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performing the duties of watchmen on Sundays, being duplicate pay for service of watchmen on these days, as the salaried employees should be required to perform such duties."
Eliminating therefrom extraneous matter introduced as mere argument, the superintendent bases his appeal upon substantially the following grounds:
1. That the Auditor's action is in derogation of the superintendent's authority conferred by law to fix the salaries and assign duties to his subordinates whose salaries and duties are not determined by express provision of statute.
2. That there are but two employees of the Mint who have been appointed and to whom duties have been assigned as day watchmen on ordinary working days, payments to neither of whom are involved in the action of the Auditor appealed from.
3. That owing to the presence, on ordinary working days, of other Mint employees, including conductors, and within the exercise of his discretion, the superintendent has not considered it necessary to employ day watchmen except on Sundays and holidays.
4. That the duties of conductors are to "conduct" visitors through the Mint and to explain the operations thereof. That visitors are not allowed within the building except under conduct of these employees, and that the effect of their employment, together with the presence of other employees, is to render the services of watchman unnecessary during working hours rather than to make the duties of watchman incident to such employment.
Section 3499 of the Revised Statutes provides that:
"There shall be allowed to the assistants and clerks of the several mints such annual salaries as the Director of the Mint may, with the approbation of the Secretary of the Treasury, determine, and to the workmen employed therein such wages as may be customary and reasonable according to their respective stations and occupations, to be determined by the superintendent and approved by the Director of the Mint ****.” In defining the powers and duties of superintendents of mints, section 3504 provides that:
He shall also appoint all assistants, clerks, one of whom shall be designated chief clerk,' and workmen employed under his superintendence. He shall forthwith report to the Director of the Mint the names of all per
sons appointed by him, the duties to be performed, the rate of compensation, the appropriations from which compensation is to be made, and the grounds of appointment; and if the Director of the Mint shall disprove the same the appointment shall be vacated."
In short, Congress has conferred upon superintendents of mints, where it has not otherwise specifically legislated, authority to appoint their subordinates and to prescribe their duties. There is no special provision of law for either watchman or conductors at the Philadelphia Mint, and they are both paid from the following appropriation:
"Mint at Philadelphia:
For wages of workmen and adjusters, and not exceeding seventy-eight thousand six hundred and forty dollars for other clerks and employees, four hundred and fifty thousand dollars." (33 Stat., 110.)
Under seemingly ample legislative provision for executive control of such action, the superintendent has exercised the appointive power vested in him by sections 3499 and 3504 (supra), and has assigned to appointees their respective duties. As he is charged with fixing such duties, his expressed opinion of what they consist is entitled to weight and his definition thereof, the substance of which has been given herein, is accepted.
The accounting officers can not substitute their judgment for the rightful exercise of discretion by administrative officers. It is apparently not within the province of accounting officers to determine that particular duties should be performed by any certain employees unless such duties are assigned by law and involve a question of compensation therefor or that the following provisions of the Revised Statutes have been contravened:
"SEC. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.
"SEC. 1765. 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."
Attorney-General Crittenden, in an opinion rendered June 7, 1851 (5 Op. Att. Gen., 765), considering the foregoing provisions of law, said:
"At the passage of these acts there was no law forbidding any person from holding, under the Government of the United States, two compatible offices or employments at one and the same time and receiving the salary and emoluments belonging to each of the offices, whether fixed directly by law or a regulation made by a person lawfully authorized to make it. These sections do not forbid it. They are intended to fence against arbitrary extra allowances in each particular case, but do not apply to distinct employments with salaries or compensation affixed to each by law or regulation."
The Supreme Court of the United States, in the case of Saunders v. United States (120 U. S., 126), not only adopted the reasoning of the Attorney-General in his opinion (supra), but his language as well. The rule was also followed in substance in 19 Op. Att. Gen., 121, and in 10 Comp. Dec., 837, in which it was held that—
"Adopting this view of the Attorney-General, the language in the Saunders case that these statutes do not apply to two distinct offices, places, or employments, each of which has its own duties and its own compensation,' must be held to mean each of which has its own duties and its own compensation fixed by law or regulation."
There is no prescribed manner of issue or form which regulations of executive officers must take. Many departments and bureaus of the Government, including the mint service, have their regulations codified and printed in book or pamphlet form. The omission of a regulation, however, from such books or pamphlets renders it none the less effective though more difficult, as a matter of proof, to establish.
A continued, certain, and uniform usage or practice of administrative officers charged with the duty of making regulations amounts to or has the effect of a regulation. (United States v. Macdaniel, 7 Pet., 14; 2 Lawrence, First Comp. Dec., 559, 595; 5 id., 311; 3 Comp. Dec., 316; and Lieber on Regulations, p. 10.) The practice, which forms the subject of this appeal, seems to have been long continued, certain, and uniform, and as such is not an arbitrary extra allowance in each
particular case, but applies to distinct, compatible employments with a certain compensation for each fixed by what is, in effect, a regulation. The payments in question do not, therefore, appear to have been prohibited by sections 1764 and 1765 supra.
Having decided generally the legality of payments to persons serving in the capacities indicated and performing the duties of day watchman at the Mint, three further questions, raised inferentially by the Auditor, are offered for determination.
Are per diem workmen entitled to pay for services performed as watchmen on
2. Days declared holidays by statute?
3. Days declared holidays by Executive order?
Except in cases of exigency or under special conditions, where the employment of per diem employees on Sundays is actually necessary for the public interests, payment for such days is not authorized unless provision for payment on such days is made by law. (6 Comp. Dec., 803.) From the nature of services rendered by watchmen, the special conditions required to properly make such payments are clearly present in the cases at issue.
It is provided by the acts of Congress dated January 6, 1885 (23 Stat., 516), and February 23, 1887 (24 Stat., 644), that per diem employees at Washington and elsewhere shall be allowed New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Thanksgiving Day, and Christmas Day, as holidays and that they shall receive the same pay on these days as on other days.
In 8 Comp. Dec., 322, it was held that employees of the Government Printing Office, who are not employed under an annual salary, are entitled, for work performed and rendered necessary by the public interests, to pay for legal holidays in addition to the pay for such holidays allowed them by the statute (28 Stat., 607) declaring such holidays.
In 11 Comp. Dec., 102, the authority of the President to declare special days to be legal holidays in the District of Columbia and elsewhere was discussed and therein it was said:
"Cabinet ministers are, in the language of the courts, simply the hands and instruments of the Chief Executive, through
and by which he administers and executes the law and keeps the Government moving. Their acts of Government are his
acts if not repudiated."
See also United States v. Eliason, 16 Pet., 302; United States v. Fletcher, 148 U. S., 84, and 7 Op. Att. Gen., 453.
The Mint Regulations dated October 1, 1890, and bearing the approval of Secretary Windom of the Treasury, provide as follows:
"SEC. 18. The mints and assay offices shall not be closed without authority from the Director of the Mint (Sundays excepted) at other times than January 1, February 22, Memorial Day (i. e., May 30), July 4, December 25, or when these holidays fall on Sunday the succeeding day, and the day designated by the President to be Thanksgiving Day, and on days which are by State law legal holidays in the State or Territory where the institution is located."
In the State of Pennsylvania the first Monday of September, Labor Day, and election day in November are legally State holidays.
The answers to the three queries heretofore propounded appear to be in the affirmative. The action of the Auditor is accordingly disaffirmed.
EXTENSION OF TIME SPECIFIED IN A CONTRACT FOR COMPLETION OF WORK.
The Commissioners of the District of Columbia are not authorized to grant a retroactive extension of the time specified in a contract for the completion of the work so as to remit damages and penalties which under the original contract have already accrued to and vested in the District.
(Comptroller Tracewell to the Commissioners of the District of Columbia, January 31, 1905.)
I am in receipt of your letter, dated January 27, 1905, requesting my decision as to the extension of the time limit which you desire to grant in connection with the contract of the Holly Manufacturing Company.
This contract, which was for the erection of a pumping engine at the Trumbull street pumping station, should have been completed and the engine presented for official test not