A-11529, NOVEMBER 27, 1925, 5 COMP. GEN. 382

A-11529: Nov 27, 1925

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SUCH APPOINTMENTS PROVIDING THAT THEY WERE TO "SERVE WITHOUT COMPENSATION OTHER THAN THAT PAID * * * BY THE UNITED STATES RAILROAD LABOR BOARD. THE CLAIM WAS DISALLOWED UPON THE GROUND THAT THE EMPLOYMENT WAS IN CONTRAVENTION OF SECTION 189. THERE IS NOW FILED WITH THE RECORD APPOINTMENTS BY ATTORNEY GENERAL DATED SEPTEMBER 13. THE APPOINTMENTS WHICH ARE IDENTICAL IN TERMS ARE WORDED AS FOLLOWS: YOU ARE HEREBY APPOINTED A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL OF THE UNITED STATES. TO ASSIST IN CERTAIN CONTEMPT PROCEEDINGS THAT ARE ABOUT TO BE BROUGHT IN A FEDERAL DISTRICT COURT AGAINST WITNESSES IN A DISPUTE WHICH IS STYLED. IN WHICH PROCEEDINGS THE GOVERNMENT IS INTERESTED. IN THAT CONNECTION YOU ARE SPECIFICALLY DIRECTED TO CONDUCT.

A-11529, NOVEMBER 27, 1925, 5 COMP. GEN. 382

PERSONAL SERVICES - ATTORNEYS AS THE APPROPRIATIONS OF THE UNITED STATES RAILROAD LABOR BOARD DO NOT SPECIFICALLY AUTHORIZE THE EMPLOYMENT OF ATTORNEYS AS REQUIRED BY SECTION 365, REVISED STATUTES, THE APPOINTMENT BY THE ATTORNEY GENERAL OF PRIVATE ATTORNEYS TO REPRESENT THE RAILROAD LABOR BOARD IN A PENDING PROCEEDING, SUCH APPOINTMENTS PROVIDING THAT THEY WERE TO "SERVE WITHOUT COMPENSATION OTHER THAN THAT PAID * * * BY THE UNITED STATES RAILROAD LABOR BOARD," DOES NOT ENTITLE SUCH ATTORNEYS TO ANY COMPENSATION FROM PUBLIC FUNDS.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 27, 1925:

ROBERT N. GOLDING REQUESTED AUGUST 24, 1925, FOR AND AS A MEMBER OF THE FIRM OF MCCORMICK, KIRKLAND, PATTERSON AND FLEMING, ATTORNEYS, REVIEW OF SETTLEMENT NO. 099905 OF AUGUST 17, 1925, DISALLOWING THEIR CLAIM FOR $5,155.70 FOR PROFESSIONAL SERVICE AS ATTORNEYS RENDERED IN THE CASE OF THE RAILROAD LABOR BOARD V. D. B. ROBERTSON AND MCGUIRE.

THE CLAIM WAS DISALLOWED UPON THE GROUND THAT THE EMPLOYMENT WAS IN CONTRAVENTION OF SECTION 189, REVISED STATUTES. THERE IS NOW FILED WITH THE RECORD APPOINTMENTS BY ATTORNEY GENERAL DATED SEPTEMBER 13, 1924, AND DECEMBER 2, 1924, OF WEYMOUTH KIRKLAND AND ROBERT N. GOLDING, RESPECTIVELY, AS SPECIAL ASSISTANTS TO THE ATTORNEY GENERAL. THE APPOINTMENTS WHICH ARE IDENTICAL IN TERMS ARE WORDED AS FOLLOWS:

YOU ARE HEREBY APPOINTED A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL OF THE UNITED STATES, UNDER THE AUTHORITY OF THE DEPARTMENT OF JUSTICE, TO ASSIST IN CERTAIN CONTEMPT PROCEEDINGS THAT ARE ABOUT TO BE BROUGHT IN A FEDERAL DISTRICT COURT AGAINST WITNESSES IN A DISPUTE WHICH IS STYLED, ATCHISON, TOPEKA AND SANTA FE RAILROAD (EASTERN, WESTERN, AND COAST LINES) ET AL, VS. BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN, IN WHICH PROCEEDINGS THE GOVERNMENT IS INTERESTED; AND IN THAT CONNECTION YOU ARE SPECIFICALLY DIRECTED TO CONDUCT, IN ANY JUDICIAL DISTRICT WHERE THE JURISDICTION THEREOF LIES, ANY KIND OF LEGAL PROCEEDINGS, CIVIL OR CRIMINAL, INCLUDING GRAND JURY PROCEEDINGS AND PROCEEDINGS BEFORE COMMITTING MAGISTRATES, WHICH DISTRICT ATTORNEYS ARE AUTHORIZED BY LAW TO CONDUCT.

YOU ARE TO SERVE WITHOUT COMPENSATION OTHER THAN THAT PAID YOU BY THE UNITED STATES RAILROAD LABOR BOARD AS THE ATTORNEY REPRESENTING THE BOARD IN A CONTEMPT PROCEEDING BROUGHT BY THE BOARD AGAINST TWO WITNESSES IN DOCKET NO. 4055.

PLEASE EXECUTE AND RETURN THE ENCLOSED OATH OF OFFICE.

SECTION 189, REVISED STATUTES, PROVIDES:

NO HEAD OF A DEPARTMENT SHALL EMPLOY ATTORNEYS OR COUNSEL AT THE EXPENSE OF THE UNITED STATES; BUT WHEN IN NEED OF COUNSEL OR ADVICE, SHALL CALL UPON THE DEPARTMENT OF JUSTICE, THE OFFICERS OF WHICH SHALL ATTEND TO THE SAME.

SECTIONS 365 AND 366, REVISED STATUTES, PROVIDE:

SEC. 365. NO COMPENSATION SHALL HEREAFTER BE ALLOWED TO ANY PERSON BESIDES THE RESPECTIVE DISTRICT ATTORNEYS AND ASSISTANT DISTRICT ATTORNEYS FOR SERVICES AS AN ATTORNEY OR COUNSELOR TO THE UNITED STATES, OR TO ANY BRANCH OR DEPARTMENT OF THE GOVERNMENT THEREOF, EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW, AND THEN ONLY ON THE CERTIFICATE OF THE ATTORNEY- GENERAL THAT SUCH SERVICES WERE ACTUALLY RENDERED, AND THAT THE SAME COULD NOT BE PERFORMED BY THE ATTORNEY GENERAL, OR SOLICITOR-GENERAL, OR THE OFFICERS OF THE DEPARTMENT OF JUSTICE, OR BY THE DISTRICT ATTORNEYS.

SEC. 366. EVERY ATTORNEY OR COUNSELOR WHO IS SPECIALLY RETAINED, UNDER THE AUTHORITY OF THE DEPARTMENT OF JUSTICE, TO ASSIST IN THE TRIAL OF ANY CASE IN WHICH THE GOVERNMENT IS INTERESTED, SHALL RECEIVE A COMMISSION FROM THE HEAD OF SUCH DEPARTMENT, AS A SPECIAL ASSISTANT TO THE ATTORNEY- GENERAL, OR TO SOME ONE OF THE DISTRICT ATTORNEYS, AS THE NATURE OF THE APPOINTMENT MAY REQUIRE; AND SHALL TAKE THE OATH REQUIRED BY LAW TO BE TAKEN BY DISTRICT ATTORNEYS, AND SHALL BE SUBJECT TO ALL THE LIABILITIES IMPOSED UPON THEM BY LAW.

THE FORMAL APPOINTMENTS ISSUED BY THE ATTORNEY GENERAL TO ATTORNEYS KIRKLAND AND GOLDING EVIDENTLY WERE INTENDED MERELY TO GIVE SAID ATTORNEYS A PROPER OFFICIAL STATUS IN THE COURT AS CONTEMPLATED UNDER THE PROVISIONS OF SECTIONS 366, REVISED STATUTES, SUPRA; AND IN VIEW OF THE PROVISION THEREIN RELATIVE TO COMPENSATION, IT IS APPARENT THAT SAID APPOINTMENTS WERE ISSUED UNDER THE ERRONEOUS ASSUMPTION THAT SAID ATTORNEYS WERE AT THAT TIME REGULARLY AUTHORIZED EMPLOYEES OF THE RAILROAD LABOR BOARD. THE ONLY AUTHORITY VESTED IN THE RAILROAD LABOR BOARD RELATIVE TO THE EMPLOYMENT OF PERSONAL SERVICES IS THAT CONFERRED BY SECTION 314 OF THE ACT OF FEBRUARY 28, 1920, 41 STAT. 473, PROVIDING THAT SAID BOARD MAY APPOINT A SECRETARY AND,"SUBJECT TO THE PROVISIONS OF THE CIVIL-SERVICE LAWS, APPOINT AND REMOVE SUCH OFFICERS, EMPLOYEES, AND GENTS" AS ARE NECESSARY FOR THE EFFICIENT EXECUTION OF THE FUNCTIONS VESTED IN THE BOARD AND AS MAY BE PROVIDED FOR BY CONGRESS FROM TIME TO TIME. IT IS CLEAR THAT THE SERVICES HERE IN QUESTION WERE NOT ENGAGED PURSUANT TO AND IN ACCORDANCE WITH THE AUTHORITY THUS VESTED IN THE BOARD.

THE ACT OF JUNE 7, 1924, 43 STAT. 527, PROVIDING FOR THE ACTIVITIES OF THE BOARD FOR THE FISCAL YEAR 1925, MAKES AN APPROPRIATION FOR THE SALARIES OF THE NINE MEMBERS AND THE SECRETARY AND FURTHER PROVIDES:

FOR ALL OTHER AUTHORIZED EXPENDITURES OF THE RAILROAD LABOR BOARD IN PERFORMING THE DUTIES IMPOSED BY LAW, INCLUDING PERSONAL AND OTHER SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, SUPPLIES AND EQUIPMENT, LAW BOOKS AND BOOKS OF REFERENCE, PERIODICALS, TRAVEL EXPENSES, PER DIEM IN LIEU OF SUBSISTENCE, RENT OF QUARTERS IN THE DISTRICT OF COLUMBIA, IF SPACE IS NOT PROVIDED BY THE PUBLIC BUILDINGS COMMISSION, RENT OF QUARTERS OUTSIDE OF THE DISTRICT OF COLUMBIA, WITNESS FEES, AND MILEAGE, $215,200.

THIS APPROPRIATION DOES NOT PROVIDE SPECIFICALLY OR OTHERWISE FOR THE PAYMENT OF LEGAL SERVICES AND AS SECTION 365, REVISED STATUTES, PROHIBITS THE PAYMENT OF COMPENSATION FOR SUCH SERVICES ,EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW," IT IS NOT AVAILABLE THEREFOR. 27 COMP. DEC. 1019. THEIR RESPECTIVE APPOINTMENTS PROVIDED THAT THEY WERE TO "SERVE WITHOUT COMPENSATION OTHER THAN THAT PAID * * * BY THE UNITED STATES RAILROAD LABOR BOARD," IT IS NOT NECESSARY TO CONSIDER WHETHER ANY OTHER APPROPRIATIONS WOULD HAVE BEEN AVAILABLE TO PAY FOR THE SERVICES IN QUESTION IF SAID SERVICES HAD BEEN LEGALLY AND PROPERLY ENGAGED.

IT IS NOTED THAT THE CLAIM IS STATED IN THE NAME OF THE FIRM OF MCCORMICK, KIRKLAND, PATTERSON AND FLEMING, WITHOUT SPECIFYING THE AMOUNTS CLAIMED PERSONALLY BY GOLDING OR KIRKLAND, RESPECTIVELY, WHO, IT WOULD APPEAR, WERE THE ONLY MEMBERS OF THE FIRM RENDERING SERVICE IN THE MATTER. IT IS NOTED, ALSO, THAT THE CLAIM COVERS SERVICES FROM AUGUST 20, 1924, TO MARCH 18, 1925, WHILE THE RESPECTIVE APPOINTMENTS OF KIRKLAND AND GOLDING AS HEREINBEFORE STATED WERE DATED SEPTEMBER 13, 1924, AND DECEMBER 2, 1924, AND SPECIFICALLY WORDED SO AS TO CONFER NO RIGHTS TO COMPENSATION THEREUNDER.