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DECISIONS

OF

The First COMPTROLLER (WILLIAM LAWRENCE) IN THE DE

PARTMENT OF THE TREASURY OF THE UNITED STATES.

1881.

IN THE MATTER OF THE RIGHT TO HOLD TWO CLERKSHIPS IN THE INTERIOR DEPARTMENT, AND RECEIVE THE SALARY IN FULL OF ONE AND IN PART OF THE OTHER-EVANS'S CASE.

1. A fourth-class clerk in the Interior Department, having a salary fixed by law,

cannot be paid a sum in addition “for services in recording and filing contracts” in the Returns Office, created by the act of June 2, 1862, now section 512 of the Revised Statutes. This result arises from the Revised Statutes, sections 170, 1764, 1765, and from the act of June 20, 1874, (18 Stats., 101, 109,

sec. 3.) 2. When a disbursing clerk renders an account for the payment of salaries, he cannot

in such account have credit for moneys paid for services” which do not per

tain to the offices for which Congress has appropriated fixed salaries. 3. Appropriations for the payment of salaries, as usually made in appropriation acts,

can be applied, as a general rule, only to pay public officers the salaries pre

scribed by law for the performance of official duties. 4. When one clerk in a Department performs the duties of another clerk, no com

pensation can be made for the performance of such duties beyond the salary provided by law for the office of clerk which he holds. (Rev. Stats., 1764 ;

15 Op. Att-Gen., 30.) 5. A clerk who, as such, is entitled to payment of a salary fixed by law, cannot be

paid for “services in recording and filing contracts in the Returns Office, per act of June 2, 1862,” (Rev. Stats., 512,) although he holds the office of a first

class clerk, to which he was appointed under that act to perform such services. 6. A person who holds an appointment as a fourth-class clerk, and also as a first-class

clerk, is generally entitled to the salary fixed by law for both offices. 7. An officer is, primâ facie, entitled to the payment of the salary authorized by law

for his office. & The head of a Department cannot reduce a salary fixed by law, or stipulate that

the services of an officer shall be performed for a less sum than that so fixed.

The power to do so would, in effect, be a power to modify the law. 9. An officer entitled to a salary cannot be paid unless there be an appropriation

available for the purpose. 10. The osage as to a “lapse fund” stated.

H. Ex. Doc. 219-1

11. An officer may relinquish his right to salary by refusing to perform the duties of

his office, or by stipulating to perform the duties as unofficial services for a sum less than the prescribed salary, even though such service and stipulation be illegal and can give him no right to the sum stipulated for.

Richard Joseph, the disbursing clerk in the Interior Department, in July, 1880, filed his accounts with the First Auditor in the Department of the Treasury for adjustment for the second quarter of the calendar year 1880, being the fourth quarter of the fiscal year 1880. (Rev. Stats., 440; 20 Stats., 198; 21 Stats., 23, 230.) Among the items for which he asks (redit is the following. “THE UNITED STATES,

To GEORGE W. EVANS, DR. 61880. “June 30. To services rendered from July 1, 1879, to June 30, 1880,

in recording and filing contracts in the Returns Office, per act of June 2, 1862..

$200 * Approved: 6C. SCHURZ, Secretary.

“Charge ·Salaries, Secretary's Office. "Received, at Washington, D. C., June 30, 1880, of R. Joseph, disbursing clerk, Department of the Interior, two hundred dollars, in full of the above account.

“GEO. W. EVANS." The account filed by the disbursing clerk has a caption as follows:

“ The United States, in account with Richard Joseph, disbursing clerk, for the month ending June 30, 1880, under the appropriation for Salaries, Secretary's Office, 1880."

The First Auditor, in adjusting the account, disallowed the voucher referred to, upon the ground that Evans was, during all the year 1880, a fourth-class clerk in the office of the Secretary of the Interior.

The papers were referred, August 23, 1880, to the First Comptroller to decide whether the balance due the United States of $226.49, as stated by the First Auditor, should be certified, or whether the disbursing clerk should have credit on the voucher for the $200.

The appropriation for salaries of Secretary's Office in the Interior Department included, besides others, those for "five clerks of class one, one of whom shall be the telegraph-operator of the Department.” (20 Stats., 198; 21 Stats., 230.) The claimant Evans also presents a paper as follows:

“DEPARTMENT OF THE INTERIOR,

Washington, D, C., January 4, 1881. “I, C. Schurz, Secretary of the Interior, do hereby certify that George W. Evans was the returns clerk of this Departınent for the fiscal year

ending June 30, 1880, and as such he was required by law to make certificates to accompany copies of contracts and other papers on file in the Returns Office, when called for by the U. S. courts, evidence of which can be found in the U. S. Court of Claims, &c.

"In witness whereof, I have hereunto set my hand and caused the seal of the Department of the Interior to be affixed, the date herein before written.

“C. SCHURZ, Secretary of the Interior."

George W. Evans submitted to the First Comptroller a letter dated December 15, 1880, in support of the legality of the payment made to him for services as returns clerk.

After quoting section 1763 of the Revised Statutes, he says, iu substance:

The salary of returns clerk is provided for by law. Section 512 of the Revised Statutes provides that the Secretary of the Interior shall appoint a clerk of the first class to attend to the same. This salary has heretofore been paid out of the appropriation for salaries in the office of the Secretary of the Interior. The Secretary of the Interior has not paid the full amount provided for in section 512, for the reason that the amount of work required was not sufficient to justify the pay. ment of $1,200 per annum. I was appointed to discharge the duties of this office, in addition to those of a fourth-class clerk in the disbursing office. The duties were performed after office-hours, and did not in any way interfere with my duties in the disbursing office. By allowing me the $200 per annum the Department makes an annual saving of $1,000.

I invite your attention to the similar case of R. W. C. Mitchell, at that time a fourth-class clerk, salary $1,800] in the Interior Department, and who was allowed (by Hon. A. G. Porter, First Comptroller] additional compensation for services as a special United States commissioner in taking testimony for use in the United States Court of Claims. This was supported by an opinion from the Attorney-General. Also the claims of Mary Fuller, for $200; M. P. Winslow, for $100; and M. Porter Snell, for $100; allowed in August, 1880, by the Deputy First Comptroller) in the settlement of the account current of R. Joseph, disbursing clerk, Department of Interior, for the second quarter 1880, "for services in connection with publishing the Biennial Register," all regular employés of this Department drawing annual salaries. They were allowed this additional compensation for performing extra services in connection with the publication of the Biennial Register. They did not pass through your office by any inadvertence on the part of the accounting clerks of your office, but were properly questioned by your office, and explained by this Department during the time of settlement.

My claim is strengthened by section 512 of Revised Statutes. My combined salaries amount to $2,000, and come within the provisions of section 1763.

I refer to the several decisions made by your predecessor, Hon. A. G. Porter, relative to claims for additional pay, where the combined amounts did not exceed $2,500. (And see Herndon case, August 2, 1880, Decisions of Compt., 45.)

DECISION BY WILLIAM LAWRENCE, First Comptroller :

The Revised Statutes contain the following provision, taken from the act of June 2, 1862, (12 Stats., 412, sec. 4:)

“SEC. 512. The Secretary of the Interior shall from time to time provide a proper apartment, to be called the Returns Office, in which he shall cause to be filed the returns of contracts made by the Secretary of War, the Secretary of the Navy, and the Secretary of the Interior, and shall appoint a clerk of the first class to attend to the same." (See also secs. 3744-3747.)

The claimant in this case, Mr. Evans, is a fourth-class clerk in the Department of the Interior, having an annual salary of $1,800. The services for which it is claimed compensation should be allowed in the settlement of the account of the disbursing clerk were performed either (1) as services outside of the duties of a fourth-class clerk, and not as duties of the first-class clerk appointed under section 512 of the Revised Statutes; or (2) by virtue of an appointment as such first-class clerk while holding also the office of fourth-class clerk.

1.-Can the claim be allowed in the first view presented ? Clearly it cannot.

1. In this view it is a sufficient objection to the allowance of the claim in this account of the disbursing clerk, that he is asking credit as for salaries paid.

In the view now being considered, the item of $200 in favor of Evans is not for salary, and hence cannot be paid out of an appropriation for salaries; and so cannot be credited to the disbursing clerk in an account charging the appropriation for salaries.

Bouvier says a salary " is usually applied to the reward paid to a public officer for the performance of his official duties.” (See “Salary.")

It is sometimes applied to other services; but, as used in the appro priation act applicable here, it means the reward to be paid for official services.

Possibly a better definition of a salary would be, A sum fixed by law to be paid an officer, as the compensation to which, as such, he is entitled. It is often paid, and lawfully paid, without “the performance of official duties.” A person may hold an office, and tender his services, but be denied by an official superior the opportunity to perform them; or, it may happen that, for other reasons, no services are actually required.

2. But this only decides the question as to this account of the disbursing clerk.

a. In the view now being considered—that the item of $200 is for services not rendered technically as a clerk in office—the claim cannot

in any mode be paid, because payment is prohibited by sections 170 and 1765 of the Revised Statutes, and by the act of June 20, 1874, (18 Stats., 101, 109, sec. 3.)

The services for which the payment of $200 is claimed were not a part of the duties of a fourth-class clerk. They were other services, and, in the view now being considered, unofficial, but authorized by law.

In Converse vs. United States, (21 How., 473,) it was decided, that a salaried officer, who performs services not connected with his office but (1) authorized "by existing law," (2) for which the compensation is fixed in amount by law, and (3) for the payment of which there is an appropriation applicable, may be paid for such additional services. In such case no discretion is left to any officer over the amount to be paid.

It was in accordance with this case, that the opinion of the AttorneyGeneral of February 7, 1877, (15 Op., 608,) held that “where the service in question is one required by law, but not of any particular official, and compensation therefor is fixed by competent authority, and is appropriated, the officer who under due authorization performs the service, is entitled to the compensation.”

This was a case in which the United States Minister to the Hawaiian Islands, with an annual salary of $7,500, received compensation as attorney for supervising and taking testimony to be used in the Court of Commissioners of Alabama Claims. The services were authorized by law, an appropriation was made therefor; the law did not fix the amount thereof, but it was fixed by the presiding judge of said court, as expressly authorized by law. (Act June 23, 1874, secs. 4–11; 18 Stats., 246.) This opinion carries the right to double compensation quite far enough.

Whiting's case, as shown in the opinion of the Attorney-General of January 13, 1863, (10 Op., 436,) is a direct authority against the claimant. Whiting was a clerk in the Interior Department, with an annual salary of two thousand dollars. After Congress transferred to the Interior Department the supervision of the Capitol extension and new dome, the Secretary of the Interior appointed Mr. Whiting to take charge of all the correspondence relative to the Capitol extension and new dome, and to keep the files relating to that business, and agreed to pay him five hundred dollars per annum, from the appropriation made for those works. It was held that he could not be paid, in addi. tion to his salary of two thousand dollars, compensation fixed in the discretion of the Secretary of the Interior for services in taking charge of the correspondence and files of the new business of the Department in respect of the extension of the Capitol.

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