A-19319, AUGUST 6, 1927, 7 COMP. GEN. 96

A-19319: Aug 6, 1927

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PROMOTIONS - EFFECTIVE DATE - FOREIGN SERVICE PROMOTION OF A FOREIGN SERVICE OFFICER BY COMMISSION TO A HIGHER CLASS ENTITLES SUCH OFFICER TO THE INCREASED COMPENSATION THEREOF FROM THE DATE SUCH COMMISSION IS ACCEPTED. WHERE NO LATER EFFECTIVE DATE IS FIXED THEREIN OR IN AUTHORIZED REGULATIONS. AS FOLLOWS: YOUR ATTENTION IS INVITED TO A PROVISION IN THE CONSULAR REGULATIONS RELATING TO THE PAYMENT OF SALARIES OF FOREIGN SERVICE OFFICERS TO THE EFFECT THAT WHENEVER A FOREIGN SERVICE OFFICER IS PROMOTED. A NEW BOND MUST BE FORWARDED ON THE DAY NOTICE OF PROMOTION IS RECEIVED. THE BASIS OF THIS PROVISION OF THE CONSULAR REGULATIONS IS A RULING MADE BY AN ACTING COMPTROLLER OF THE TREASURY ON JANUARY 20.

A-19319, AUGUST 6, 1927, 7 COMP. GEN. 96

PROMOTIONS - EFFECTIVE DATE - FOREIGN SERVICE PROMOTION OF A FOREIGN SERVICE OFFICER BY COMMISSION TO A HIGHER CLASS ENTITLES SUCH OFFICER TO THE INCREASED COMPENSATION THEREOF FROM THE DATE SUCH COMMISSION IS ACCEPTED, EITHER BY FORMAL ACCEPTANCE, ENTRANCE UPON DUTY, OR BY TAKING THE OATH OF OFFICE. IF THE PROMOTION DOES NOT INVOLVE ANY CHANGE OF DUTIES THE OFFICER'S CONTINUANCE UPON SUCH DUTIES MAY BE CONSIDERED AS A CONSTRUCTIVE ACCEPTANCE OF THE COMMISSION, ENTITLING HIM TO THE INCREASED COMPENSATION FROM THE DATE OF THE COMMISSION, WHERE NO LATER EFFECTIVE DATE IS FIXED THEREIN OR IN AUTHORIZED REGULATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, AUGUST 6, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1927, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO A PROVISION IN THE CONSULAR REGULATIONS RELATING TO THE PAYMENT OF SALARIES OF FOREIGN SERVICE OFFICERS TO THE EFFECT THAT WHENEVER A FOREIGN SERVICE OFFICER IS PROMOTED, AN OATH OF OFFICE MUST BE TAKEN AT THE FIRST OPPORTUNITY, AND A NEW BOND MUST BE FORWARDED ON THE DAY NOTICE OF PROMOTION IS RECEIVED, AND THAT IN SUCH CASE, THE INCREASE IN SALARY INCIDENT TO THE PROMOTION BECOMES EFFECTIVE ON THE DATE OF RECEIPT BY THE OFFICER OF NOTICE OF PROMOTION. THE BASIS OF THIS PROVISION OF THE CONSULAR REGULATIONS IS A RULING MADE BY AN ACTING COMPTROLLER OF THE TREASURY ON JANUARY 20, 1920, IN A LETTER TO THIS DEPARTMENT, IN RESPONSE TO THE LATTER'S INQUIRY WHETHER IN NOTIFYING A CONSUL OF HIS PROMOTION, HE MIGHT BE INFORMED THAT THE ATTENDANT INCREASE IN SALARY WOULD BE EFFECTIVE FROM THE DATE OF THE RECEIPT OF THE NOTIFICATION, AND THAT HE SHOULD TAKE HIS OATH OF OFFICE BEFORE AN APPROPRIATE OFFICIAL, EITHER ABROAD OR IN THE UNITED STATES, AT THE FIRST AVAILABLE OPPORTUNITY.

IT WOULD SEEM THAT THIS RULE IS IN ERROR AND THAT THE DATE ON WHICH THE INCREASED SALARY OF THE OFFICER PROMOTED SHOULD BECOME EFFECTIVE IS THE DATE BORNE BY THE COMMISSION APPOINTING HIM TO THE HIGHER CLASS. THIS VIEW IS VERIFIED BY THE OPINION RENDERED BY THE UNITED STATES SUPREME COURT IN THE CASE OF MARBURY V. MADISON (1 CRANCH. 137), WHICH, IT WILL BE RECALLED, INVOLVED THE APPOINTMENT OF A JUSTICE OF THE PEACE IN THE DISTRICT OF COLUMBIA, AND A PERTINENT PORTION OF WHICH IS AS FOLLOWS:

"A COMMISSION BEARS DATE, AND THE SALARY OF THE OFFICER COMMENCES, FROM HIS APPOINTMENT; NOT FROM THE TRANSMISSION OR ACCEPTANCE OF HIS COMMISSION.'

APPLYING THIS PRINCIPLE TO FOREIGN SERVICE OFFICER PROMOTED UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1924 (PUBLIC NO. 135, 68TH CONGRESS), IT WOULD APPEAR THAT THE CONSULAR REGULATIONS SHOULD BE ALTERED TO PERMIT THE CHANGE OF SALARY TO BECOME EFFECTIVE AS OF THE DATE OF THE COMMISSION, PROVIDED, OF COURSE, THE OFFICER IS ACTUALLY IN A DUTY STATUS ON THAT DATE, WITHOUT OF COURSE IN ANY WAY AFFECTING THE PERFORMANCE OF THE CONDITIONS PRECEDENT TO THE PAYMENT OF SALARY SUCH AS THE FILING OF THE REQUIRED BOND AND EXECUTION OF THE OATH OF OFFICE.

I SHOULD APPRECIATE THE BENEFIT OF YOUR CONSIDERATION OF THIS QUESTION.

THE ACT OF MAY 24, 1924, 43 STAT. 140, PROVIDES FOR THE APPOINTMENT OF FOREIGN SERVICE OFFICERS BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ALL APPOINTMENTS TO BE BY COMMISSION TO A PARTICULAR CLASS.

APPOINTMENTS OR COMMISSIONS DO NOT NECESSARILY TAKE EFFECT IMMEDIATELY UPON THEIR ISSUE. THE APPOINTING POWER MAY MAKE THEM EFFECTIVE AT SOME FUTURE DATE OR ON THE HAPPENING OF SOME CONTINGENCY SUCH AS TAKING THE OATH OF OFFICE OR ENTERING UPON DUTY. THERE WAS, THEREFORE, NO ERROR IN THE DECISION TO YOU OF JANUARY 20, 1920, BY THE THEN COMPTROLLER OF THE TREASURY, IN WHICH IT WAS HELD PROPER FOR YOU TO PROVIDE BY REGULATION FOR COMMISSIONS PROMOTING CONSULAR AND DIPLOMATIC OFFICERS TO BECOME EFFECTIVE UPON THE ACTUAL RECEIPT THEREOF BY SUCH OFFICER.

WITH RESPECT TO PROMULGATING AT THIS TIME A REGULATION TO ENTITLE FOREIGN SERVICE OFFICERS TO THE INCREASED COMPENSATION OF THE CLASS TO WHICH PROMOTED FROM DATE OF THE COMMISSION, IT MAY BE STATED THAT IT HAS BEEN THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS FOR YEARS THAT AN OFFICER OR EMPLOYEE IS NOT ENTITLED TO COMPENSATION UNDER AN APPOINTMENT OR COMMISSION UNLESS AND UNTIL HE HAS ACCEPTED THE APPOINTMENT, WHICH ACCEPTANCE MAY BE ACCOMPLISHED EITHER BY A FORMAL ACCEPTANCE, BY ENTERING UPON DUTY, OR BY TAKING THE OATH OF OFFICE. 4 COMP. GEN. 845. IF AN EMPLOYEE OR OFFICER IS ALREADY ENGAGED UPON THE SAME DUTIES THAT HE WILL PERFORM UNDER THE NEW APPOINTMENT OR COMMISSION, THE CONTINUED PERFORMANCE OF SUCH DUTY MAY BE CONSIDERED AS A CONSTRUCTIVE ACCEPTANCE OF THE COMMISSION THUS ENTITLING HIM TO THE COMPENSATION OF THE POSITION TO WHICH APPOINTED FROM THE DATE OF THE COMMISSION, UNLESS OTHERWISE PROVIDED IN THE COMMISSION, ALTHOUGH HE DID NOT ACTUALLY RECEIVE THE COMMISSION OR TAKE THE OATH OF OFFICE UNTIL A LATER DATE. 27 COMP. DEC. 853. IT WOULD BE PERMISSIBLE, THEREFORE, TO PROVIDE BY REGULATION THAT PROMOTIONS OF FOREIGN SERVICE OFFICERS BY COMMISSION TO A HIGHER CLASS, WHICH DO NOT INVOLVE ANY CHANGE IN THE DUTIES OF THE OFFICER IN QUESTION, WILL BE EFFECTIVE FROM THE DATE OF THE COMMISSION WHEN NO LATER EFFECTIVE DATE IS SPECIFIED THEREIN OR IN AUTHORIZED REGULATIONS.

THE DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF MARBURY V. MADISON, 1 CRANCH 137, CITED BY YOU, HAS BEEN GIVEN CAREFUL CONSIDERATION. THE STATEMENT QUOTED THEREFROM, THAT ,"A COMMISSION BEARS DATE, AND THE SALARY OF THE OFFICER COMMENCES, FROM HIS APPOINTMENT; NOT FROM THE TRANSMISSION OR ACCEPTANCE OF HIS COMMISSION," APPEARS RATHER TO BE A STATEMENT OF WHAT THE COURT CONSIDERED THE UNDERSTANDING OR CUSTOM IN THE GOVERNMENT SERVICE RATHER THAN AS A RULING BY THE COURT THAT THE COMPENSATION SHOULD COMMENCE IN ALL CASES FROM THE DATE OF THE COMMISSION. FURTHERMORE, THE RIGHT TO COMPENSATION OF THE OFFICERS INVOLVED IN THAT CASE--- JUSTICES OF THE PEACE--- WAS NOT IN QUESTION AND ANY COMMENT ON THEIR RIGHT TO COMPENSATION COULD ONLY BE CONSIDERED AS DICTA. SEE ROSE'S NOTES ON THIS CASE, VOLUME 2, LAW.ED. OF THE UNITED STATES SUPREME COURT REPORTS.