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at Savannah and sent to the marshal for the southern district of Florida at Jacksonville, by whom they were given to deputies for service on the witnesses, all of whom resided at places more than 100 miles distant from Savannah, where court was held.
These subpoenas were served on behalf of the United States, and by special request of the special assistant to the AttorneyGeneral and the United States attorney for the southern district of Florida, and Marshal Horr says that he is informed that the United States has recovered judgment in some of the cases and that costs have been taxed against the defendants and have been or will be recovered from them.
The Auditor further suggests the question whether the fact that subpoenas were served on behalf of the United States and by order of the United States attorney would authorize the allowance.
Section 876, Revised Statutes, does not make any exception as to the running of subpoenas in civil cases because of the fact that they are issued in behalf of the Government. A marshal who receives a subpoena in a civil case to be served outside of the district in which it issues and the witness to be served lives more than a hundred miles from where the court is held is chargeable with the knowledge that he is not authorized to serve the same.
It is suggested that the costs of these witnesses will be or are taxed against the defendants. The very purpose of this law is that costs of this character shall not be taxed. The Government, in the regular and orderly way, could have had the benefit of the evidence of these witnesses by taking their depositions. The Government is not only interested that subpoenas shall not run beyond the limits prescribed by law, but general litigants are equally interested. No agreements by Government officials in violation of law or the rights of litigants are binding.
The Auditor's decision is affirmed.
HOLDING TWO APPOINTMENTS AT ONE TIME.
The employment of a regular railway postal clerk during his “rest” period as a substitute for another railway mail clerk who was absent from duty without pay, and the payment to him of the lapsed salary of such absent clerk is authorized, such service as a substitute clerk not being extra service which he might have been required to perform under his regular employment, and the two positions being distinct and compatible, and neither of them having a fixed compensation of $2,500 per annum.
(Comptroller Tracewell to the Postmaster-General, April 21, 1905.)
In your letter of April 12, 1905, you request my decision of a question which you therein present as follows:
"The act of March 3, 1905, making appropriations for the service of the Post-Office Department for the fiscal year ending June 30, 1906, contains the following provision:
That hereafter when any clerk in post-offices of the first or second class, or in the railway mail service, or any letter carrier in the city free-delivery service is absent from duty from any cause, other than the fifteen days' annual leave with pay allowed by law, the Postmaster-General, under such regulations as he may prescribe, may authorize the employment of a substitute for such work, and payment therefor from the lapsed salary of such absent clerk, or letter carrier, at a rate not to exceed the pay of the grade of work performed by such substitute.'
"The work in railway post-offices is performed in the main by railway postal clerks regularly appointed at stated salaries, under the provisions of Revised Statutes, section 4025 (P. L. and R., 1402). Besides such clerks thus appointed a certain number of substitute clerks are chosen from the certified civilservice lists, and such certified substitutes are employed to perform the service of regular clerks when such regular clerks are unable to make their runs and payment for such service is provided for by section 1422, Postal Laws and Regulations, such payment to be made out of the salaries of the clerks who are relieved by such substitutes. This section also provides for the performance of substitute service by one regularly appointed railway postal clerk for another such clerk and the payment of the compensation of the clerk who is relieved to the clerk who performs the service.
"The performance of substitute service becomes necessary upon emergencies arising, such as the illness of a regular clerk, injury by wreck, or other disability or casualty, which
makes it impossible for the clerk to make his run. Under such circumstances an available substitute clerk is ordered to make the run for him, and it has been customary, as above stated, to pay such substitute out of the salary of the regular clerk. It often happens, however, that there is no substitute in the vicinity, or none available, and it is necessary to call upon another regular clerk during his lay off to make the run. It may be desirable to explain that the nature of the employment of railway postal clerks is such that it is impossible for them to work all the time. They work, therefore, for a certain period and are then given a rest period. This may be every other week, or one week in three weeks, or one or two days in each week, dependent upon the circumstances of the case. During this rest period, however, the clerk is subject to call for duty. If he is called to perform substitute service, as provided for in section 1422, Postal Laws and Regulations, it has been customary for him to receive, in addition to his regular salary, the compensation which would otherwise be paid to the clerk for whom he performs the service; that is to say, the clerk for whom he performs the service signs the roll and pays over to the clerk performing the substitute service the amount which he receives for that period.
"Your office has expressed the opinion that such practice, namely, the signing of the pay roll by the regular clerk, who does not in fact perform the service, and the payment by the postmaster of the amount or a portion of the amount received to the substitute was without warrant of law, and further that the paying postmaster could not pay the substitute direct and receive credit for such payment because there was no authority for the employment of such substitutes. This, it is understood, led to the incorporation of the above quoted provision in the appropriation act for the next fiscal year.
"I have the honor to ask your opinion whether the abovequoted provision of law in the appropriation act authorizes the employment of a regular railway postal clerk during the period of rest or lay off to perform the duties of another railway postal clerk absent from duty from any cause other than fifteen days' annual leave with pay allowed by law and the payment thereto for such service from the lapsed salary of such absent clerk at the rate named in the act in addition to his regular salary.
"In this connection attention is called to section 1765, Revised Statutes. It is understood from your opinion of November 8, 1902, that such employees are not within the prohibition of section 1764, Revised Statutes."
The effect of the act of March 3, 1905, authorizing you to employ substitutes when any clerk in post-offices of the first or second class, or in the railway mail service, or any letter
carrier in the city free-delivery service is absent from duty for any cause other than the fifteen days' annual leave with pay allowed by law, and that payment may be made to such substitute from the lapsed salary of such absent clerk or letter carrier at a rate of pay not to exceed the rate paid for the grade of work performed by such absent clerk or letter carrier, would be to repeal or at least suspend section 1764 if it applied to the postal service of the United States.
It has heretofore been held by this office that said section was confined in its operation to the Executive Departments, but whether or not within the sense of this law the postal service is a part of the Executive Department, with the views I entertain, need not be determined.
It has also been held-and uniformly and correctly so, in my judgment that when a person held a place with a fixed compensation or salary-that while such person continued to hold such place during periods when, from sickness or other causes, he failed to perform the duties of such place, the salary lapsed and could not be paid to another person who performed the duties thereof.
The clear effect of this provision of March 3, 1905, supra, is to except the lapsed salaries of the clerks and carriers therein mentioned from this rule and allow them to be paid to substitutes.
Whether you can legally pay a regular postal clerk during his rest period for acting as a substitute the lapsed salary of the clerk or letter carrier for whom he is acting as substitute depends, in my judgment, upon one fact alone, and that is, whether in appointing such clerk to act as a substitute for another you are authorized to require him, under his regular appointment as such clerk, to perform such substitute service.
I assume that, under your general authority, through your postal agencies, you may, during the work period of a clerk or carrier, assign him to the work of some other carrier, even though such other work is different in its nature and in its compensation from his regular duties. When so assigned, it is reasonably clear that you are not authorized to pay such person any additional compensation for such additional or added duties. Such is the law as announced in Saunders v. United States (120 U. S., 129).
I understand from your statement that certain periods,
called rest periods, of time are allowed to postal clerks when they are not required to perform their regular duties, but that at all times they are subject to call for duty.
If you mean by "subject to call for duty" that you are authorized to call such a clerk to act as a substitute for another clerk without his consent, I am compelled to answer your question relative to payment to such called clerk in the negative. If, on the contrary, you mean by "subject to call for duty" that you are authorized during such rest periods to only call such clerk back to his regular duties and not to perform the duties of some other person, and you give him, with his consent, a separate employment to perform the duties of such absent clerk, and he does so temporarily perform the duties of such absent clerk during his rest period, I see no legal objection to paying him for the performance of such substitute duties, as now allowed by law, in addition to his regular compensation.
I am inclined to the belief that during a fixed rest period, a period which must have been considered by you as necessary in order that the Government obtain the best services of a clerk, when the limitations and necessities of humanity are considered, which requires certain rest, sleep, and recreation from work, you are not at liberty to require, during said rest period, that such postal clerk perform, as a part of his duties, the services required of some other postal clerk or employee.
Whether or not you can make such a requirement would be a matter eminently fit and proper to submit to the AttorneyGeneral for his opinion.
In the absence of an opinion from the Attorney-General holding that you would be so authorized, I will hold to the contrary.
Neither of the salaries attached to the places herein considered being to the amount of $2,500, the salary of each being fixed by law, and no incompatibility existing between their duties, if the exigencies of your service require that you employ or appoint a regular postal clerk during his rest period to perform the substitute duties set out in your letter, you are authorized to pay him therefor as is provided in the act of March 3, 1905, supra, which would result in the payment of two salaries for the time being to a person holding two distinct places or offices, which of itself is not prohibited by law.