day. I have no doubt, therefore, that when, under the circumstances described by you, they are required to work a greater number of hours than eight in any one day, they are entitled to be paid for such extra hours of labor under such latter employment, provided the compensation thereunder is fixed by law or general regulation or order.
COMPUTING ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH.
Under section 4 of the act of April 28, 1904, an employee in the Bureau of Statistics who only worked two half days during a thirty-one day month, and who was absent without pay the remainder of the month, is not entitled to any compensation for his services during said month, as one day's pay must be deducted for each day he was so absent. (Comptroller Tracewell to W. L. Soleau, disbursing clerk, Department of Commerce and Labor, January 26, 1905.)
Mr. William L. Soleau, disbursing clerk, Department of Commerce and Labor, submits a voucher in favor of Walter Asmuth, a translator in the Bureau of Statistics, for salary for a half day on December 13 and for a half day of December 14, 1904. During all the rest of the month he was absent and being carried on the rolls without pay.
The disbursing officer requests a decision as to whether, under the above circumstances, he is authorized to pay such voucher.
The question, no doubt, arises because of the provisions of section 4 of the act of April 28, 1904, Public No. 194, which reads:
"That the annual compensation of officers, agents, and employees of the United States for services rendered subsequent to June 30, 1904, shall be divided into twelve equal installments, one of which shall be the pay for each calendar month; and in making payments for a fractional part of a month, one-thirtieth of one of such installments, or of a monthly compensation, shall be the rate to be paid for each day. For the purpose of computing such compensation each and every month shall be held to consist of thirty days, without regard to the actual number of days in any month, thus excluding the thirty-first day of any month from the computation, and treating February as if it actually had thirty days."
This act has caused no end of complications and trouble in the adjustment of salaries where service has covered fractional parts of a month. One of the first questions that arose was as to the amount of annual salary that should be paid to a clerk in one of the Executive Departments who was absent and not in pay status for a day in a thirty-one-day month. A practical construction was given to the act supra that for