A-15613, SEPTEMBER 16, 1926, 6 COMP. GEN. 186

A-15613: Sep 16, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUCH LEAVE IS NOT CUMULATIVE. ADDRESSED BY THE UNITED STATES DISTRICT JUDGE OF THE CANAL ZONE TO THE AUDITOR FOR THE PANAMA CANAL REQUESTING THAT THERE BE SUBMITTED TO THIS OFFICE FOR DECISION THE QUESTION WHETHER THE SAID DISTRICT JUDGE IS ENTITLED TO PAY FROM JULY 29 TO AUGUST 27. UNDER A STATEMENT OF FACTS WHICH MAY BE EPITOMIZED AS FOLLOWS: THE PRESENT DISTRICT JUDGE OF THE CANAL ZONE APPEARS TO HAVE ACTED IN 1924 AS DISTRICT ATTORNEY. UNTIL THEIR SUCCESSORS ARE APPOINTED AND QUALIFIED. THE AUDITOR HAS APPROVED PAYMENT TO THE DISTRICT JUDGE OF HIS SALARY FOR SIX WEEKS' LEAVE OF ABSENCE AND THE QUESTION HERE FOR DECISION AT THE SUGGESTION OF THE DISTRICT JUDGE IS WHETHER HE IS ENTITLED EQUALLY WITH EMPLOYEES OF THE CANAL ZONE AND THE PANAMA CANAL TO CUMULATE HIS LEAVE NOT EXCEEDING 120 DAYS IN ACCORDANCE WITH SECTION 29 OF THE EXECUTIVE ORDER OF JANUARY 15.

A-15613, SEPTEMBER 16, 1926, 6 COMP. GEN. 186

LEAVE OF ABSENCE - ANNUAL - DISTRICT JUDGE OF CANAL ZONE THE ACT OF SEPTEMBER 21, 1922, 42 STAT. 1006, ALLOWS THE DISTRICT JUDGE OF THE CANAL ZONE "SIX WEEKS' LEAVE OF ABSENCE EACH YEAR WITH PAY, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE," AND IN THE ABSENCE OF REGULATIONS BY THE PRESIDENT SPECIFICALLY PROVIDING THEREFOR, SUCH LEAVE IS NOT CUMULATIVE.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, SEPTEMBER 16, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER DATED AUGUST 25, 1926, INCLOSING A MEMORANDUM DATED AUGUST 23, 1926, ADDRESSED BY THE UNITED STATES DISTRICT JUDGE OF THE CANAL ZONE TO THE AUDITOR FOR THE PANAMA CANAL REQUESTING THAT THERE BE SUBMITTED TO THIS OFFICE FOR DECISION THE QUESTION WHETHER THE SAID DISTRICT JUDGE IS ENTITLED TO PAY FROM JULY 29 TO AUGUST 27, 1926, INCLUSIVE, UNDER A STATEMENT OF FACTS WHICH MAY BE EPITOMIZED AS FOLLOWS:

THE PRESENT DISTRICT JUDGE OF THE CANAL ZONE APPEARS TO HAVE ACTED IN 1924 AS DISTRICT ATTORNEY, THE EXACT DATE OF HIS APPOINTMENT AND QUALIFICATIONS AS DISTRICT JUDGE NOT BEING SHOWN. DURING THE YEAR 1924, HE HAD 12 DAYS OF UNUSED LEAVE OF ABSENCE AND DURING 1925 HE HAD 10 DAYS OF UNUSED LEAVE OF ABSENCE. IT APPEARS THAT DURING THE PRESENT CALENDAR YEAR THE DISTRICT JUDGE USED 20 DAYS LEAVE IN EXCESS OF THE SIX WEEKS' LEAVE OF ABSENCE GRANTED ANNUALLY BY PARAGRAPH (G) OF SECTION 8 OF THE PANAMA CANAL ACT, AS AMENDED BY SECTION 2 OF THE ACT OF SEPTEMBER 21, 1922, 42 STAT. 1006, AS FOLLOWS:

THE DISTRICT JUDGE, THE DISTRICT ATTORNEY, AND THE MARSHAL SHALL BE APPOINTED BY THE PRESIDENT, AS HERETOFORE, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR TERMS OF FOUR YEARS EACH, AND UNTIL THEIR SUCCESSORS ARE APPOINTED AND QUALIFIED; THEY SHALL RESIDE WITHIN THE CANAL ZONE DURING THEIR TERM OF OFFICE, AND SHALL BE ALLOWED SIX WEEKS' LEAVE OF ABSENCE EACH YEAR WITH PAY, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE.

THE AUDITOR HAS APPROVED PAYMENT TO THE DISTRICT JUDGE OF HIS SALARY FOR SIX WEEKS' LEAVE OF ABSENCE AND THE QUESTION HERE FOR DECISION AT THE SUGGESTION OF THE DISTRICT JUDGE IS WHETHER HE IS ENTITLED EQUALLY WITH EMPLOYEES OF THE CANAL ZONE AND THE PANAMA CANAL TO CUMULATE HIS LEAVE NOT EXCEEDING 120 DAYS IN ACCORDANCE WITH SECTION 29 OF THE EXECUTIVE ORDER OF JANUARY 15, 1917, AS FOLLOWS:

THIRTY DAYS CUMULATIVE LEAVE WILL BE ALLOWED EACH EMPLOYEE PAID ON A MONTHLY OR ANNUAL BASIS FOR EACH YEAR OF HIS SERVICE * * *. THIS LEAVE WILL BE DUE AFTER COMPLETING 10 MONTHS' SERVICE EACH YEAR, AND MAY BE TAKEN WHEN THE EMPLOYEE'S SERVICE CAN BE SPARED. IT MAY BE TAKEN ANNUALLY OR LEFT TO CUMULATE TO THE CREDIT OF THE EMPLOYEE, PROVIDED, HOWEVER, THAT THE MAXIMUM NUMBER OF DAYS LEAVE WITH PAY OF ALL KINDS WHICH MAY BE GRANTED AT ANY ONE TIME, OR WHICH MAY BE CUMULATED INTO A CASH PAYMENT AT TERMINATION OF SERVICE IS 120.

IT IS UNNECESSARY AT THIS TIME TO DECIDE WHETHER THE DISTRICT JUDGE IS, AS IS CONTENDED, AN EMPLOYEE OF THE CANAL ZONE WITHIN THE MEANING OF THE EXECUTIVE ORDERS FIXING THE LEAVE OF EMPLOYEES OF THE PANAMA CANAL AND THE CANAL ZONE, FOR WHATEVER MAY BE THE CORRECT CONCLUSION WITH RESPECT TO THIS MATTER (SEE MCALLISTER V. UNITED STATES, 141 U.S. 174), THE ACT OF SEPTEMBER 21, 1922, HAS EXCEPTED THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL FROM THE PROVISIONS APPLICABLE TO OTHER EMPLOYEES IN THE MATTER OF LEAVE OF ABSENCE WITH PAY BY THE PROVISION THAT THEY "SHALL BE ALLOWED SIX WEEKS' LEAVE OF ABSENCE EACH YEAR WITH PAY, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE," DIFFERING IN THIS RESPECT FROM THE ACT OF APRIL 30, 1900, 31 STAT. 158, AS AMENDED BY THE ACT OF MARCH 3, 1909, 33 STAT. 1035, AS TO DISTRICT JUDGES OF HAWAII; ACT OF AUGUST 29, 1916, 39 STAT. 555, AS TO THE JUDGES OF THE SUPREME COURT OF THE PHILIPPINE ISLANDS; AND THE ACT OF MARCH 2, 1917, 39 STAT. 965, AS TO THE DISTRICT JUDGE OF PORTO RICO.

THERE APPEAR TO HAVE BEEN NO SPECIFIC REGULATIONS PRESCRIBED BY THE PRESIDENT WITH RESPECT TO THE LEAVE OF THE JUDGE, DISTRICT ATTORNEY, AND MARSHAL OF THE CANAL ZONE. THE REGULATIONS APPLICABLE TO EMPLOYEES, GENERALLY, OF THE CANAL ZONE ARE NOT APPLICABLE TO THE JUDGE, DISTRICT ATTORNEY, AND MARSHAL, WHOSE LEAVE IS FIXED BY LAW, AND WHETHER THEY SHALL HEREAFTER BE ALLOWED TO ACCUMULATE LEAVE AS ARE THE EMPLOYEES OF THE EXECUTIVE DEPARTMENT OF THE CANAL ZONE AND THE PANAMA CANAL OR OTHERWISE WOULD BE FOR THE DETERMINATION, IN THE FIRST INSTANCE, OF THE PRESIDENT BY THE ISSUANCE OF REGULATIONS THEREFOR, AND WOULD INVOLVE A CONSIDERATION OF WHETHER THEIR SERVICES MAY BE SPARED FOR MORE THAN SIX WEEKS DURING ANY ONE YEAR.

THE VOUCHER SUBMITTED REPRESENTS PAYMENT WHILE ON LEAVE ASSUMED TO HAVE BEEN ON A CUMULATIVE BASIS AND ITS PAYMENT, IF OTHERWISE CORRECT, WILL NOT BE QUESTIONED BY THIS OFFICE IN THIS INSTANCE.