Comptroller General McCarl to the Public Printer, July 26, 1934:

Further reference is made to letter of April 17, 1934, as follows:

I submit the following appeal from disallowances issued by your Office March 21, 1934, to E. J. Wilver, disbursing clerk, symbol 92633:

"A per-annum employee in a nonpay status immediately preceding and immediately following a holiday is not entitled to pay for the intervening holiday on which no service is performed (12 Comp. Gen. 534). Reply of March 7, 1934, on form 2085 noted. Laws and decisions cited apply to hourly or per diem employees only."

United States Code, title 44, section 44, provides that employees of the Government Printing Office shall be allowed legal holidays with pay. The word "employees" is all-inclusive; no differentiation is made between annual and hourly employees.

In decision by Comptroller Warwick, February 16, 1916 (22 C.D., pp. 404406), it was ruled:

"For the 60 days' period covered by these rules [now reduced to 30 days] they are employees of the Office and are entitled to the same right in the matter of pay for holidays as other employees on duty or on leave with pay." Also

"Employees should not be paid for holidays except for such as occur within the period of 60 days [now reduced to 30] covered by the rules."

The rule above referred to is: employees are paid for holidays occurring within a period of not exceeding 30 days' leave of absence without pay.

It is submitted that the decision quoted in disallowances (C.G. 12, page 534) does not support the disallowances. On the other hand, that decision quoted section 46 of the Act of January 12, 1895, to the effect that employees of the Government Printing Office shall be allowed legal holidays with pay. The facts that current appropriation for the Government Printing Office authorizes the Public Printer to comply with the provisions of law granting holidays to employees of the Government Printing Office with pay; that the holiday pay in disallowance covered a legal holiday; that the leave law embraces "employees", and not only those employees on an hourly basis, all appear to make the disallowances contrary to intent and wording of law. Further, for at least 40 years, under original holiday law, employees of the Government Printing Office have received pay for holidays, within existing rule, without regard to work before or after such holiday, and the accounts have been passed.

In view of the above, I request the disallowances above listed be removed, and the accounts passed.

Section 46 of the act of January 12, 1895, 28 Stat. 607, provides as follows:

The employees of the Government Printing Office shall be allowed the following legal holidays with pay, to wit: The first day of January, the twentysecond day of February, the fourth day of July, the twenty-fifth day of December, Inauguration Day, Memorial Day, Labor's Holiday, and such day as may be designated by the President of the United States as a day of public fast and Thanksgiving.

This was enacted at a time when there were few per-annum employees at the Government Printing Office. The great majority of the employees were, and it is understood are now, paid on a perhour or per-diem basis, who, therefore, would not be entitled to pay for legal holidays when the office is closed were it not for the special statute. On the other hand, employees whose compensation is fixed on an annual basis are in an actual or presumptive duty status on, and paid for, every day of the year, including legal holidays, unless on leave without pay or absent without authority. Hence, no special statute was necessary to prevent them from losing pay due to the closing of the office on account of a holiday. Accordingly, the phrase, “employees of the Government Printing Office ", in the act of 1895, supra, was intended and must be construed to have reference only to the per-hour or per-diem employees for whom special legislation was necessary to authorize payment for legal holidays, in line with the more general statutes of January 6, 1885, 23 Stat. 516, and February 23, 1887, 24 Stat. 644. As was said in decision of February 14, 1901, 7 Comp. Dec. 433, 434—

The object of the act of January 12, 1895, supra, giving pay for the holidays named, is clearly to prevent the employees of the Government Printing Office from being obliged to lose pay which they might otherwise earn, owing to the temporary closing of the Office on account of the holidays, and not to absolutely grant them pay for these days, irrespective of other conditions which might affect their rights in the premises.

In my letter of May 23, 1934, reference was made to the statement in the quoted letter of April 17 that—

for at least 40 years, under original holiday law, employees of the Government Printing Office have received pay for holidays, within existing rule, without regard to work before or after such holiday, and the accounts have been passed.

and your attention was invited to a letter from the Public Printer, dated February 9, 1901, quoted in the decision of February 14, 1901, 7 Comp. Dec. 433, 434, wherein it was stated:

It has been the custom of this Office for some years past not to pay those of its employees for a holiday who were absent both the day preceding and the day following a holiday, upon the principle that those absent would not, in all probability, have worked on the day that such holiday occurred had the day not been a holiday; otherwise employees who may be absent on account of sickness and who may have exhausted their annual leave of absence would be paid for a holiday which might occur during such absence.

In your letter of June 26, 1934, in reply to my said letter of May 23, 1934, you erroneously refer to said letter as "dated February 6, 1906", whereas it was really dated February 9, 1901, and you suggest that the statement in said letter as to what the practice had been for "some years past " did not indicate that the practice may not have been otherwise from the date of the act (January 12, 1895) up to the beginning of the period which, in the letter of February 9,

1901, was referred to as "some years past." However, it would seem more likely that the " some years" meant over 6 years which would extend back to the date of the act. Hence, there would appear no reasonable basis for any assumption that the practice which had existed for "some years" prior to February 1901, and which the decision of February 14, 1901, authorized to be continued thereafter, had not maintained continuously since January 12, 1895, the date of the act.

The cited decision of the Comptroller of the Treasury, dated February 16, 1916, 22 Comp. Dec. 404, reversing the action of the auditor in disallowing by settlement no. 7407, dated December 7, 1915, credit for payments aggregating $704.99 made to employees of the Government Printing Office for holidays occurring within periods of authorized absence without pay during the fiscal year ended June 30, 1915, was specifically limited to employees of the Government Printing Office other than per-annum employees as indicated both in the body of the decision and in the syllabus thereof. Any doubt that otherwise may have existed as to what was intended by said decision in this respect was clearly removed by letter of February 21, 1916, to the Public Printer, as follows:

Referring to my decision to you of the 16th instant, reversing the action of the Auditor for the State and other departments in disallowing by settlement no. 7404, dated December 7, 1915, credit for payments aggregating $704.99 made to employees of the Government Printing Office for holidays intervening periods of authorized absence without pay during the fiscal year ending June 30, 1915, your attention is invited to the fact that said decision was rendered upon the assumption that all of these employees were per-diem employees.

The Auditor now informs me that the amount involved included a payment of $5 made to Frank E. Buckland and a payment of $4 made to George Oyster, both per-annum employees. Therefore, the amount allowable under said decision is $695.99 instead of $704.99, and the certificate of differences has been amended accordingly.

To the same effect is decision of April 15, 1924, to the Public Printer, 3 Comp. Gen. 756, 759, specifically holding as follows:

Per-annum employees are paid for each day in the year, and when a holiday occurs during a period of absence without pay, no pay is due for the holiday; that is, there must be deducted in such case one day's pay for each day of absence, including Sundays and holidays not occurring at the beginning or ending of the period.

See also decision to the Public Printer, dated February 28, 1933, 12 Comp. Gen. 534, wherein the holiday statute for the Government Printing Office, supra, was limited to per-diem employees on a 5-day week.

In decision dated June 5, 1933, A-48194, denying the request of the Public Printer that the Government Printing Office be permanently exempted from the requirement that pay rolls indicate the periods of absence of employees without pay (9 Comp. Gen. 481), it was stated as follows:

Furthermore, the particular days and hours an employee is absent without pay is essential in order to determine whether the various rules announced in decisions of the accounting officers have been complied with in making deduction from pay for the period of absence. That is, certain of these rules require different amounts to be deducted, depending on whether the absence without pay precedes and/or follows a holiday and/or Sunday, etc. (See 20 Comp. Dec. 38; 22 id. 440; 23 id. 893; 26 id. 687; 3 Comp. Gen. 1022; 5 id. 935; 9 id. 481; 11 id. 119, 129, 216.) There are both per-annum and per-diem employees under the Government Printing Office.

The current appropriation for the Government Printing Officereferred to in your letters of April 17 and June 26-authorizing the Public Printer to comply with the provisions of law granting holidays to employees of the Government Printing Office, is no broader and has no different application than the basic statute and the decisions thereunder.

Accordingly, the disallowances in this case must be and are sustained.

(A-56582)

CLASSIFICATION-EXECUTIVE ORDER-FEDERAL ALCOHOL

CONTROL ADMINISTRATION

The pay rolls on file in the General Accounting Office for December 1933 and January 1934, showing that with two exceptions the personnel on the rolls of the Federal Alcohol Control Administration were originally assigned grades and salary rates prescribed by Executive Order No. 6440, dated November 18, 1933, which are also the grades and salary rates prescribed by Executive Order No. 6746, dated June 21, 1934, the only justification for a reclassification of the positions under the later Executive order would be that the original classification pursuant to the first Executive order was merely arbitrary without regard to the duties and responsibilities of the positions. In connection with any reclassification pursuant to the later Executive order, no increase in compensation may be made which amounts to an administrative promotion" within the meaning of the decisions of the Comptroller General, unless there are available sufficient savings on an annual basis.

No exception will be taken in the accounts to salary rates of employees of an emergency agency not corresponding with the salary rates fixed in the Executive Orders No. 6440, dated November 18, 1933, and No. 6746, dated June 21, 1933, for any period prior to the time the requirement for classi fication of positions was extended by Executive order to such agency. Comptroller General McCarl to the Director, Federal Alcohol Control Administration, July 26, 1934:

There has been received your letter of July 2, 1934, as follows:

We are enclosing herewith a series of notices of exceptions taken by the General Accounting Office to payments made by the Federal Alcohol Control Administration between the salary pay periods of December 4th and 15th, and December 16th and 31st, 1933. These notices were received on June 26, 1934, and the request of the General Accounting Office for an explanation from the Federal Alcohol Control Administration has for the first time brought to the attention of the Administration the existence of any irregularities in its preparation of past pay rolls. Explanations of these exceptions have been prepared and are attached hereto for your acceptance and approval.

None of the Executive Orders, namely, Nos. 6440, 6554 and 6746, have been brought to the attention of the Administration until June 26, 1934, when we received from the General Accounting Office the series of suspended vouchers

which we are returning herewith. Until the date of receipt of these Executive orders, this office has been operating under the authority vested in it by Executive Order No. 6474, creating the Federal Alcohol Control Administration. Section 7 of this Executive order reads as follows:

"The Administration shall fix the compensation and define the powers and duties of the Director. The Director shall appoint and fix the compensation of such officers and employees of the Administration without regard to the civil-service rules and the Classification Act of 1923, as amended, and shall make such expenditures as may be necessary to carry out the powers and duties of the Administration."

It is now evident that the status of the Federal Alcohol Control Administration is that of an emergency agency, and the amendment made in Executive Order No. 6554, to Executive Order No. 6440, has brought the Administration within the application of the latter order. Involved in the complications of organization, the Administration continued to make salary payments as prior to January 10, 1934, unaware of the necessity for classification required by Executive Orders Nos. 6440 and 6554, having learned of this necessity for the first time on June 26, 1934. Therefore, the Federal Alcohol Control Administration is immediately taking steps to comply with the terms of the above Executive orders and such adjustments in existing rates of compensation to conform with the terms of the Classification Act will be made as soon hereafter as found practicable.

Directing the attention of the Comptroller General to the unusual difficulties with which the Administration has been faced during its period of development, it is respectfully urged that the Comptroller General will except the Administration from the application of the earlier Executive orders until a suitable classification of its positions can be developed as required by Executive Order No. 6746, of June 21, 1934.

The Administration is keenly desirous of adopting the correct procedure, and your kind indulgence and assistance will be appreciated.

Notwithstanding the statements in the second paragraph of the quoted letter, the pay rolls in this office for December 1933 and January 1934 show, with two exceptions, that the positions of all the personnel then on the rolls of the Federal Alcohol Control Administration were originally assigned grades and salary rates prescribed by Executive Order No. 6440, dated November 18, 1933, which are also the grades and salary rates prescribed by Executive Order No. 6746, dated June 21, 1934. Payments were made at such rates less the percentage reduction. It is not understood, therefore, on what basis a reclassification of the positions is required unless the original classification, pursuant to the Executive order, was merely arbitrary without regard to the duties and responsibilities of the positions. In connection with any reclassification undertaken pursuant to the most recent Executive order, your attention is invited to the decision of this office, dated July 5, 1934, A-55907, 14 Comp. Gen. 14.

The first exception noted to the Executive-order classification was the position of attorney occupied by Wallace A. Russell, whose original salary rate as of December 12, 1933, date of appointment, was fixed at $2,400 per annum, which is not a salary rate fixed by the Executive orders. His position was shown on the rolls as in EO grade 8. Effective December 16, 1933, his salary rate was increased from $2,400 to $2,600 per annum, the salary rate for grade 9 as pre