A-10394, JULY 23, 1925, 5 COMP. GEN. 49

A-10394: Jul 23, 1925

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OF LIGHTHOUSE KEEPERS AND OTHER FIELD EMPLOYEES OF THE LIGHTHOUSE SERVICE WHOSE SALARIES HAVE BEEN ADJUSTED TO CORRESPOND TO RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923. WILL. THE PROPERTY OF EMPLOYEES WHOSE COMPENSATION IS NOT FIXED BY LAW. THE AMOUNT THEREOF IS WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE. WHERE SUCH ARTICLES ARE REQUIRED IN THE USE OF THE LIGHTHOUSE SERVICE. TRANSPORTATION OF PERSONAL HOUSEHOLD EFFECTS WHEN EMPLOYEES ARE TRANSFERRED FROM ONE STATION OR DISTRICT TO ANOTHER WILL ORDINARILY NOT BE PAID FOR BY THE GOVERNMENT. WHOSE TRANSFER IS REQUIRED BY THE EXIGENCIES OF THE SERVICE. WHEN IT IS NOT PRACTICABLE TO TRANSFER THE HOUSEHOLD EFFECTS BY TENDER.

A-10394, JULY 23, 1925, 5 COMP. GEN. 49

TRANSPORTATION OF HOUSEHOLD EFFECTS OF EMPLOYEES OF LIGHTHOUSE SERVICE IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR, THE COST OF PACKING, CRATING, HAULING, AND TRANSPORTATION OF HOUSEHOLD EFFECTS, UPON PERMANENT CHANGE OF STATION, OF LIGHTHOUSE KEEPERS AND OTHER FIELD EMPLOYEES OF THE LIGHTHOUSE SERVICE WHOSE SALARIES HAVE BEEN ADJUSTED TO CORRESPOND TO RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, MAY NOT BE PAID FROM APPROPRIATED FUNDS. PAYMENTS MADE ON ACCOUNT OF NECESSARY EXPENSES INCIDENT TO SUCH TRANSPORTATION IN CONNECTION WITH TRANSFERS ORDERED PRIOR TO AUGUST 1, 1925, WILL, IF OTHERWISE CORRECT, NOT BE DISALLOWED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JULY 23, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 2, 1925, REQUESTING A DECISION OF A QUESTION THEREIN PRESENTED, AS FOLLOWS:

BASED ON A DECISION OF THE COMPTROLLER OF THE TREASURY DATED FEBRUARY 25, 1913, THIS DEPARTMENT MADE THE FOLLOWING REGULATIONS RELATIVE TO THE TRANSPORTATION OF PERSONAL HOUSEHOLD EFFECTS OF EMPLOYEES OF THE LIGHTHOUSE SERVICE:

"337. TRANSPORTATION OF TOOLS AND BEDDING.--- TOOLS AND BEDDING, THE PROPERTY OF EMPLOYEES WHOSE COMPENSATION IS NOT FIXED BY LAW, BUT THE AMOUNT THEREOF IS WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE, MAY BE TRANSPORTED AT THE EXPENSE OF THE GOVERNMENT, WHERE SUCH ARTICLES ARE REQUIRED IN THE USE OF THE LIGHTHOUSE SERVICE. THIS SHOULD BE CONFINED STRICTLY TO PROPERTY USED IN THE SERVICE OF THE GOVERNMENT.

"338. TRANSPORTATION OF PERSONAL HOUSEHOLD EFFECTS WHEN EMPLOYEES ARE TRANSFERRED FROM ONE STATION OR DISTRICT TO ANOTHER WILL ORDINARILY NOT BE PAID FOR BY THE GOVERNMENT, BUT IN THE CASE OF LIGHTHOUSE KEEPERS, WHOSE TRANSFER IS REQUIRED BY THE EXIGENCIES OF THE SERVICE, WHEN IT IS NOT PRACTICABLE TO TRANSFER THE HOUSEHOLD EFFECTS BY TENDER, THE COST OF TRANSPORTATION OF SUCH REASONABLE AMOUNT OF PERSONAL HOUSEHOLD EFFECTS AS IS NECESSARY TO ENABLE SUCH KEEPERS TO PROPERLY PERFORM THEIR OFFICIAL DUTIES WILL BE ALLOWED. (COMP. DEC., FEB. 25, 1913.) WHERE PRACTICABLE SUCH TRANSPORTATION SHOULD BE COVERED BY GOVERNMENT BILL OF LADING, OR IF ON COMMERCIAL BILL OF LADING THE BILLS SHOULD BE RENDERED TO THE DISTRICT OFFICE FOR PAYMENT RATHER THAN PAID BY THE KEEPER AND REIMBURSEMENT CLAIMED. ORDERS SHOWING THE AUTHORIZED TRANSFER OF THE KEEPER AS AN EXIGENCY OF THE SERVICE SHOULD ACCOMPANY SUCH ACCOUNTS.'

(REGULATIONS OF THE U.S. LIGHTHOUSE SERVICE, 1918.)

SINCE THE PROMULGATION OF THESE REGULATIONS THIS DEPARTMENT HAS BEEN REIMBURSING ITS LIGHTHOUSE EMPLOYEES FOR TRANSPORTATION EXPENSES INCURRED IN TRANSPORTING HOUSEHOLD EFFECTS WHEN TRANSFERRED FROM ONE STATION TO ANOTHER, UNDER THE REGULATIONS QUOTED ABOVE.

IN THE DECISION OF YOUR OFFICE DATED MARCH 28, 1925 (DECISIONS OF THE COMPTROLLER GENERAL, VOLUME 4, PAGE 818), IT WAS HELD THAT,"IN ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR THE COST OF PACKING, CRATING, HAULING, AND TRANSPORTATION OF HOUSEHOLD EFFECTS OF EMPLOYEES * * * MAY NOT BE PAID FROM APPROPRIATED FUNDS.' THE DEPARTMENT INTERPRETS THIS DECISION TO APPLY ONLY IN CASES WHERE THE EMPLOYEE'S SALARY IS FIXED BY LAW. THE ACT APPROVED JUNE 20, 1918 (40 STAT. 609, SEC. 8), PROVIDES:

"THAT SECTION FORTY-SIX HUNDRED AND SEVENTY-THREE OF THE REVISED STATUTES OF THE UNITED STATES BE AMENDED TO READ AS FOLLOWS:

" "SEC. 4673. THE SECRETARY OF COMMERCE IS AUTHORIZED TO REGULATE THE SALARIES OF THE RESPECTIVE KEEPERS OF LIGHTHOUSES IN SUCH MANNER AS HE DEEMS JUST AND PROPER, BUT THE WHOLE SUM ALLOWED FOR SUCH SALARIES SHALL NOT EXCEED AN AVERAGE OF $840 PER ANNUM FOR EACH KEEPER; AND THE AUTHORITY HEREIN GRANTED TO REGULATE THE SALARIES OF KEEPERS OF LIGHTHOUSES SHALL NOT BE ABRIDGED OR LIMITED BY THE PROVISIONS OF SECTION SEVEN OF THE GENERAL DEFICIENCY APPROPRIATION ACT APPROVED AUGUST TWENTY-SIXTH, NINETEEN HUNDRED AND TWELVE, AS AMENDED BY SECTION FOUR OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL APPROPRIATION ACT APPROVED MARCH FOURTH, NINETEEN HUNDRED AND THIRTEEN.'"

UNDER THE ABOVE-QUOTED STATUTE THE SECRETARY OF COMMERCE IS AUTHORIZED TO FIX THE SALARIES OF LIGHTHOUSE KEEPERS. IT WOULD THEREFORE SEEM THAT YOUR DECISION OF MARCH 28, 1925, WOULD NOT BE APPLICABLE TO THESE EMPLOYEES, BUT IN VIEW OF THE GENERAL LANGUAGE OF YOUR DECISION OF MARCH 28, 1925, THE DEPARTMENT WOULD APPRECIATE YOUR DECISION AS TO WHETHER THE LIGHTHOUSE SERVICE REGULATIONS QUOTED ABOVE SHOULD BE CHANGED IN ACCORDANCE WITH YOUR DIRECTIONS IN THE DECISION OF MARCH 28, 1925.

THE ACT OF MAY 28, 1924, 43 STAT. 234, CONTAINS THE FOLLOWING APPROPRIATION FOR THE FISCAL YEAR 1925:

KEEPERS OF LIGHTHOUSES: FOR SALARIES OF NOT EXCEEDING ONE THOUSAND EIGHT HUNDRED LIGHTHOUSE AND FOG-SIGNAL KEEPERS AND PERSONS ATTENDING LIGHT EXCLUSIVE OF POST LIGHTS, $1,283,200.

IN THE DEFICIENCY ACT OF DECEMBER 6, 1924, 43 STAT. 706, AN ADDITIONAL SUM OF $402,100 WAS APPROPRIATED FOR SALARIES OF KEEPERS OF LIGHTHOUSES TO ENABLE THE ADJUSTMENT OF THEIR COMPENSATION TO CORRESPOND TO RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923. THE APPROPRIATION FOR THE FISCAL YEAR 1926, ACT OF FEBRUARY 27, 1925, 43 STAT. 1044, WAS EVIDENTLY ON THE BASIS OF THE ADJUSTED OR CLASSIFIED SALARIES AS IT IS IN EXCESS OF THE COMBINED AMOUNTS FOR 1925, I.E., $1,970,000.

IT WOULD APPEAR FROM THE FOREGOING THAT SECTION 4673, REVISED STATUTES, GIVING THE SECRETARY OF COMMERCE AUTHORITY TO REGULATE THE SALARIES OF KEEPERS OF LIGHTHOUSES, HAS BEEN REPEALED, SUPERSEDED, OR QUALIFIED BY THE CLASSIFICATION ACT OF 1923 AND THE ACT OF DECEMBER 6, 1924, SUPRA, AND THAT THE SALARIES OF LIGHTHOUSE KEEPERS ARE NOW "FIXED BY LAW" WITHIN THE MEANING OF SECTION 1765, REVISED STATUTES. PACKING, CRATING, AND SHIPPING THE HOUSEHOLD EFFECTS OF KEEPERS OF LIGHTHOUSES AT THE EXPENSE OF THE GOVERNMENT WOULD THEREFORE BE PROHIBITED AS ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, BY SAID SECTION OF THE REVISED STATUTES. KEEPERS OF LIGHTHOUSES ARE ACCORDINGLY IN THE SAME SITUATION AS THE FIELD EMPLOYEES OF THE SERVICES CONSIDERED IN THE DECISION OF MARCH 28, 1925, 4 COMP. GEN. 818.

IT WILL BE NOTED THAT THE DECISION OF MARCH 28, 1925, DID NOT REST SOLELY UPON THE PROVISIONS OF SECTION 1765, REVISED STATUTES, I.E., DID NOT APPLY SOLELY TO EMPLOYEES WHOSE SALARIES ARE FIXED BY LAW, BUT IT WAS STATED THEREIN:

FURTHERMORE, THE FACT THAT THE CONGRESS HAS SPECIFICALLY AUTHORIZED THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF EMPLOYEES OF SEVERAL SERVICES UNDER CERTAIN CIRCUMSTANCES AND CONDITIONS WOULD INDICATE THAT SUCH EXTRAORDINARY ALLOWANCES MAY NOT PROPERLY BE MADE BY REGULATION OR CONTRACT OF EMPLOYMENT ALONE, EVEN WHERE THE COMPENSATION IS NOT FIXED BY LAW OR REGULATION.

ANY REGULATION OF YOUR DEPARTMENT PROVIDING FOR PACKING, CRATING, OR TRANSPORTATION OF HOUSEHOLD GOODS OF LIGHTHOUSE KEEPERS OR OTHER FIELD EMPLOYEES, NOT BASED ON SPECIFIC STATUTORY AUTHORITY THEREFOR, IS ILLEGAL AND OF NO FORCE OR EFFECT. AS SUCH REGULATIONS IN THE LIGHTHOUSE SERVICE WERE BASED ON A PRIOR DECISION BY THE FORMER COMPTROLLER OF THE TREASURY OF FEBRUARY 25, 1913, 64 MS. COMP. DEC. 1026, THIS DECISION WILL NOT BE APPLIED TO REQUIRE THE DISALLOWANCE OF CREDITS FOR PAYMENTS MADE ON ACCOUNT OF NECESSARY EXPENSES INCIDENT TO SUCH TRANSPORTATION IN CONNECTION WITH SUCH TRANSFERS ORDERED PRIOR TO AUGUST 1, 1925, IN ACCORDANCE WITH THE PRESENT REGULATIONS. BUT WITH RESPECT TO ALL SUCH TRANSFERS THEREAFTER, NO ALLOWANCE FOR TRANSPORTATION OF HOUSEHOLD EFFECTS WILL BE AUTHORIZED IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR.