A-12823, APRIL 8, 1926, 5 COMP. GEN. 806

A-12823: Apr 8, 1926

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500 PER ANNUM FROM HOLDING ANY OTHER POSITION TO WHICH COMPENSATION IS ATTACHED. AN EMPLOYEE OF THE ALASKA RAILROAD RECEIVING MORE THAN THAT MAXIMUM MAY NOT RETAIN COMPENSATION RECEIVED FROM THE RAILROAD DURING THE TIME HE WAS ALSO RECEIVING COMPENSATION AS A MEMBER OF THE ALASKA LEGISLATURE. MEMBERS OF THE TERRITORIAL LEGISLATURE OF ALASKA ARE ENTITLED TO MILEAGE FROM THEIR HOMES TO JUNEAU AND RETURN. WHETHER THE TRAVEL IS ACTUALLY PERFORMED OR NOT. 1926: THERE IS FOR CONSIDERATION BY THIS OFFICE THE LEGALITY OF PAYMENTS MADE TO HARRY G. AS AN EMPLOYEE OF THE ALASKA RAILROAD AND AS SECRETARY TO THE GOVERNOR OF ALASKA AND SPECIAL DISBURSING OFFICER FOR ALASKA DURING PERIODS THAT HE WAS HOLDING OFFICE AS A MEMBER OF THE TERRITORIAL LEGISLATURE OF ALASKA.

A-12823, APRIL 8, 1926, 5 COMP. GEN. 806

COMPENSATION, DOUBLE - ALASKA RAILROAD EMPLOYEE ALSO A MEMBER OF THE ALASKA LEGISLATURE - MILEAGE AS THE ACT OF AUGUST 24, 1912, 37 STAT. 513, PROHIBITS ANY OFFICER OR EMPLOYEE OF THE UNITED STATES FROM BEING A MEMBER OF THE ALASKA LEGISLATURE, AND THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITS ANY EMPLOYEE OF THE UNITED STATES WHOSE SALARY AMOUNTS TO $2,500 PER ANNUM FROM HOLDING ANY OTHER POSITION TO WHICH COMPENSATION IS ATTACHED, AN EMPLOYEE OF THE ALASKA RAILROAD RECEIVING COMPENSATION OF $2,500 OR MORE PER ANNUM VACATES HIS POSITION WITH THE RAILROAD BY HIS ELECTION TO AND TAKING HIS SEAT IN THE ALASKA LEGISLATURE. IN VIEW OF THE PROVISION OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROHIBITING THE USE OF ANY APPROPRIATION TO PAY MORE THAN ONE SALARY TO ANY PERSON IF THE COMBINED SALARIES EXCEED $2,000 PER ANNUM, AN EMPLOYEE OF THE ALASKA RAILROAD RECEIVING MORE THAN THAT MAXIMUM MAY NOT RETAIN COMPENSATION RECEIVED FROM THE RAILROAD DURING THE TIME HE WAS ALSO RECEIVING COMPENSATION AS A MEMBER OF THE ALASKA LEGISLATURE. MEMBERS OF THE TERRITORIAL LEGISLATURE OF ALASKA ARE ENTITLED TO MILEAGE FROM THEIR HOMES TO JUNEAU AND RETURN, WHETHER THE TRAVEL IS ACTUALLY PERFORMED OR NOT, IF THEY ACTUALLY ATTEND AND RECEIVE PAY AS MEMBERS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 8, 1926:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE LEGALITY OF PAYMENTS MADE TO HARRY G. WATSON, AS AN EMPLOYEE OF THE ALASKA RAILROAD AND AS SECRETARY TO THE GOVERNOR OF ALASKA AND SPECIAL DISBURSING OFFICER FOR ALASKA DURING PERIODS THAT HE WAS HOLDING OFFICE AS A MEMBER OF THE TERRITORIAL LEGISLATURE OF ALASKA.

IT APPEARS THAT IN THE FALL OF 1924, WHILE AN EMPLOYEE OF THE ALASKA RAILROAD, MR. WATSON WAS ELECTED A MEMBER OF THE ALASKA LEGISLATURE. AFTER HIS ELECTION HE WAS SENT TO SEATTLE, WASH., AS A TRAFFIC REPRESENTATIVE OF THE ALASKA RAILROAD FOR CONSULTATION ON MATTERS PERTAINING TO THE TOURIST BUSINESS OF THE RAILROAD. HE RETURNED DIRECTLY TO JUNEAU MARCH 3, 1925, FOR ATTENDANCE AT THE LEGISLATIVE SESSION, WHICH OPENED MARCH 2, 1925. HIS EXPENSES OF TRAVEL TO SEATTLE AND RETURN TO SEATTLE AND RETURN TO JUNEAU WERE PAID BY THE ALASKA RAILROAD. REMAINED IN JUNEAU UNTIL MAY 5, WHEN HE RETURNED TO SEWARD TO TAKE UP HIS DUTIES WITH THE RAILROAD. HE WAS PAID THE USUAL MILEAGE OF A MEMBER OF THE LEGISLATURE ON THE BASIS OF THE DISTANCE FROM HIS HOME, FAIRBANKS, TO JUNEAU AND RETURN AT 15 CENTS PER MILE, AMOUNTING TO $390.43.

HE WAS GIVEN LEAVE OF ABSENCE FROM THE RAILROAD DURING THE PERIOD OF THE LEGISLATIVE SESSION, THE FIRST 23 DAYS OF WHICH WERE WITH PAY AS ANNUAL LEAVE AND THE BALANCE WITHOUT PAY. HIS SALARY AS AN EMPLOYEE OF THE ALASKA RAILROAD WAS AT THE RATE OF $250 PER MONTH, OR $191.67 FOR THE 23 DAYS' LEAVE IN MARCH. HE WAS ALSO PAID AS A MEMBER OF THE LEGISLATURE FROM MARCH 3 TO APRIL 30, 59 DAYS, AT THE RATE OF $15 PER DAY, FROM THE APPROPRIATION "LEGISLATIVE EXPENSES, TERRITORY OF ALASKA, 1925," 43 STAT. 427. AT THE END OF THE SESSION HE RETURNED TO DUTY WITH THE RAILROAD, AND FROM MAY 5, 1925, WAS PAID HIS SALARY AS AN EMPLOYEE OF THE RAILROAD. RECORD IS FOUND OF PAYMENT AS A RAILROAD EMPLOYEE AFTER JUNE 30, 1925, BUT ON JULY 16, 1925, HE WAS APPOINTED SECRETARY TO THE GOVERNOR OF ALASKA AND MADE SPECIAL DISBURSING AGENT OF THE TERRITORY AND THEREAFTER HIS SALARY AS SUCH SECRETARY AND DISBURSING AGENT WAS PAID FROM THE APPROPRIATION ,CONTINGENT EXPENSES, TERRITORY OF ALASKA, 1926.'

THE ACT OF AUGUST 24, 1912, 37 STAT. 513, PRESCRIBING THE FORM OF TERRITORIAL GOVERNMENT FOR ALASKA, PROVIDED:

THE LEGISLATURE.--- THAT THE LEGISLATIVE POWER AND AUTHORITY OF SAID TERRITORY SHALL BE VESTED IN A LEGISLATURE, WHICH SHALL CONSIST OF A SENATE AND A HOUSE OF REPRESENTATIVES. * * * THE TERM OF OFFICE OF EACH MEMBER OF THE SENATE SHALL BE FOUR YEARS. * * * THE TERM OF OFFICE OF EACH REPRESENTATIVE SHALL BE FOR TWO YEARS * * *. THAT EACH MEMBER OF THE LEGISLATURE SHALL BE PAID BY THE UNITED STATES THE SUM OF FIFTEEN DOLLARS PER DAY FOR EACH DAY'S ATTENDANCE WHILE THE LEGISLATURE IS IN SESSION, AND MILEAGE, IN ADDITION, AT THE RATE OF FIFTEEN CENTS PER MILE FROM HIS HOME TO THE CAPITAL AND RETURN BY THE NEAREST TRAVELED ROUTE.

SEC. 6. CONVENING AND SESSIONS OF LEGISLATURE.--- THAT THE LEGISLATURE OF ALASKA SHALL CONVENE AT THE CAPITOL AT THE CITY OF JUNEAU, ALASKA, ON THE FIRST MONDAY IN MARCH IN THE YEAR NINETEEN HUNDRED AND THIRTEEN, AND ON THE FIRST MONDAY IN MARCH EVERY TWO YEARS THEREAFTER; BUT THE SAID LEGISLATURE SHALL NOT CONTINUE IN SESSION LONGER THAN SIXTY DAYS IN ANY TWO YEARS UNLESS AGAIN CONVENED IN EXTRAORDINARY SESSION BY A PROCLAMATION OF THE GOVERNOR * * * AND IN SUCH CASE SHALL NOT CONTINUE IN SESSION LONGER THAN FIFTEEN DAYS. * * *

SEC. 11. LEGISLATOR SHALL NOT HOLD OTHER OFFICE.--- THAT NO MEMBER OF THE LEGISLATURE SHALL HOLD OR BE APPOINTED TO ANY OFFICE WHICH HAS BEEN CREATED, OR THE SALARY OR EMOLUMENTS OF WHICH HAVE BEEN INCREASED, WHILE HE WAS A MEMBER, DURING THE TERM FOR WHICH HE WAS ELECTED AND FOR ONE YEAR AFTER THE EXPIRATION OF SUCH TERM; AND NO PERSON HOLDING A COMMISSION OR APPOINTMENT UNDER THE UNITED STATES SHALL BE A MEMBER OF THE LEGISLATURE OR SHALL HOLD ANY OFFICE UNDER THE GOVERNMENT OF SAID TERRITORY.

IT IS APPARENT THAT WATSON'S SERVICE UNDER THE ALASKA RAILROAD WAS AS AN EMPLOYEE OF THE UNITED STATES, WHICH EMPLOYMENT IS INCONSISTENT WITH HIS SERVICE AS A MEMBER OF THE LEGISLATURE. IT HAS BEEN HELD THAT AN OFFICER WHO ACCEPTS ANOTHER APPOINTMENT OR OFFICE INCOMPATIBLE WITH THE FIRST WILL BE REGARDED AS HAVING RESIGNED OR VACATED THE FIRST OFFICE. 6 COMP. DEC. 454; 3 COMP. GEN. 1012, AND DECISION OF OCTOBER 22, 1921, APPEAL 37602. THEREFORE WATSON MUST BE REGARDED AS HAVING VACATED HIS POSITION WITH THE ALASKA RAILROAD AS OF MARCH 2, 1925, AS HE COULD NOT LEGALLY HAVE, HOLD, OR EXERCISE THE DUTIES OF A POSITION WITH THE ALASKA RAILROAD WHILE SERVING AS A MEMBER OF THE TERRITORIAL LEGISLATURE.

THERE ARE ALSO FOR CONSIDERATION, IN ADDITION TO THE STATUTE ABOVE CITED, THE RESPECTIVE STATUTES PROHIBITING ADDITIONAL COMPENSATION TO OFFICERS AND EMPLOYEES OF THE UNITED STATES. THE ACT OF JULY 31, 1894, 28 STAT. 205, PROVIDES:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES---

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM. * * *.

AS THE SALARY RECEIVED BY THIS EMPLOYEE FROM THE ALASKA RAILROAD EXCEEDED THE $2,500 PER ANNUM RATE, THE ACT OF 1894, SUPRA, WOULD PRECLUDE HIM FROM HOLDING ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED WHILE HOLDING SAID POSITION WITH THE ALASKA RAILROAD.

FURTHERMORE, UNDER THE PROVISIONS OF THE ACT OF 1916, SUPRA, HE WOULD NOT BE ENTITLED TO RECEIVE OR RETAIN ANY COMPENSATION AS AN EMPLOYEE OF THE ALASKA RAILROAD OR AS SECRETARY TO THE GOVERNOR AND SPECIAL DISBURSING AGENT FOR ANY PART OF THE PERIOD FOR WHICH HE RECEIVED, OR IS ENTITLED TO RECEIVE, COMPENSATION AS A MEMBER OF THE LEGISLATURE. WHILE REPRESENTATIVES TO THE ALASKA LEGISLATURE ARE ELECTED FOR A TERM OF TWO YEARS, THEIR ACTUAL SERVICE IS LIMITED BY STATUTE TO NOT EXCEEDING 75 DAYS DURING THE ENTIRE TERM OF TWO YEARS, AND CONGRESS APPROPRIATES FOR THEIR SALARIES ONLY BIENNIALLY. THE 60 DAY SESSION OF THE LEGISLATURE IN MARCH AND APRIL, 1925, COMPLETED THE SERVICE REQUIRED OF WATSON DURING THE ENTIRE TERM OF OFFICE UNLESS A SPECIAL SESSION BE CALLED. THEREFORE, THE ACTS OF JULY 31, 1894, AND MAY 10, 1916, SUPRA, DO NOT REQUIRE THE RECOVERY FROM MR. WATSON OF THE COMPENSATION PAID TO HIM AS AN EMPLOYEE OF THE ALASKA RAILROAD AND AS SECRETARY AND SPECIAL DISBURSING AGENT, RESPECTIVELY, FOR ANY PERIOD DURING WHICH THE LEGISLATURE WAS NOT IN SESSION, BUT HE COULD NOT BE PERMITTED TO RETAIN THE PAY RECEIVED FROM THE ALASKA RAILROAD FOR THE 23 DAYS IN MARCH. 4 COMP. GEN. 521.

WHETHER OR NOT THE ACCEPTANCE BY WATSON OF EMPLOYMENT WITH THE ALASKA RAILROAD OR AS SECRETARY TO THE GOVERNOR AND SPECIAL DISBURSING AGENT OF THE TERRITORY AFTER THE CLOSE OF THE SESSION OF THE LEGISLATURE WOULD DISQUALIFY HIM TO SIT IN THE LEGISLATURE SHOULD ANY EXTRAORDINARY SESSION BE CALLED BY THE GOVERNOR DURING THE PERIOD FOR WHICH HE WAS ELECTED IS NOT FOR CONSIDERATION BY THIS OFFICE AT THIS TIME.

IN ADDITION TO COMPENSATION, WATSON, AS STATED ABOVE, WAS PAID MILEAGE AS A MEMBER OF THE LEGISLATURE FROM HIS HOME, FAIRBANKS, TO JUNEAU AND RETURN AT 15 CENTS PER MILE, AMOUNTING TO $390.43. IT APPEARS THAT NO ACTUAL TRAVEL BETWEEN FAIRBANKS AND JUNEAU WAS INVOLVED, WATSON TRAVELING FROM SEATTLE, WASH., TO JUNEAU TO ATTEND THE SESSION AND UPON ITS CLOSE HE TRAVELED TO SEWARD, ALASKA, HIS EXPENSES FROM SEATTLE TO JUNEAU BEING PAID BY THE ALASKA RAILROAD, WHILE HIS EXPENSES FROM JUNEAU TO SEWARD WERE APPARENTLY PAID OUT OF HIS OWN POCKET. THE ACT OF AUGUST 24, 1912, 37 STAT. 513, PROVIDES AS FOLLOWS:

* * * THAT EACH MEMBER OF THE LEGISLATURE SHALL BE PAID BY THE UNITED STATES THE SUM OF FIFTEEN DOLLARS PER DAY FOR EACH DAY'S ATTENDANCE WHILE THE LEGISLATURE IS IN SESSION, AND MILEAGE, IN ADDITION, AT THE RATE OF FIFTEEN CENTS PER MILE FOR EACH MILE FROM HIS HOME TO THE CAPITAL AND RETURN BY THE NEAREST TRAVELED ROUTE.

THE PAYMENT OF MILEAGE IS NOT MADE CONTINGENT UPON TRAVEL BEING ACTUALLY PERFORMED BUT ONLY UPON THE RECEIPT OF COMPENSATION FOR ATTENDANCE, AND IF THE ACTUAL HOME OF THE MEMBER REMAINED AT FAIRBANKS THE MILEAGE WAS PAYABLE IRRESPECTIVE OF THE TRAVEL PERFORMED. 25 COMP. DEC. 866. APPEARS THAT THE JOURNEY FROM SEATTLE, WASH., TO SEWARD, ALASKA, ALTHOUGH INTERRUPTED BY THE SESSION OF THE LEGISLATURE AT JUNEAU, WAS ON OFFICIAL BUSINESS OF THE ALASKA RAILROAD AND THAT THE EXPENSE TO THE RAILROAD WAS NOT INCREASED BY THE STOP-OVER AT JUNEAU EN ROUTE. UNDER THE CIRCUMSTANCES THE PAYMENT OF MILEAGE AND TRAVELING EXPENSES INVOLVED WILL NOT BE DISTURBED.

THE NECESSARY ACTION WILL BE TAKEN TO RECOVER THE AMOUNT OF $191.67ERRONEOUSLY PAID BY R. D. CHASE, SPECIAL DISBURSING AGENT, ALASKA RAILROAD, TO WATSON ON PAY-ROLL VOUCHER 10300 FOR 23 DAYS' LEAVE IN MARCH, 1925.