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"Quartermasters are authorized to transport, upon an officer's request, his entire baggage as freight on Government bill of lading, the excess in weight over his authorized allowance of personal baggage, professional books, official papers, etc., to be paid for by him to the Quartermaster's Depart
The right and authority of any officer of the Government to include in the Government bill of lading private property of another officer or person in which the Government has no interest whatever, and in respect to which it has no duty or obligation, not being involved in this case, no opinion is expressed thereon.
HOLDING TWO APPOINTMENTS AT ONE TIME.
Neither the position of clerk to the Senate Committee on Foreign Affairs nor that of secretary to the Senate Office Building Commission being an office, within the meaning of section 1765, Revised Statutes, and they being separate and distinct employments, the compensation of neither of which is fixed by law or regulation, service rendered in either position while holding the other would not be "extra services," within the meaning of sections 1764 and 1765, Revised Statutes.
(Acting Comptroller Mitchell to W. E. Evans, disbursing clerk, July 11, 1904.)
In your communication of June 30, 1904, you request my decision of a question which you present therein, as follows:
"The inclosed account of Mr. Garfield Charles, for thirtyone days' services as secretary to the Senate Office Building Commission, May 1 to 31, 1904, at $2,000 per annum, has been presented to me for payment, and having a reasonable doubt as to the legality of the same it is referred to you for an expression of opinion as to whether the claim is just and if I am authorized to pay it.
"Mr. Charles is at present employed as assistant to the Senate Committee on Foreign Affairs, at a salary of $1,800 per annum. I inclose copy of a letter from the Superintendent of the United States Capitol Building and Grounds, in which the appointment of Mr. Charles by the Commission is noted."
It appears that Mr. Charles was employed under authority of a resolution passed by the Senate February 19, 1901, as assistant clerk to the Senate Committee on Foreign Affairs, at a salary of $1,800 per annum, payable from the appropriation for contingent expenses of the Senate. There is no provision in this appropriation for annual salary or other compensation
at the rate of $1,800 per annum or other annual rate. The compensation of Mr. Charles as assistant clerk to the Senate Committee on Foreign Affairs is therefore not fixed by law, and it does not appear that it has been fixed by regulations.
It further appears that while so employed as assistant clerk he was also employed by the superintendent of the Capitol, by direction of the Senate Office Building Commission, as secretary of said Commission, at a salary of $2,000 per annum, under the following appropriation contained in the act of April 28, 1904 (33 Stat., 481):
"To acquire a site for and toward the construction of a fireproof building for committee rooms, folding rooms, and other offices for the United States Senate and for necessary office rooms for Senators, to be erected in the city seven hun
of Washington, District of Columbia, dred and fifty thousand dollars; and said site shall be acquired and said building constructed under the direction and supervision of a commission, which is hereby created. The cost of said building, exclusive of site, shall not exceed two million two hundred and fifty thousand dollars; the construction thereof and letting of contracts therefor, including employment of skilled and other services, shall be under the control of the superintendent of the Capitol building and grounds, subject to the direction and supervision of said commission.”
* * *
It thus appears that the compensation of Mr. Charles as secretary of the Commission is not fixed by law, and it does not appear to have been fixed by regulations.
Section 1765 of the Revised Statutes contains the following provisions prohibiting the payment of additional compensation:
"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."
By the terms of these provisions their application is limited to two classes of persons, namely:
1. Officers of the United States; and
2. Employees whose compensation is fixed either by law or by regulations. (4 Comp. Dec., 696.)
I am of opinion that neither the employment of assistant clerk to the Senate Committee on Foreign Affairs nor the employment of secretary of the Senate Office Building Commission is an office within the meaning of the provisions of section 1765 of the Revised Statutes. (4 Comp. Dec., 696.) And as Mr. Charles's compensation is not fixed, either by law or regulations, the prohibition contained therein does not apply to him.
Section 1764 of the Revised Statutes also contains the following provisions:
"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.'
The provision therein prohibiting the allowance or compensation for extra services is not restricted to officers or to persons whose compensation is fixed by law or regulations. But the two employments in which Mr. Charles was employed being distinct and under the control of distinct bodies, I do not think the services rendered by him in either of them were "extra services" within the meaning of this provision.
The effect of the provisions of this section, and also of section 1765, quoted supra, and section 1763, which provides that no person who holds an office the salary or annual compensation of which amounts to $2,500, shall receive compensation for discharging the duties of any other office, were considered in United States v. Saunders (120 U. S., 126). Referring to these three sections the court said:
"We are of opinion that, taking these sections all together, the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of Congress or by order of the head of his Department, or in any other mode, added to or connected with the regular duties of the place which he holds; but 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 one person at the same time. In the latter case he is, in the eye
of the law, two officers, or holds two places or appointments, the functions of which are separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations. In the former case he performs the added duties under his appointment to a single place, and the statute has provided that he shall receive no additional compensation for that class of duties, unless it is so provided by special legislation."
So far as this language relates to the provisions in section 1765 supra, in a decision rendered June 21, 1904, to the Secretary of the Interior in the case of Mr. J. E. Woodwell, the opinion was expressed 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. I also think that the purpose of this legislation, "taking these sections all together," was to prevent extra compensation, additional allowances, or pay for other services which may be required by the head of his Department," added to or connected with the regular duties of the place which he holds," has reference also to "extra services" for which section 1764 provides no allowance or compensation shall be made, and that the further language that those sections "have no application to the case of two distinct offices, places, or employments, each of which has its own. duties and its own compensation," must be interpreted to mean that such services are not "extra services" within the meaning of section 1764.
I have therefore to advise you that you are authorized to pay Mr. Charles his salary as secretary of the Senate Office Building Commission, if otherwise correct.
PAY OF A RETIRED OFFICER OF THE MARINE CORPS WHILE ON ACTIVE DUTY.
There is no provision of law authorizing the assignment of a retired officer of the Marine Corps to active duty, and therefore a retired officer assigned to duty as secretary of the Naval Board of Awards is not entitled to the pay and allowances of an officer on the active list.
(Acting Comptroller Mitchell to the Secretary of the Navy, July 11, 1904.)
By your reference dated May 5, 1904, of a communication from Lieut. Col. B. R. Russell, retired, of the Marine Corps,
dated April 30, 1904, you request my decision of the question whether he is entitled to the pay and allowances of an officer on the active list while assigned to duty as secretary of the Naval Board of Awards.
There is no express provision of existing law which authorizes the assignment of an officer of the Marine Corps to active duty. The act of August 3, 1861 (12 Stat., 286), which provided for the retirement of officers of the Army, of the Marine Corps, and of the Navy by section 25 authorized the assignment of retired officers of those branches of the military service to such duties as the President might deem them capable of performing, and such as the exigencies of the service might require. Similar provisions were contained in section 12 of the act of July 17, 1862 (12 Stat., 596). But although the provisions of these acts authorizing the retirement of these officers and other provisions were incorporated in the Revised Statutes as sections 1243, 1443, and 1622, and other sections, the provisions therein for assigning them to active duty was not incorporated in the revision. It is provided by section 5596 of the Revised Statutes that acts of Congress passed prior to the 1st day of December, 1873, "any portion of which is embraced in any section of said revision, are hereby repealed." The provisions contained in section 25 of the act of August 3, 1861, and in section 12 of the act of July 17, 1862, authorizing the assignment of those officers to active duty were, therefore, repealed. There is, therefore, no provision of existing law which authorizes the assignment of officers of the Marine Corps to active duty.
The provisions for the retirement of officers of the Marine Corps, which are contained in section 1622 of the Revised Statutes, are as follows:
The commissioned officers of the Marine Corps shall be retired in like cases, in the same manner, and with the same relative conditions, in all respects, as are provided for officers of the Army."
The meaning of the provision, "with the same relative conditions," is obscure. It might be regarded as including eligibility for assignment to active duty. But I think this would be extending its meaning beyond what was intended. I am of opinion that it will be given its appropriate meaning by confining it to conditions pertaining to retirement alone.