A-13894, APRIL 23, 1926, 5 COMP. GEN. 846

A-13894: Apr 23, 1926

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AUTHORIZING THE ALLOWANCE OF CREDIT IN THE ACCOUNTS OF POSTMASTERS UNDER CERTAIN CONDITIONS ARE NOT APPLICABLE IN A CASE WHERE A POSTMASTER AT A POST OFFICE OF THE SECOND CLASS HAD PAID HIMSELF FROM FUNDS OF HIS OFFICE FOR SERVICES HE PERFORMED UNDER A CONTRACT FOR MAIL PASSENGER SERVICE IN VIOLATION OF THE PROVISIONS OF SECTION 3850. WAS ADVANCED FROM THE THIRD TO THE SECOND CLASS. CREDIT FOR SAID SUM WAS DISALLOWED IN THE SETTLEMENT OF HIS ACCOUNTS FOR THE QUARTER ENDED DECEMBER 31. THESE RESTRICTIONS WERE REMOVED BY THE ACT OF JUNE 3. IT IS APPARENT THAT THIS PROVISION OF LAW. BEING A POST OFFICE OF THE SECOND CLASS AT THE TIME THE PROPOSAL FOR MAIL MESSENGER SERVICE WAS SUBMITTED AND AT THE TIME THE SERVICES WERE PERFORMED.

A-13894, APRIL 23, 1926, 5 COMP. GEN. 846

POSTMASTERS - ALLOWANCE OF CREDIT UNDER SECTION 409, REVISED STATUTES, AS AMENDED THE PROVISIONS OF SECTION 409, REVISED STATUTES, AS AMENDED, AUTHORIZING THE ALLOWANCE OF CREDIT IN THE ACCOUNTS OF POSTMASTERS UNDER CERTAIN CONDITIONS ARE NOT APPLICABLE IN A CASE WHERE A POSTMASTER AT A POST OFFICE OF THE SECOND CLASS HAD PAID HIMSELF FROM FUNDS OF HIS OFFICE FOR SERVICES HE PERFORMED UNDER A CONTRACT FOR MAIL PASSENGER SERVICE IN VIOLATION OF THE PROVISIONS OF SECTION 3850, REVISED STATUTES, AND SECTION 226 OF THE CRIMINAL CODE.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 23, 1926:

THE POSTMASTER GENERAL, BY LETTER OF NOVEMBER 7, 1925, SUBMITTED TO THIS OFFICE FOR CONSIDERATION UNDER SECTION 409, REVISED STATUTES, AS AMENDED, THE CLAIM OF EUGENE A. HYDE, POSTMASTER AT SALTVILLE, VA., IN THE AMOUNT OF $50 FOR THE PERFORMANCE OF MAIL-MESSENGER SERVICE FROM OCTOBER 16 TO DECEMBER 15, 1924, ON ROUTE NO. 214357.

THE RECORDS SHOW THAT ON JULY 1, 1924, THE POST OFFICE AT SALTVILLE, VA., WAS ADVANCED FROM THE THIRD TO THE SECOND CLASS; THAT ON SEPTEMBER 27, 1924, EUGENE A. HYDE, POSTMASTER, SUBMITTED A PROPOSAL FOR MAIL-MESSENGER SERVICE AT $300 PER ANNUM; AND THAT THE POST OFFICE DEPARTMENT ACCEPTED THE PROPOSAL OCTOBER 1, 1924. CLAIMANT PERFORMED MAIL-MESSENGER SERVICE FROM OCTOBER 16 TO DECEMBER 15, 1924, AND, IN SUBMITTING HIS ACCOUNTS AS POSTMASTER, RETAINED $50 IN PAYMENT THEREOF OUT OF THE RECEIPTS OF HIS OFFICE. CREDIT FOR SAID SUM WAS DISALLOWED IN THE SETTLEMENT OF HIS ACCOUNTS FOR THE QUARTER ENDED DECEMBER 31, 1924.

SECTION 3850, REVISED STATUTES, AND SECTION 226 OF THE CRIMINAL CODE, 35 STAT. 1134, PROVIDE, RESPECTIVELY, AS FOLLOWS:

SEC. 3850. NO POSTMASTER, ASSISTANT POSTMASTER, OR CLERK EMPLOYED IN ANY POST-OFFICE SHALL BE A CONTRACTOR OR CONCERNED IN ANY CONTRACT FOR CARRYING THE MAIL.

SEC. 226. WHOEVER, BEING A PERSON EMPLOYED IN THE POSTAL SERVICE, SHALL BECOME INTERESTED IN ANY CONTRACT FOR CARRYING THE MAIL, OR ACT AS AGENT, WITH OR WITHOUT COMPENSATION, FOR ANY CONTRACTOR OR PERSON OFFERING TO BECOME A CONTRACTOR IN ANY BUSINESS BEFORE THE DEPARTMENT, SHALL BE IMMEDIATELY DISMISSED FROM OFFICE, AND SHALL BE FINED NOT MORE THAN FIVE THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.

WITH RESPECT TO POST OFFICES OF THE THIRD AND FOURTH CLASSES, THESE RESTRICTIONS WERE REMOVED BY THE ACT OF JUNE 3, 1924, 43 STAT. 356, PROVIDING AS FOLLOWS:

THAT HEREAFTER POSTMASTERS MAY BE DESIGNATED BY THE POSTMASTER GENERAL AS DISBURSING OFFICERS FOR THE PAYMENT OF MAIL MESSENGERS AND OTHERS ENGAGED UNDER THEIR SUPERVISION IN TRANSPORTING THE MAILS: PROVIDED, THAT IN THE DISCRETION OF THE POSTMASTER GENERAL, POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS AT POST OFFICES OF THE THIRD CLASS, AND POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS AT POST OFFICES OF THE FOURTH CLASS MAY ENTER INTO CONTRACTS FOR THE PERFORMANCE OF MAIL MESSENGER SERVICE, AND ALLOWANCE MAY BE MADE THEREFOR FROM THE APPROPRIATIONS FOR MAIL MESSENGER SERVICE: PROVIDED FURTHER, THAT THE TOTAL AMOUNT PAYABLE UNDER SUCH CONTRACT TO ANY POSTMASTER, ASSISTANT POSTMASTER, OR CLERK SHALL NOT EXCEED $300 IN ANY ONE YEAR: PROVIDED FURTHER, THAT HEREAFTER SPECIAL DELIVERY MESSENGERS AT POST OFFICES OF ALL CLASSES MAY ENTER INTO CONTRACTS FOR MAIL MESSENGER SERVICE.

IT IS APPARENT THAT THIS PROVISION OF LAW, BEING LIMITED TO POST OFFICES OF THE THIRD AND FOURTH CLASSES, LEAVES THE PROHIBITION OF SECTION 3850, REVISED STATUTES, AND SECTION 226 OF THE CRIMINAL CODE IN FULL FORCE AND EFFECT WITH RESPECT TO POST OFFICES OF OTHER CLASSES; AND, THE POST OFFICE AT SALTVILLE, VA., BEING A POST OFFICE OF THE SECOND CLASS AT THE TIME THE PROPOSAL FOR MAIL MESSENGER SERVICE WAS SUBMITTED AND AT THE TIME THE SERVICES WERE PERFORMED, THE CONTRACT ENTERED INTO BY THE POSTMASTER AT THAT PLACE WAS IN DIRECT CONTRAVENTION OF THE PLAIN PROVISIONS OF THE STATUTE AND, THEREFORE, ILLEGAL, AND NO COMPENSATION COULD HAVE ACCRUED IN HIS FAVOR FOR ANY SERVICES PERFORMED THEREUNDER.

SECTION 409, REVISED STATUTES, UNDER WHICH IT IS PROPOSED TO ALLOW CREDIT TO THE POSTMASTER, PROVIDED:

IN ALL CASES OF FINE, PENALTY, FORFEITURE, OR DISABILITY, OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE, UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, THE POSTMASTER-GENERAL MAY PRESCRIBE SUCH GENERAL RULES AND MODES OF PROCEEDING AS SHALL APPEAR TO BE EXPEDIENT, FOR THE GOVERNMENT OF THE SIXTH AUDITOR, IN ASCERTAINING THE FACT IN EACH CASE IN WHICH THE AUDITOR SHALL CERTIFY TO HIM THAT THE INTERESTS OF THE DEPARTMENT PROBABLY REQUIRE THE EXERCISE OF HIS POWERS OVER FINES, PENALTIES, FORFEITURES, AND LIABILITIES; AND UPON THE FACT BEING ASCERTAINED, THE AUDITOR MAY, WITH THE WRITTEN CONSENT OF THE POSTMASTER- GENERAL, MITIGATE OR REMIT SUCH FINE, PENALTY OR FORFEITURE, REMOVE SUCH DISABILITY, OR COMPROMISE, RELEASE, OR DISCHARGE SUCH CLAIM FOR SUCH SUM OF MONEY AND DAMAGES, AND ON SUCH TERMS AS THE AUDITOR SHALL DEEM JUST AND EXPEDIENT.

BY THE ACT OF MARCH 4, 1925, 43 STAT. 1266, THAT SECTION WAS AMENDED TO--

* * * EXTEND IN ALL CASES NOW PENDING OR WHICH MAY HEREAFTER ARISE TO BALANCES DUE TO THE UNITED STATES THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, EXCEPTING THE CLASS OF CASES COGNIZABLE UNDER THE ACT APPROVED JANUARY TWENTY FIRST, NINETEEN HUNDRED AND FOURTEEN, ENTITLED "AN ACT TO AMEND THE ACT APPROVED MAY NINTH, EIGHTEEN HUNDRED AND EIGHTY-EIGHT, AS AMENDED BY THE ACT OF JUNE ELEVENTH, EIGHTEEN HUNDRED AND NINETY-SIX, RELATING TO CLAIMS OF POSTMASTERS FOR LOSS BY BURGLARY, FIRE, OR OTHER UNAVOIDABLE CASUALTY.'

THE AMOUNT INVOLVED IN THE PRESENT CASE DOES NOT REPRESENT A FINE, PENALTY, FORFEITURE, OR DISABILITY OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE WITHIN THE MEANING OF SECTION 409, REVISED STATUTES, AS ORIGINALLY ENACTED; NEITHER DOES IT REPRESENT A BALANCE DUE THE UNITED STATES THROUGH ACCOUNTABILITY AS CONTEMPLATED BY THE AMENDMENT OF THAT SECTION CONTAINED IN THE ACT OF MARCH 4, 1925, SUPRA. IN THE INSTANT CASE THERE WAS A DIRECT VIOLATION OF LAW BY THE POSTMASTER IN SUBMITTING THE PROPOSAL FOR MAIL-MESSENGER SERVICE AND IN PERFORMING SERVICES UNDER AN ILLEGAL CONTRACT OBTAINED IN DIRECT VIOLATION OF THE PROVISIONS OF LAW QUOTED ABOVE, AND WHAT IS NOW PROPOSED IS THAT HE BE PERMITTED TO PROFIT BY THE ILLEGAL CONTRACT TO THE EXTENT OF RECEIVING COMPENSATION FOR SERVICE RENDERED THEREUNDER. THE PROVISIONS OF SECTION 409, REVISED STATUTES, AS AMENDED, CAN NOT BE CONSIDERED AS EXTENDING TO SUCH CASES.

ACCORDINGLY, IT MUST BE HELD THAT SECTION 409, REVISED STATUTES, AS AMENDED, IS NOT APPLICABLE TO THE PRESENT MATTER, AND THAT THE POSTMASTER IS NOT ENTITLED TO CREDIT IN HIS ACCOUNTS FOR THE AMOUNT CLAIMED. PROPER STEPS SHOULD BE TAKEN BY HIM TO ADJUST HIS ACCOUNTS IN THIS RESPECT AS SOON AS PRACTICABLE.