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Mr. Bowser should be paid for seventeen days in July, provided the salary of such position is paid no other person for the full first fourteen days of said month.

If another clerk has been paid fourteen-thirtieths of the July salary, Mr. Bowser is only entitled to the remaining sixteen-thirtieths of the salary for said month.

For his service on the first day of the month of August, Mr. Bowser will receive one-thirtieth of the salary for said month.


Where a clerk at $1,000 per annum was promoted to a clerkship in class 1, to take effect July 16, and there was a vacancy from July 10 to July 16 in the position to which he was promoted, he is entitled to sixteen days' pay for his services during the remainder of said month. Where a clerk resigned to take effect July 26 and was paid for twenty-six days, and there was a vacancy in the position on July 27, his successor, who was appointed to take effect July 28, is entitled to four days' pay for his service during the remainder of the month.

(Comptroller Tracewell to George W. Evans, disbursing clerk, August 11, 1904.)

I have received your letter of the 4th instant, as follows:

"In the preparation of the pay rolls of this Department several points have presented themselves upon which this Office respectfully requests your interpretation of the new Government salary tables:

"1. A clerk at $1,000 per annum is promoted to a clerkship of class 1, to take effect July 16, his predecessor in this grade (class 1) having resigned on July 10. Shall he be paid for fifteen or sixteen days at $1,200 per annum?

"2. A clerk resigns to take effect July 26 and is paid for twenty-six days; his successor is appointed to take effect July 28. Is the latter entitled to three days' or to four days' pay?"

You do not present voucher covering your proposed questions, but I assume for the purposes of this decision that pay rolls involving the service about which you ask are now before you for payment.

1. You are authorized to pay the clerk who serves under the circumstances stated in your first question for sixteen days' service at $1,200 per annum.

2. You are authorized to pay the clerk who serves the last four days in July under circumstances stated in your second question for four days' service.

These answers are made on the assumption that no clerk was paid for service in the grade of class 1 to which the clerk at $1,000 per annum was promoted from July 10 to 16, and that a vacancy existed in the case stated in your second question on July 27.


The practice of making payments of monthly compensation in the RevenueCutter Service on the next to the last day of a month when the last day falls on a Sunday or legal holiday, although provided for by regulation, is not authorized by law, and where a disbursing officer makes such payments he does so at his own risk.

(Comptroller Tracewell to the Secretary of the Treasuary, August 15, 1904.)

With your communication of August 12, 1904, you trans mit a communication from the collector of customs at Boston, dated August 9, 1904, and request my decision of the question which is presented therein, as follows:

"I respectfully ask that when the last day of the month falls on Sunday or a holiday, and a request is made by the commanding officer of a revenue cutter at this port to have payment made to crew on the day preceding, he having certified as approving officer on the pay roll under authority of Department Circular, No. 76, dated June 26, 1903, whether I am authorized to grant his request.

"Under the new system of pay table, if one of the crew in a month of thirty-one days should be paid on the day preceding the 31st and deserted on the last day of the month, no forfeiture of pay would ensue as required by paragraph 671, Regulations, U. S. Revenue-Cutter Service, 1894."

A practice has grown up in the departmental service, and in the service outside of the Departments, to pay officers, clerks, and other employees on the 14th, or the day preceding the last day of the month, when the 15th or the last day of the month falls on Sunday or a holiday.

You quote a regulation of the revenue service authorizing such payment.

As has often been observed in the decisions of the courts and of this Office, regulations do not make law, and can not suspend law. They are practical methods of operating under general laws, and are the appropriate vehicles to carry into effect general laws in a particular instance.

It is well understood that death separates from official service all officers, clerks, and employees, and that compensation or pay can only legally be made to persons while in the public service. If a disbursing officer should pay an officer, clerk, or employee on the 14th of a month or on the day preceding the last day of the month for the full month's service, and such person should die or go out of the service at the close of either of said days, an overpayment of one day's pay would be made in either instance for which the disbursing officer could not receive credit. This would be equally the case if the 14th or the next to the last day of the month fell on a Sunday or legal holiday.

While ordinarily no official work is required on such days, it may be required, and a person not in the service on such days can not be paid therefor any more than he can be paid for other days when not in the public service.

If you make such payments as indicated, they will be made at your own risk.

I do not think it follows that under the law upon which the new pay table is founded, that if a member of the crew in a thirty-one day month deserted on the 30th day of said month, that a forfeiture of pay would not result.


A clerk of the court is not, by the provisions of section 1028, Revised Statutes, required to make copies of capiases at the time such writs are issued and delivered to the marshal for service, because they are not writs of commitment per se, and he is not entitled to fees for making such copies.

(Decision by Comptroller Tracewell, August 16, 1904.)

The Attorney-General, July 5, 1904, requested the revision of the account of John S. Burton, clerk of the United States

district court for the northern district of Mississippi, for the quarter ending June 30, 1903, as finally settled by the Auditor for the State and other Departments per certificate dated November 14, 1903, and that certain charges allowed by the Auditor for making copies of capiases be disallowed for the reason that, under the facts, the issuance of these copies is "vexatious, burdensome and oppressive."

During the quarter referred to capiases were issued for 350 defendants, and an examination of Mr. Burton's account for the quarter ending December 31, 1903, shows that during the latter quarter capiases were again issued for 250 of the same defendants, leaving 100 against whom capiases were not again issued.

Of this 100, 51 were defendants in one case, No. 5114, violation of antitrust laws, which was dismissed October 9, 1903, apparently, without either of the capiases issued in the June quarter having been executed. This conclusion is based upon the fact that the clerk in his charges for making the final record in this case made no charge for recording capiases, and it is his practice to include executed capiases in the final record.

This leaves 49 which appear to have been executed, and which were disposed of as follows: 1 case dismissed; 2 consolidated with the other cases against same defendants; 33 by trial and verdict; 7 by pleas of guilty, and the remainder continued.

In 36 of the 43 cases disposed of, the defendants (one in each case) appear to have given bonds before commissioners for their appearance at court, leaving 7 who were probably committed on capiases. This conclusion is reached from the fact that in the cases first referred to the clerk has charged for both capias and bond in the final record, while in the 7 remaining cases charge for capias only in such record is made. Of the six whose cases were continued, three were recognized before the clerk for their appearance at the next term, while as to the other three no such recognizance was given, so they were either released without bond or had already given bonds before commissioners.

The fees claimed for making copies of the 350 capiases in the said June quarter are 65 cents each and aggregate $227.50; so if the facts above set out are correct, or approximately correct, the Government is called upon to pay that amount

for the commitment of perhaps not more than a dozen defendants, who, if they had been committed by commissioners or by the clerk on formal mittimuses, would have cost less than $25. And, further, we have the additional claim in the December quarter account for 250 copies of capiases ($162.50) issued for that number of the same defendants issued against in the June quarter. Surely this is a "vexatious, burdensome and oppressive practice," and, unless it be clearly authorized by law, ought not to be allowed.

I do not undertake to say that the facts herein set out respecting defendants who appear to have been arrested on capiases issued during the June quarter are absolutely correct, nor do I think that they or the facts touching those issued and not executed materially affect the question, for if it is the duty of this clerk, under the law, to issue these copies it matters not how many capiases were issued or whether there were numerons commitments thereunder or none at all.

The practice, however, appears to be peculiar to this district, for so far as I am advised, or have been able to ascertain, in no other district in the United States, not even the southern district of Mississippi, does the clerk make copies of capiases or bench warrants at the time they are issued and delivered to the marshal for execution. But the fact that no other clerk follows this practice is not sufficient to deprive this clerk of the fees in question if he is required or authorized by law to make such copies, and my sole purpose in bringing out the facts first alluded to was to show to what an apparently unnecessary expense the Government was being subjected in the matter of issuing capiases and alias capiases in this district.

Mr. Burton, in his reply to the Attorney-General's request, contends that the services rendered are required of him by law and the fees claimed are authorized. Among other things he says:

"When a capias is issued it is presumed that it will be executed as a matter of course; and, if executed, a duly authenticated copy is absolutely necessary to authorize the jailer to receive and hold the prisoner. (See sec. 1028, Rev. Stat.; Erwin v. U. S., 37 Fed. Rep., p. 470; Clough v. U. S., 55 Fed. Rep., p. 921; and sec. 4142, Annotated Code of Miss., p. 912; and sec. 828, Rev. Stat.) Therefore I maintain that the copy is as essential as the writ itself."

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