A-21637, AUGUST 14, 1928, 8 COMP. GEN. 73

A-21637: Aug 14, 1928

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APPOINTMENTS - EFFECTIVE DATE - NAVAL OFFICER APPOINTED FOR A STATUTORY TERM WHERE AN OFFICER OF THE NAVY IS APPOINTED FOR A STATUTORY TERM. IF NO DATE IS STATED. WERE FIRST APPOINTED CHIEF OF THE BUREAU OF YARDS AND DOCKS EFFECTIVE FROM DECEMBER 20. THE CONCLUSION THEREFROM THAT SINCE THE TERM OF THE OFFICE WAS FOR FOUR YEARS. YOU WERE ADVISED BY THE CHIEF OF THE BUREAU OF NAVIGATION: THE PRESIDENT OF THE UNITED STATES. I HAVE THE PLEASURE TO TRANSMIT HEREWITH YOUR COMMISSION DATED 23 DECEMBER. THIS APPOINTMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JANUARY 5. YOU WERE ADVISED BY THE CHIEF OF THE BUREAU OF NAVIGATION: THE PRESIDENT OF THE UNITED STATES. I HAVE THE PLEASURE TO TRANSMIT HEREWITH YOUR COMMISSION DATED 31 DECEMBER.

A-21637, AUGUST 14, 1928, 8 COMP. GEN. 73

APPOINTMENTS - EFFECTIVE DATE - NAVAL OFFICER APPOINTED FOR A STATUTORY TERM WHERE AN OFFICER OF THE NAVY IS APPOINTED FOR A STATUTORY TERM, THE TERM COMMENCES WITH THE DATE STATED IN THE COMMISSION, AND IF NO DATE IS STATED, THE TERM COMMENCES WITH THE DATE OF THE COMMISSION. THE DATE OF ACCEPTANCE OF THE APPOINTMENT DOES NOT AFFECT THE TERM.

COMPTROLLER GENERAL MCCARL TO REAR ADMIRAL LUTHER E. GREGORY, UNITED STATES NAVY, AUGUST 14, 1928:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR REVIEW OF SETTLEMENT NO 0167787, DATED NOVEMBER 23, 1927, OFFSETTING AGAINST THE AMOUNT DUE YOU AS REFUND OF TAXES ILLEGALLY COLLECTED, THE AMOUNT OF $13.89, BEING DIFFERENCE BETWEEN PAY AND ALLOWANCES PAID YOU AS CHIEF OF THE BUREAU OF YARDS AND DOCKS, AND THE PAY AND ALLOWANCES OF A CAPTAIN IN THE NAVY, FOR DECEMBER 20 AND 21, 1925, SUCH ACTION BEING BASED ON REPORT OF THE SECRETARY OF THE NAVY THAT YOU, THEN A CAPTAIN IN THE CIVIL ENGINEER CORPS OF THE NAVY, WERE FIRST APPOINTED CHIEF OF THE BUREAU OF YARDS AND DOCKS EFFECTIVE FROM DECEMBER 20, 1921, AND REAPPOINTED TO THAT OFFICE EFFECTIVE DECEMBER 22, 1925, AND THE CONCLUSION THEREFROM THAT SINCE THE TERM OF THE OFFICE WAS FOR FOUR YEARS, THE FIRST TERM EXPIRED DECEMBER 19, 1925, AND THAT DURING THE INTERVAL BETWEEN THE EXPIRATION OF YOUR FIRST TERM AND THE BEGINNING OF YOUR SECOND TERM YOU DID NOT LEGALLY HOLD THE OFFICE BUT REVERTED TO YOUR PERMANENT RANK IN THE NAVY AND ENTITLED TO PAY ACCORDINGLY.

IT APPEARS THAT BY LETTER DATED JANUARY 4, 1922, YOU WERE ADVISED BY THE CHIEF OF THE BUREAU OF NAVIGATION:

THE PRESIDENT OF THE UNITED STATES, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, HAVING APPOINTED YOU CHIEF OF THE BUREAU OF YARDS AND DOCKS, WITH THE RANK OF REAR ADMIRAL, FOR A PERIOD OF FOUR YEARS, FROM THE 20TH DAY OF DECEMBER, 1921, I HAVE THE PLEASURE TO TRANSMIT HEREWITH YOUR COMMISSION DATED 23 DECEMBER, 1921.

THIS APPOINTMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JANUARY 5, 1922.

BY LETTER OF DECEMBER 31, 1925, YOU WERE ADVISED BY THE CHIEF OF THE BUREAU OF NAVIGATION:

THE PRESIDENT OF THE UNITED STATES, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, HAVING APPOINTED YOU CHIEF OF THE BUREAU OF YARDS AND DOCKS IN THE DEPARTMENT OF THE NAVY, WITH THE RANK OF REAR ADMIRAL, FROM THE 22D DAY OF DECEMBER, 1925, FOR A TERM OF FOUR YEARS, I HAVE THE PLEASURE TO TRANSMIT HEREWITH YOUR COMMISSION DATED 31 DECEMBER, 1925.

THIS APPOINTMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JANUARY 5, 1926.

IT IS UNDERSTOOD THAT YOUR NOMINATIONS WERE CONFIRMED BY THE SENATE DECEMBER 20, 1921, AND DECEMBER 22, 1925, RESPECTIVELY. IT FURTHER APPEARS THAT YOU HAVE SERVED CONTINUOUSLY AS CHIEF OF THE BUREAU OF YARDS AND DOCKS SINCE JANUARY 5, 1922.

SECTION 421, REVISED STATUTES, UNDER WHICH YOU WERE APPOINTED, PROVIDES, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

THE CHIEFS OF THE SEVERAL BUREAUS IN THE DEPARTMENT OF THE NAVY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, * * * AND SHALL HOLD THEIR OFFICES FOR THE TERM OF FOUR YEARS.

IT IS WELL ESTABLISHED THAT THE TERM OF OFFICE, WHEN NOT SPECIFICALLY FIXED BY STATUTE, BEGINS IN THE CASE OF APPOINTIVE OFFICES ON THE DATE OF THE APPOINTMENT; THAT WHERE THERE IS NO STATUTORY AUTHORITY FOR THE OFFICER TO HOLD OVER, HIS INCUMBENCY CEASES AT THE END OF HIS TERM, AND THAT ORDINARILY FOR THE PERIOD WHILE SO HOLDING OVER HE IS A DE FACTO OFFICER, AND AS SUCH DE FACTO OFFICER, HE HAS NO LEGAL CLAIM FOR THE SALARY OF THE OFFICE, BUT IF IT HAS BEEN PAID IT CAN NOT BE RECOVERED BACK. SEE BOWLER'S FIRST COMP. DEC. 306; 12 COMP. DEC. 754; 44 MS COMP. GEN. 1325, APRIL 30, 1925, A 3169; 75 ID. 103, NOVEMBER 2, 1927, A-20249.

IN THIS CASE THE TERM OF OFFICE WAS LIMITED TO FOUR YEARS, AND IT BEGAN FROM DATE OF APPOINTMENT AND NOT FROM DATE OF ACCEPTANCE. WHETHER THE DATES AS STATED IN THE COMMISSIONS OR THE DATES OF THE COMMISSIONS BE TAKEN AS THE DATES OF APPOINTMENT, IN EITHER CASE THERE HAS BEEN A HOLDING OVER. DURING SUCH PERIOD OF HOLD OVER YOU WERE A DE FACTO OFFICER, AND HAVING BEEN PAID THE SALARY OF THE OFFICE FOR SUCH PERIOD, IT CAN NOT BE RECOVERED BACK. 12 COMP. DEC. 754.