A-15826, OCTOBER 23, 1926, 6 COMP. GEN. 286

A-15826: Oct 23, 1926

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CREDIT WILL BE ALLOWED FOR THE PAYMENTS OF COMPENSATION TO SUCH POSTAL EMPLOYEES UNDER RETROACTIVE PROMOTIONS MADE EFFECTIVE AS OF JANUARY 1. WHEREBY THERE WAS DISALLOWED IN THE ACCOUNTS OF PAYMASTER R. THE DISALLOWANCE WAS MADE PURSUANT TO THE DECISION OF THIS OFFICE DATED AUGUST 7. THE DECISION WAS RENDERED UPON THE SUBMISSION OF THE POSTMASTER GENERAL INCIDENT TO THE REQUEST OF THE DIRECTOR OF POSTS OF THE CANAL ZONE FOR AN INCREASE IN THE MONTHLY RATE OF REIMBURSEMENT FOR HANDLING MAILS DISPATCHED FROM THE UNITED STATES TO FOREIGN COUNTRIES VIA THE ISTHMUS. WHICH INCREASE WAS BASED ON THE INCREASE OF COMPENSATION GRANTED THE POSTAL EMPLOYEES IN THE CONTINENTAL UNITED STATES. THAT THE ACT OF 1912 DOES NOT REQUIRE INCREASE IN COMPENSATION OF PANAMA CANAL EMPLOYEES WHEN AN INCREASE IS GRANTED TO EMPLOYEES HOLDING SIMILAR POSITIONS IN THE CONTINENTAL UNITED STATES.

A-15826, OCTOBER 23, 1926, 6 COMP. GEN. 286

COMPENSATION - RETROACTIVE PROMOTIONS - PANAMA CANAL POSTAL EMPLOYEES PROMOTION OR INCREASED COMPENSATION TO CIVILIAN POSTAL EMPLOYEES OF THE PANAMA CANAL MAY NOT LEGALLY BE MADE RETROACTIVELY, BUT, IN VIEW OF THE PAST PRACTICE OF LONG STANDING NOT PREVIOUSLY OBJECTED TO BY THE ACCOUNTING OFFICERS, CREDIT WILL BE ALLOWED FOR THE PAYMENTS OF COMPENSATION TO SUCH POSTAL EMPLOYEES UNDER RETROACTIVE PROMOTIONS MADE EFFECTIVE AS OF JANUARY 1, 1925, EXTENDING TO SUCH EMPLOYEES INCREASES TO CORRESPOND WITH THOSE ACCORDED POSTAL EMPLOYEES IN THE UNITED STATES BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1052.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 23, 1926:

THE GOVERNOR OF THE PANAMA CANAL HAS REQUESTED REVIEW OF SETTLEMENT M- 19030-PC, DATED APRIL 9, 1926, WHEREBY THERE WAS DISALLOWED IN THE ACCOUNTS OF PAYMASTER R. W. GLAW THE SUM OF $2,386.09, REPRESENTING INCREASE IN COMPENSATION OF POSTAL EMPLOYEES OF THE PANAMA CANAL, RETROACTIVELY EFFECTIVE FOR THE PERIOD JANUARY 1 TO MAY 31, 1925, INCLUSIVE, UNDER ORDERS ISSUED BY THE GOVERNOR OF THE PANAMA CANAL, JUNE 24, 1925.

THE DISALLOWANCE WAS MADE PURSUANT TO THE DECISION OF THIS OFFICE DATED AUGUST 7, 1925, A-9682, HOLDING THAT THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1053, INCREASING THE RATES OF COMPENSATION OF POSTAL EMPLOYEES IN THE CONTINENTAL UNITED STATES, EFFECTIVE FROM JANUARY 1, 1925, DID NOT IPSO FACTO MAKE SUCH INCREASES APPLICABLE TO POSTAL EMPLOYEES OF THE PANAMA CANAL NOR REQUIRE THE ADMINISTRATIVE OFFICERS TO APPLY SUCH INCREASE TO THE POSTAL EMPLOYEES OF THE PANAMA CANAL UNDER THE TERMS OF SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561. THE DECISION WAS RENDERED UPON THE SUBMISSION OF THE POSTMASTER GENERAL INCIDENT TO THE REQUEST OF THE DIRECTOR OF POSTS OF THE CANAL ZONE FOR AN INCREASE IN THE MONTHLY RATE OF REIMBURSEMENT FOR HANDLING MAILS DISPATCHED FROM THE UNITED STATES TO FOREIGN COUNTRIES VIA THE ISTHMUS, WHICH INCREASE WAS BASED ON THE INCREASE OF COMPENSATION GRANTED THE POSTAL EMPLOYEES IN THE CONTINENTAL UNITED STATES.

SECTION 4 OF THE ACT OF AUGUST 24, 1912, SUPRA, PROVIDES IN PART AS FOLLOWS:

ALL OTHER PERSONS NECESSARY FOR THE COMPLETION, CARE, MANAGEMENT MAINTENANCE, SANITATION, GOVERNMENT, OPERATION, AND PROTECTION OF THE PANAMA CANAL AND CANAL ZONE SHALL BE APPOINTED BY THE PRESIDENT, OR BY HIS AUTHORITY, REMOVAL AT HIS PLEASURE, AND THE COMPENSATION OF SUCH PERSONS SHALL BE FIXED BY THE PRESIDENT, OR BY HIS AUTHORITY, UNTIL SUCH TIME AS CONGRESS MAY BY LAW REGULATE THE SAME, BUT SALARIES OR COMPENSATION FIXED HEREUNDER BY THE PRESIDENT SHALL IN NO INSTANCE EXCEED BY MORE THAN TWENTY -FIVE PERCENTUM THE SALARY OR COMPENSATION PAID FOR THE SAME OR SIMILAR SERVICES TO PERSONS EMPLOYED BY THE GOVERNMENT IN CONTINENTAL UNITED STATES * * *.

THE DECISION OF AUGUST 7, 1925, HELD AS FOLLOWS:

INCREASES IN COMPENSATION OF GOVERNMENT EMPLOYEES MAY NOT BE MADE RETROACTIVELY EFFECTIVE UNLESS SO PROVIDED BY STATUTE. THERE APPEARS TO BE NO STATUTE AUTHORIZING RETROACTIVE INCREASES IN COMPENSATION OF POSTAL EMPLOYEES OF THE PANAMA CANAL, AND WHILE THE BASIC LAW OF 1912, SUPRA, WOULD AUTHORIZE THE ADMINISTRATIVE AUTHORITIES TO MAKE INCREASES IN THE COMPENSATION OF THE POSTAL EMPLOYEES OF THE PANAMA CANAL TO CORRESPOND TO THE INCREASE PAID EMPLOYEES IN THE UNITED STATES POSTAL SERVICE, THE ACT OF FEBRUARY 28, 1925, DID NOT IPSO FACTO MAKE SUCH INCREASES NOR REQUIRE THEM TO BE MADE, AND THE PAY ROLLS ON FILE IN THIS OFFICE SHOW NO GENERAL OR INDIVIDUAL INCREASES IN THE COMPENSATION OF SUCH EMPLOYEES UP TO AND INCLUDING APRIL 30, 1925.

NOTHING HAS BEEN SUBMITTED TO REQUIRE OR JUSTIFY ANY MODIFICATION OF SUCH CONCLUSION OF LAW. THAT THE ACT OF 1912 DOES NOT REQUIRE INCREASE IN COMPENSATION OF PANAMA CANAL EMPLOYEES WHEN AN INCREASE IS GRANTED TO EMPLOYEES HOLDING SIMILAR POSITIONS IN THE CONTINENTAL UNITED STATES, IS APPARENTLY UNDERSTOOD BY THE PANAMA CANAL ADMINISTRATIVE OFFICE, FOR THE GOVERNOR HAS REPORTED THAT NO INCREASE WAS GRANTED CERTAIN OTHER CLASSES OF EMPLOYEES WHO HELD POSITIONS SIMILAR TO THOSE RECENTLY INCREASED IN THE CONTINENTAL UNITED STATES, SUCH AS SCHOOL-TEACHERS, POLICEMEN, AND FIREMEN. UNDER THE WELL SETTLED PRINCIPLE THAT AN INCREASE IN COMPENSATION MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF STATUTE, NO OTHER CONCLUSION OF LAW THAN THAT STATED IN THE QUOTED DECISION WOULD HAVE BEEN PROPER. 24 COMP. DEC. 582; 25 ID. 932; 26 ID. 432; 2 COMP. GEN. 45; ID 515; 3 ID. 517; ID. 559; ID. 844; 4 ID. 299; ID. 957; 6 ID. 133; AND CASES THEREIN CITED. AT THE TIME THE DECISION IN QUESTION WAS RENDERED, AUGUST 7, 1925, THIS OFFICE HAD NOT BEEN ADVISED OF THE RETROACTIVE INCREASE IN COMPENSATION ORDERED BY THE GOVERNOR OF THE PANAMA CANAL JUNE 24, 1925, BUT EVEN IF THE OFFICE HAD BEEN SO ADVISED THERE COULD HAVE BEEN NO OTHER CONCLUSION OF LAW.

THE GOVERNOR DOES NOT BASE HIS REQUEST FOR REVIEW UPON ANY ERROR IN THE FORMER DECISION, BUT ON THE PRACTICE OF AT LEAST 10 YEARS' STANDING OF AUTHORIZING INCREASES IN COMPENSATION OF EMPLOYEES UNDER THE PANAMA CANAL EFFECTIVE AS OF THE DATE INCREASES IN COMPENSATION ARE AUTHORIZED BY STATUTE OR OTHERWISE FOR EMPLOYEES HOLDING SIMILAR POSITIONS IN THE CONTINENTAL UNITED STATES. HE CITES THE CASE OF THE 5 AND 10 PERCENT INCREASE GRANTED CIVILIAN EMPLOYEES IN THE CONTINENTAL UNITED STATES EFFECTIVE JULY 1, 1917, WHICH WAS APPLIED TO THE EMPLOYEES UNDER THE PANAMA CANAL FROM THE SAME DATE UNDER A RETROACTIVELY EFFECTIVE ORDER ISSUED SUBSEQUENT TO JULY 31, 1917. THE AUDITOR FOR THE WAR DEPARTMENT AT FIRST SUSPENDED PAYMENTS OF THE INCREASE, BUT LATER REMOVED THE SUSPENSION ON THE BASIS OF A LETTER OF EXPLANATION BY THE GOVERNOR. SIMILAR PAYMENTS HAVE SINCE BEEN PASSED BY THE ACCOUNTING OFFICERS WITHOUT OBJECTION. THE QUESTION DOES NOT APPEAR TO HAVE BEEN SUBMITTED TO OR CONSIDERED BY THE COMPTROLLER OF THE TREASURY.

WHILE ACTION IN THE SETTLEMENT OF AN ACCOUNT OF A DISBURSING OFFICER BY A FORMER AUDITOR OF THE TREASURY OR IN THE AUDIT OF ACCOUNTS BY THIS OFFICE MAY NOT BE CONSIDERED AS A CONTROLLING PRECEDENT, SUCH CONSISTENT ACTION BY THE ACCOUNTING OFFICERS AS APPEARS IN THIS INSTANCE MAY BE CONSIDERED AS JUSTIFYING THE ACTION OF THE PANAMA CANAL HERETOFORE IN INCREASING THE COMPENSATION OF EMPLOYEES EFFECTIVE FROM THE DATE OF INCREASE IN THE CONTINENTAL UNITED STATES. 6 COMP. GEN. 78, 81. IN VIEW THEREOF, AND OF THE FACT THAT THE RETROACTIVE ORDERS IN THIS CASE WERE MADE PRIOR TO DATE OF THE DECISION ON THE BASIS OF WHICH THE DISALLOWANCE WAS MADE, CREDIT MAY NOW BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER IN QUESTION FOR THE SUM OF $2,386.09.

HEREAFTER ALL INCREASES IN COMPENSATION GRANTED EMPLOYEES OF THE PANAMA CANAL UNDER THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, SUPRA, SHOULD BE MADE PROSPECTIVELY EFFECTIVE FROM THE DATE OF APPROVAL BY THE ADMINISTRATIVE OFFICE OR FROM A SUBSEQUENT DATE SPECIFICALLY APPROVED.