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of Columbia, the United States marshal, and the collector of taxes for said District are hereby constituted a commission to from time to time make the list of jurors for service in said court and fix the number of jurors to be listed therefor.'
"I have the honor to ask if I am authorized to pay said jury commissioners for their services the usual fee of $5 per diem for not exceeding three days in any one term of the court.
"The clerk of the supreme court of the District is appointed and receives his salary pursuant to section 179 of the code (31 Stat., 1219), modified by the act of Congress approved July 1, 1902 (32 Stat., 609).
"The marshal is appointed and receives his salary in compliance with section 9 of the act of May 28, 1896 (29 U. S. Stats., 181), District of Columbia Code, 187 (31 Stat., 1220).
"The collector of taxes receives an annual salary from the District of Columbia, as provided on page 519 of the Compiled Statutes in force in the District of Columbia."
As to the claims presented for services prior to July 1, 1904, if payable at all, they would necessarily be payable from the appropriation "Pay of bailiffs, etc., 1904." Demands for the fiscal year 1904 are not now payable by disbursing officers. See Treasury circular dated December 15, 1903, copy of which is inclosed. Any demand for services as jury commissioner accrued in the fiscal year 1904 should be filed with the Auditor. The main question, viz, the right of these officers to receive compensation for such services, is not free from doubt and difficulty. But as I view section 198, District Code (31 Stat., 1222), the duty of making a list of jurors for the supreme court of the District and fixing the number of jurors to be so listed is additional duty added by Congress to the duties of their respective offices for which they can not receive compensation in addition to that fixed by law for their respective offices. Their right thereto is at least doubtful, and if entitled to such compensation such right should be announced by a court.
You are therefore not authorized to make such payments.
28007 Vol. 11-05-25
ADDITIONAL COMPENSATION FOR SERVICES AS SPECIAL DISBURSING CLERK.
Under the provisions of section 1765, Revised Statutes, payment to the disbursing clerk of the Interior Department of additional compensation for his services as special disbursing clerk for the Government Hospital for the Insane is not authorized, such additional compensation not being fixed by law or regulation, and the services being in the nature of extra services added to his regular duties as disbursing clerk of the Interior Department.
(Decision by Comptroller Tracewell, January 30, 1905.)
The Auditor for the Interior Department, by settlement dated August 31, 1904, of the account of George W. Evans, special disbursing agent, Government Hospital for the Insane, for the quarter ending June 30, 1904, disallowed payments made to himself per vouchers Nos. 32, 37, 46, 48, 77, and 108 for compensation as special disbursing agent for the disbursement of moneys for the construction of buildings of the Government Hospital for the Insane, in the District of Columbia, at the rate of three-eighths of 1 per cent of the amounts disbursed therefor, amounting to $5,216.47. By application filed November 11, 1904, the special disbursing agent requested a revision of his account.
The Auditor, in making the disallowance, stated the following reason therefor:
"George W. Evans was during this period disbursing clerk for the Department of the Interior, the annual compensation of which office exceeded the sum of $2,500.
"Credit is disallowed for these payments for the reason that it is provided by section 2 of the act of July 31, 1894 (28 Stat., 205) that
"No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law."
Mr. Evans was appointed by the Secretary of the Interior, August 10, 1901, special disbursing agent to disburse the moneys appropriated by the acts of June 6, 1900 (31 Stat., 619), and March 3, 1901 (31 Stat., 1163), for the construction of additional buildings in the extension of the Government Hospital for the Insane. At the time this appointment was
made Mr. Evans was holding the office of clerk, chief of division, and disbursing clerk in the Interior Department, having attached thereto salary at $3,000 per annum. (Acts of March 3, 1879, 20 Stat., 391; and March 3, 1901, 31 Stat., 995.) As such clerk, chief of division, and disbursing clerk his district embraces the territory of the District of Columbia. (Secs. 1795 and 1796, Rev. Stat.) I am therefore of opinion that the Secretary of the Interior was authorized to require him to disburse the moneys appropriated for the additional buildings referred to, as a part of his duties as such clerk, chief of division, and disbursing clerk. (8 Com. Dec., 914; and Bartlett v. United States, 39 Ct. Cl., —.) -·)
Section 1765 of the Revised Statutes provides as follows:
"No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation."
In United States v. Saunders (120 U. S., 127) the court in considering the effect of sections 1763, 1764, and 1765 of the Revised Statutes said that "they have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by the same person at the same time." But in 10 Comp. Dec., 837, upon a careful consideration of this case in connection with the facts therein and with other cases, the conclusion was reached that the expression "each of which has its own duties and its own compensation," should be interpreted to mean "each of which has its own duties and its own compensation" fixed by law or regulation.
The Secretary of the Interior, in his appointment of Mr. Evans as special disbursing agent, said:
"For this service you will be allowed the maximum compensation prescribed by the act of March 3, 1875 (U. S. Stat. v. 18, p. 415 ), not exceeding three-eighths of 1 per cent."
* * *
The provision referred to is as follows:
"That the provisions contained in the act approved March third, eighteen hundred and sixty-nine, entitled 'An act mak
ing appropriations to supply deficiencies in the appropriations for the service of the Government for the fiscal year ending June thirtieth, eighteen hundred and sixty-nine, and for other purposes,' limiting the compensation to be allowed for the disbursement of moneys appropriated for the construction of any public building was intended and shall be deemed and held to limit the compensation to be allowed to any disbursing officer who disburses moneys appropriated for and expended in the construction of any public building as aforesaid to three-eighths of one per centum for said service."
As indicated by its terms, this provision has reference to prior legislation. Sections 3654, 3657, and 3658 of the Revised Statutes provide as follows:
"SEC. 3657. The collectors of customs in the several collection districts are required to act as disbursing agents for the payment of all moneys that are or may hereafter be appropriated for the construction of custom-houses, court-houses, postoffices, and marine hospitals, with such compensation, not exceeding one-quarter of one per centum, as the Secretary of the Treasury may deem equitable and just.
"SEC. 3658. Where there is no collector at the place of location of any public work specified in the preceding section, the Secretary of the Treasury may appoint a disbursing agent for the payment of all moneys appropriated for the construction of any such public work, with such compensation as he may deem equitable and just.
SEC. 3654. No extra compensation exceeding one-eighth of one per centum shall in any case be allowed or paid to any officer, person, or corporation for disbursing moneys approprated to the construction of any public building.”
The provision in the act of March 3, 1875 (supra), limiting the compensation of the disbursing officers referred to to threeeighths of 1 per centum, has reference to the disbursing officers indicated in sections 3654, 3657, and 3658 of the Revised Statutes. Section 3657 makes it the duty of collectors of customs to act as disbursing agents for the construction of certain classes of public buildings specified therein, and section 3658 authorizes the Secretary of the Treasury to appoint disbursing agents for the construction of such public buildings at places where there is no collector of customs. The provision in the act of March 3, 1875 (supra), is a part of this system of legislation, and I think it has no application to other disbursing agents.
I am therefore of opinion that the compensation of Mr. Evans as special disbursing agent for the construction of the
additional buildings of the Government Hospital for the Insane is not fixed by law; that his services as such special disbursing agent were extra services added to and pertaining to his duties. as clerk, chief of division, and disbursing clerk in the Interior Department, and that the payment to him of additional compensation therefor is prohibited by section 1765 of the Revised Statutes.
ADDITIONAL COMPENSATION TO EMPLOYEES OF THE PHILADELPHIA MINT.
Per diem employees of the Philadelphia Mint who have been granted leave of absence with pay on July 4, Labor Day, Thanksgiving Day, and Election Day, may be employed as watchmen at the mint on such days and receive compensation therefor in addition to their regular per diem compensation, since the two employments are distinct and compatible, and the long-continued, certain, and uniform practice of the mint officials relative thereto amounts to and has the effect of a regulation fixing the compensation to be paid for such services. Watchmen employed at the Philadelphia Mint at a per diem compensation are entitled to pay for their services on Sundays and days declared holidays by statute or Executive order.
(Decision by Comptroller Tracewell, January 30, 1905.)
John H. Landis, superintendent of the Mint at Philadelphia appealed January 16, 1905, from the action of the Auditor for the Treasury Department in disallowing $490.50 in the settlement of his account for the period from July 1 to November 30, 1904, per settlement dated December 28, 1904.
The Auditor found, in said settlement, differences explained by him as follows:
"The following items have been disallowed in the above. account, being payments to regular employees, such as melters, helpers, and rollers, who had been granted leave of absence with pay on July 4, Labor Day (September 5), Thanksgiving Day, and Election Day in November, then employed and paid (the same person) for the same days for services rendered as watchmen, thereby taking the place and performing the duties of other persons who were paid annual compensation for such
"The superintendent's letter of December 22, 1904, herewith, shows that the duties of day watchman constitute an incidental part of the duties of conductors who receive annual compensation of $900. These same melters, etc., are also paid for