A-16508, DECEMBER 28, 1926, 6 COMP. GEN. 415

A-16508: Dec 28, 1926

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EMPLOYEES OF ALASKA LEGISLATURE MEMBERS OF THE ALASKA LEGISLATURE ARE ENTITLED TO COMPENSATION AT THE RATE OF $15 PER DAY FOR SUNDAYS AND HOLIDAYS IF ATTENDING SESSIONS. OR IF IT IS SHOWN THEY WERE PRESENT AT THE SESSION IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING THE SUNDAY OR HOLIDAY ON WHICH THERE WAS NO SESSION. MEMBERS ARE NOT ENTITLED TO COMPENSATION FOR DAYS ABSENT FROM SESSIONS OR OTHER OFFICIAL DUTIES ON ACCOUNT OF SICKNESS. THEY ARE ENTITLED TO COMPENSATION FOR DAYS ABSENT FROM SESSIONS ON OFFICIAL BUSINESS OF THE LEGISLATURE. INCLUDING SUNDAYS AND HOLIDAYS ON WHICH THEY ARE SHOWN TO HAVE PERFORMED SERVICE OR TO HAVE BEEN AVAILABLE FOR DUTY. THERE IS NO AUTHORITY OF LAW TO PAY ADDITIONAL COMPENSATION FOR OVERTIME.

A-16508, DECEMBER 28, 1926, 6 COMP. GEN. 415

COMPENSATION - MEMBERS, OFFICERS, AND EMPLOYEES OF ALASKA LEGISLATURE MEMBERS OF THE ALASKA LEGISLATURE ARE ENTITLED TO COMPENSATION AT THE RATE OF $15 PER DAY FOR SUNDAYS AND HOLIDAYS IF ATTENDING SESSIONS, OR IF IT IS SHOWN THEY WERE PRESENT AT THE SESSION IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING THE SUNDAY OR HOLIDAY ON WHICH THERE WAS NO SESSION. MEMBERS ARE NOT ENTITLED TO COMPENSATION FOR DAYS ABSENT FROM SESSIONS OR OTHER OFFICIAL DUTIES ON ACCOUNT OF SICKNESS, BUT THEY ARE ENTITLED TO COMPENSATION FOR DAYS ABSENT FROM SESSIONS ON OFFICIAL BUSINESS OF THE LEGISLATURE. COMPENSATION AT THE RATE OF $8 PER DIEM MAY BE PAID TO SUBORDINATE OFFICERS AND EMPLOYEES THE ALASKA LEGISLATURE AUTHORIZED BY SECTION 1861, REVISED STATUTES, FOR EACH DAY OF THE SESSIONS, INCLUDING SUNDAYS AND HOLIDAYS ON WHICH THEY ARE SHOWN TO HAVE PERFORMED SERVICE OR TO HAVE BEEN AVAILABLE FOR DUTY. THERE IS NO AUTHORITY OF LAW TO PAY ADDITIONAL COMPENSATION FOR OVERTIME. THE ALASKA LEGISLATURE HAS NO AUTHORITY TO APPROPRIATE FUNDS FOR PAYMENT OF COMPENSATION OF ITS MEMBERS IN EXCESS OF THE AMOUNT FIXED BY LAWS OF THE UNITED STATES, OR IN CONFLICT WITH STATUTORY RESTRICTIONS PLACED ON THE PAYMENT THEREOF.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF ALASKA, DECEMBER 28, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 20, 1926, REQUESTING DECISION OF THE FOLLOWING QUESTIONS:

1. WHETHER MEMBERS OF THE ALASKA TERRITORIAL LEGISLATURE ARE ENTITLED TO COMPENSATION AT THE RATE OF $15 PER DAY (A) FOR SUNDAYS AND HOLIDAYS DURING THE PERIOD THE LEGISLATURE IS IN SESSION, ALTHOUGH THE LEGISLATURE DID NOT FORMALLY CONVENE ON SUCH SUNDAYS AND HOLIDAYS; (B) WHEN EXCUSED BECAUSE OF SICKNESS; OR (C) WHEN ABSENT FROM A SESSION ON OFFICIAL BUSINESS OF THE LEGISLATURE.

2. YOU ALSO SUBMIT THE FOLLOWING:

THE STENOGRAPHERS, TYPISTS, AND CLERKS EMPLOYED DURING THE SESSION CLAIM PAY FOR SUNDAYS AND HOLIDAYS DURING THE TIME WHEN THE LEGISLATURE IS IN SESSION, AND WHILE THEY SOMETIMES PERFORM OFFICIAL ACTS ON THESE DAYS, ESPECIALLY TOWARD THE LATTER PART OF THE SESSION, NO DOUBT THERE ARE SOME DAYS WHEN THEY DO NOT APPEAR AT THE LEGISLATIVE HALL OR AT THE OFFICE. PLEASE ADVISE THIS OFFICE WHETHER OR NOT CLAIMS FOR SERVICES ON SUNDAYS AND HOLIDAYS AND FOR OVERTIME SHOULD BE ALLOWED UNLESS THE PAYEE IS ACTUALLY PRESENT IN THE OFFICE OR IN THE LEGISLATIVE ASSEMBLY AND PERFORMS OFFICIAL DUTIES THERE. IN OTHER WORDS, MUST IT BE SHOWN THAT THEY HAVE ACTUALLY PERFORMED SERVICES FOR ALL OF THE TIME CLAIMED IN THEIR VOUCHER?

3. ANOTHER QUESTION IS PRESENTED AS FOLLOWS:

THERE IS ALSO ANOTHER QUESTION WHICH HAS PRESENTED ITSELF ON TWO OR THREE OCCASIONS AND ON WHICH I SHOULD LIKE TO HAVE YOUR OPINION IF IT IS WITHIN THE PROVINCE OF YOUR OFFICE TO ADVISE ON THE QUESTION. IT OCCASIONALLY HAPPENS THAT ONE OR MORE OF THE LEGISLATORS IS UNABLE TO APPEAR AT THE BEGINNING OF THE SESSION. IN ONE INSTANCE I HAVE IN MIND A SENATOR DID NOT APPEAR FOR 30 DAYS AFTER THE BEGINNING OF THE SESSION. OF COURSE HIS SALARY CAN NOT BE PAID OUT OF THE APPROPRIATION MADE BY THE FEDERAL GOVERNMENT, BUT THE TERRITORIAL LEGISLATURE HAS IN SEVERAL INSTANCES PASSED A SPECIAL APPROPRIATION FOR THE REIMBURSEMENT OF THE LEGISLATOR DURING THE TIME HE WAS ABSENT. I SHOULD LIKE TO KNOW WHETHER OR NOT A MEMBER OF THE LEGISLATURE IS JUSTIFIED IN ACCEPTING THIS PAYMENT IN VIEW OF THE FACT THAT HE IS THEORETICALLY IN THE EMPLOY OF THE FEDERAL GOVERNMENT.

THE QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER ABOVE STATED.

1. IN DECISION OF MARCH 23, 1925, A-8564, ADDRESSED TO THE SECRETARY OF THE INTERIOR IT WAS HELD:

SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 513, PROVIDES:

" * * * 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, * * *.'

IT IS A CARDINAL RULE OF STATUTORY CONSTRUCTION THAT SIGNIFICANCE AND EFFECT SHALL, IF POSSIBLE, BE ACCORDED TO EVERY WORD. UNITED STATES V. PRATT, 3 ALASKA REP. 412; BRACE V. SOLNER, TREASURER OF NOME, 1 ALASKA REP. 361; PETRIE V. COMMERCIAL NATIONAL BANK, 142 U.S. 644; IN RE MATTHEWS, 109 FED.REP. 603. THE AUTHORITY FOR THE PAYMENT OF COMPENSATION IN THE ACT OF AUGUST 24, 1912, SUPRA, IS FOR "EACH DAY'S ATTENDANCE" WHILE THE LEGISLATURE IS IN SESSION; IT DOES NOT AUTHORIZED PAY FOR EACH DAY THE LEGISLATURE IS IN SESSION IRRESPECTIVE OF ATTENDANCE. IT IS APPARENT THEREFORE THAT THE COMPENSATION AUTHORIZED BY THE ACT, FIFTEEN DOLLARS PER DAY, IS NOT PAYABLE FOR ANY DAYS ON WHICH THE MEMBER OF THE LEGISLATURE WAS NOT IN ATTENDANCE UPON THE MEETINGS OF THAT BODY. TO HOLD OTHERWISE WOULD NOT GIVE EFFECT TO THE WORDS "FOR EACH DAY'S ATTENDANCE" WHICH WORDS MUST BE PRESUMED TO HAVE BEEN INSERTED FOR THE PURPOSE OF PRECLUDING PAYMENT FOR DAYS ON WHICH A MEMBER IS ABSENT.

SUCH IS THE GENERAL CONSTRUCTION OF THE STATUTE. THE WORD "ATTENDANCE" MAY BE CONSTRUED TO MEAN EITHER ATTENDANCE AT A MEETING OF THE LEGISLATURE, OR ATTENDANCE UPON OTHER OFFICIAL BUSINESS OF THE LEGISLATURE, OR BEING PRESENT, ABLE AND AVAILABLE ON DAYS ON WHICH NO LEGISLATIVE BUSINESS IS TRANSACTED. THUS (A) MAY BE ANSWERED IN THE AFFIRMATIVE IF IT IS SHOWN THE MEMBER WAS PRESENT AT THE MEETING IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING THE SUNDAY OR HOLIDAY ON WHICH THERE WAS NO MEETING.

(B) IS ANSWERED IN THE NEGATIVE.

(C) IS ANSWERED IN THE AFFIRMATIVE.

2. SECTION 7 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 514, AUTHORIZES THE ELECTION AND APPOINTMENT BY EACH HOUSE OF THE ALASKA TERRITORIAL LEGISLATURE OF THE NUMBER OF SUBORDINATE OFFICERS AND EMPLOYEES, AND AT THE RATES OF COMPENSATION, PROVIDED BY SECTION 1861, REVISED STATUTES, WHICH PROVIDES:

THE SUBORDINATE OFFICERS OF EACH BRANCH OF EVERY LEGISLATIVE ASSEMBLY SHALL CONSIST OF ONE CHIEF CLERK, WHO SHALL RECEIVE A COMPENSATION OF EIGHT DOLLARS PER DAY, AND OF ONE ASSISTANT CLERK, ONE ENROLLING CLERK, ONE ENGROSSING CLERK, ONE SERGEANT-AT-ARMS, ONE DOORKEEPER, ONE MESSENGER, AND ONE WATCHMAN, WHO SHALL EACH RECEIVE A COMPENSATION OF FIVE DOLLARS PER DAY DURING THE SESSIONS, AND NO CHARGE FOR A GREATER NUMBER OF OFFICERS AND ATTENDANTS, OR ANY LARGER PER DIEM, SHALL BE ALLOWED OR PAID BY THE UNITED STATES TO ANY TERRITORY.

IT WILL BE NOTED THAT THE PER DIEM COMPENSATION OF THE SUBORDINATES IS PAYABLE "DURING THE SESSIONS.' COMPENSATION MAY BE PAID TO SUCH SUBORDINATES FOR EACH DAY OF THE SESSION, INCLUDING SUNDAYS AND HOLIDAYS, ON WHICH THE EMPLOYEES ARE SHOWN TO HAVE PERFORMED SERVICES OR TO HAVE BEEN AVAILABLE FOR DUTY. ON DAYS NO DUTIES ARE REQUIRED THEY MAY BE CONSIDERED AS CONSTRUCTIVELY ON DUTY IF AVAILABLE THEREFOR. SUBORDINATE WOULD BE ENTITLED TO PER DIEM COMPENSATION FOR DAYS ON WHICH DUTY WAS REQUIRED BUT THE EMPLOYEE FAILED TO PERFORM SERVICE. CERTIFICATE WILL BE REQUIRED THAT SUCH OFFICERS AND EMPLOYEES ACTUALLY PERFORMED SERVICE OR WERE AVAILABLE FOR SERVICE ON ALL OF THE DAYS DURING THE SESSION FOR WHICH COMPENSATION IS CLAIMED IN THEIR VOUCHER. THE PER DIEM RATE FIXED BY SECTION 1861, REVISED STATUTES, IS THE MAXIMUM AUTHORIZED TO BE PAID FROM APPROPRIATED FUNDS IRRESPECTIVE OF THE NUMBER OF HOURS OF WORK PER DAY REQUIRED OF EMPLOYEES. HENCE THERE WOULD BE NO AUTHORITY TO PAY ADDITIONAL COMPENSATION FOR OVERTIME.

3. REFERENCE IS AGAIN MADE TO THAT PORTION OF SECTION 4 OF THE ACT OF AUGUST 24, 1912, WHICH HAS BEEN QUOTED ABOVE, LIMITING THE PER DIEM COMPENSATION OF MEMBERS OF THE LEGISLATURE TO DAYS OF ACTUAL ATTENDANCE. SECTION 9 OF THE SAME ACT PROVIDES:

LEGISLATIVE POWERS--- LIMITATIONS.--- THE LEGISLATIVE POWER OF THE TERRITORY SHALL EXTEND TO ALL RIGHTFUL SUBJECTS OF LEGISLATION NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES, * * *.

SECTION 15 OF THE SAME STATUTE, 37 STAT. 516, PROVIDES IN PART AS FOLLOWS:

PAYMENT OF LEGISLATIVE EXPENSES.--- THAT THERE SHALL BE ANNUALLY APPROPRIATED BY CONGRESS A SUM SUFFICIENT TO PAY THE SALARIES OF MEMBERS AND AUTHORIZED EMPLOYEES OF THE LEGISLATURE OF ALASKA, * * *.

APPROPRIATION ACTS PROVIDE THESE AMOUNTS. FOR THE BIENNIAL SESSION TO BEGIN THE FIRST MONDAY IN MARCH, 1927, SEE ACT OF MAY 10, 1926, 44 STAT. 493. LAWS OF THE UNITED STATES HAVING PROVIDED THE BASIS OF PAYMENT OF THE COMPENSATION OF THE LEGISLATURES, THE LIMITATIONS THEREON, AND THE FUNDS WITH WHICH TO PAY SAME, APPROPRIATION BY THE ALASKA LEGISLATURE FOR PAYMENT OF COMPENSATION TO MEMBERS IN ADDITION TO THAT AUTHORIZED BY THE LAWS OF THE UNITED STATES WOULD APPEAR TO BE ,INCONSISTENT WITH * * * LAWS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 9 OF THE ACT AND THEREFORE UNAUTHORIZED. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO SECTIONS 14 AND 15 OF THE STATUTE.