A-21692, APRIL 18, 1928, 7 COMP. GEN. 672

A-21692: Apr 18, 1928

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CLERKS OF COURTS - ALLOWANCES FOR CLERICAL ASSISTANCE IN NATURALIZATION CASES THE ADDITIONAL ALLOWANCES TO CLERKS OF COURTS AND THEIR ASSISTANTS IN NATURALIZATION MATTERS ARE REQUIRED TO BE BASED UPON AND NOT TO EXCEED ONE -HALF OF THE FEES RECEIVED FROM THAT SOURCE DURING THE PRECEDING FISCAL YEAR AND MAY NOT EXCEED ONE-HALF OF THE TOTAL FEES RECEIVED DURING THE CURRENT FISCAL YEAR. THE FEES RECEIVED DURING THE FIRST HALF OF A CURRENT FISCAL YEAR INDICATE THAT THE FEES FOR THE ENTIRE YEAR WILL FALL BELOW DOUBLE THE AMOUNT OF THE ADDITIONAL ALLOWANCE PREVIOUSLY AUTHORIZED. IT IS THE DUTY OF THE SECRETARY OF LABOR TO REDUCE SUCH ALLOWANCES TO THE EXTENT NECESSARY TO PREVENT THEIR TOTAL FOR THE FISCAL YEAR EXCEEDING ONE-HALF OF THE TOTAL FEES RECEIVED DURING THAT YEAR.

A-21692, APRIL 18, 1928, 7 COMP. GEN. 672

CLERKS OF COURTS - ALLOWANCES FOR CLERICAL ASSISTANCE IN NATURALIZATION CASES THE ADDITIONAL ALLOWANCES TO CLERKS OF COURTS AND THEIR ASSISTANTS IN NATURALIZATION MATTERS ARE REQUIRED TO BE BASED UPON AND NOT TO EXCEED ONE -HALF OF THE FEES RECEIVED FROM THAT SOURCE DURING THE PRECEDING FISCAL YEAR AND MAY NOT EXCEED ONE-HALF OF THE TOTAL FEES RECEIVED DURING THE CURRENT FISCAL YEAR. IF, THEREFORE, THE FEES RECEIVED DURING THE FIRST HALF OF A CURRENT FISCAL YEAR INDICATE THAT THE FEES FOR THE ENTIRE YEAR WILL FALL BELOW DOUBLE THE AMOUNT OF THE ADDITIONAL ALLOWANCE PREVIOUSLY AUTHORIZED, IT IS THE DUTY OF THE SECRETARY OF LABOR TO REDUCE SUCH ALLOWANCES TO THE EXTENT NECESSARY TO PREVENT THEIR TOTAL FOR THE FISCAL YEAR EXCEEDING ONE-HALF OF THE TOTAL FEES RECEIVED DURING THAT YEAR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, APRIL 18, 1928:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 10, 1928, AS FOLLOWS:

THE DEPARTMENT DESIRES YOUR DECISION IN THE QUESTION OF CERTAIN ALLOWANCES AUTHORIZED TO BE MADE TO CLERKS OF COURTS FOR ADDITIONAL CLERICAL ASSISTANCE IN CONNECTION WITH NATURALIZATION WORK.

SECTION 13 OF THE ACT OF JUNE 29, 1906 (34 STAT.L., PART 1, P. 600), ORIGINALLY PROVIDED FOR THE ABOVE-MENTIONED ALLOWANCES WITHOUT ANY SPECIFIC LIMITATION AS TO THE AMOUNT THEREOF OR THE METHOD OF COMPUTING THE MAXIMUM AMOUNT ALLOWABLE.

ON JUNE 25, 1910, AN ACT (36 STAT.L, PART 1, P. 829), WAS APPROVED WHICH AMENDED SECTION 13 SO AS TO PROVIDE FOR A LIMITATION ON THE AMOUNT TO BE ALLOWED FOR ADDITIONAL CLERICAL ASSISTANCE AS WELL AS A METHOD FOR COMPUTING SAID ALLOWANCE. ON THE SAME DATE AN ACT MAKING APPROPRIATIONS FOR SUNDRY CIVIL EXPENSES OF THE GOVERNMENT WAS APPROVED. IN THE APPROPRIATION "SALARIES AND EXPENSES, DIVISION OF NATURALIZATION," A CLAUSE WAS CARRIED (36 STAT.L., PART 1, P. 765) WHICH FURTHER SPECIFIED THE MANNER IN WHICH THESE ALLOWANCES WERE TO BE COMPUTED.

THERE BEING SOME QUESTION AS TO WHETHER THESE TWO ACTS, BOTH APPROVED JUNE 25, 1910, WERE IN CONFLICT THE QUESTION WAS SUBMITTED TO THE COMPTROLLER OF THE TREASURY. IN A DECISION DATED JULY 30, 1910 (17 COMP. DEC. 73), HE HELD THAT THESE TWO STATUTES WERE NOT IN CONFLICT BUT MUST BE READ TOGETHER. IN THE LAST SENTENCE OF THAT DECISION HE SAID:

"SUCH MAXIMUM SO FIXED IS NOT TO BE EXCEEDED DURING THE PRESENT FISCAL YEAR, BUT MAY BE REDUCED IF THE CLERK'S RETURN SHOULD SHOW DURING THE YEAR THE PROBABILITY THAT THE FEES COLLECTIBLE DURING THE CURRENT YEAR WOULD FALL BELOW $9,000, THE BASIS UPON WHICH SAID ADDITIONAL COMPENSATION WAS FIXED FOR THE CURRENT FISCAL YEAR.'

AN ACT APPROVED JUNE 12, 1917 (40 STAT.L., PART 1, P. 171), FIXED AS PERMANENT LAW, THE METHOD OF BASING ALLOWANCES AS ORIGINALLY CONTAINED IN THE SUNDRY CIVIL APPROPRIATION ACT OF JUNE 25, 1910 (36 STAT.L., PART 1, P. 765), WITH AN ADDITIONAL CLAUSE WHICH AUTHORIZED THE INCREASING OF THESE ALLOWANCES IN THOSE CASES WHERE INCREASED NATURALIZATION BUSINESS WARRANTED SUCH ACTION.

THE APPROPRIATION "MISCELLANEOUS EXPENSES, BUREAU OF NATURALIZATION, 1928," CONTAINS THE FOLLOWING PROVISION "* * *; CARRYING INTO EFFECT SECTION 13 OF THE ACT OF JUNE 29, 1906 (THIRTY-FOURTH STATUTES,PAGE 600), AS AMENDED BY THE ACT APPROVED JUNE 25, 1910 (THIRTY-SIXTH STATUTES, PAGE 765), AND IN ACCORDANCE WITH THE PROVISIONS OF THE SUNDRY CIVIL ACT OF JUNE 12, 1917; * * *.' THIS SAME LANGUAGE HAS APPEARED IN THIS APPROPRIATION ACT SINCE 1919 AND SUBSTANTIALLY THE SAME LANGUAGE SINCE 1917. ALL OF THESE APPROPRIATION ACTS HAVE CITED THIRTY-SIXTH STATUTES, PAGE 765, AND HAVE OMITTED ANY REFERENCE TO THIRTY-SIXTH STATUTES, PAGE 829.

ACTING UNDER AUTHORITY OF THE ABOVE-QUOTED PROVISIONS OF THE NATURALIZATION LAW AND THE APPROPRIATION "MISCELLANEOUS EXPENSES, BUREAU OF NATURALIZATION, 1928," THE CLERK OF THE SUPERIOR COURT FOR COOK COUNTY, ILLINOIS, WAS GRANTED AN ALLOWANCE FROM THIS APPROPRIATION FOR THE FISCAL YEAR 1928 OF $1,500 FOR ADDITIONAL CLERK HIRE. THIS ALLOWANCE WAS BASED ON HIS COLLECTIONS OF NATURALIZATION FEES FOR THE FISCAL YEAR 1927 AMOUNTING TO $17,249. THERE HAS BEEN A DECREASE IN HIS NATURALIZATION FEE COLLECTIONS FOR THE CURRENT FISCAL YEAR AS COMPARED WITH THE PRECEDING FISCAL YEAR. HIS TOTAL COLLECTIONS FOR THE FIRST QUARTER AMOUNTED TO $2,080 AND FOR THE SECOND QUARTER $2,239, OR A TOTAL FOR THE TWO QUARTERS OF $4,319. IT IS NOT NOW DEFINITELY ASCERTAINABLE WHAT HIS COLLECTIONS WILL BE FOR THE REMAINING TWO QUARTERS OF THE FISCAL YEAR, BUT HIS COLLECTIONS FOR THE FIRST TWO QUARTERS WOULD INDICATE A TOTAL FOR THE FISCAL YEAR OF $8,638.

THE QUESTION PRESENTED FOR DETERMINATION IS WHETHER THE ALLOWANCE OF $1,500, WHICH IS IN ADDITION TO THE $3,000 RETAINABLE BY THIS CLERK AS HIS SHARE OF THE NATURALIZATION FEES, CAN BE CONTINUED FOR THE ENTIRE FISCAL YEAR 1928, EVEN THOUGH THE CLERK'S TOTAL COLLECTIONS OF NATURALIZATION FEES FOR THAT PERIOD MAY FALL SHORT OF A TOTAL OF $9,000.

SECTION 13 OF THE ACT OF JUNE 29, 1906, 34 STAT. 596, AS AMENDED BY THE ACT OF JUNE 25, 1910, 36 STAT. 830, PROVIDES AS FOLLOWS:

THAT THE CLERK OF EACH AND EVERY COURT EXERCISING JURISDICTION IN NATURALIZATION CASES SHALL CHARGE, COLLECT, AND ACCOUNT FOR THE FOLLOWING FEES IN EACH PROCEEDING:

THE CLERK OF ANY COURT COLLECTING SUCH FEES IS HEREBY AUTHORIZED TO RETAIN ONE-HALF OF THE FEES COLLECTED BY HIM IN SUCH NATURALIZATION PROCEEDING; THE REMAINING ONE-HALF OF THE NATURALIZATION FEES IN EACH CASE COLLECTED BY SUCH CLERKS, RESPECTIVELY, SHALL BE ACCOUNTED FOR IN THEIR QUARTERLY ACCOUNTS, WHICH THEY ARE HEREBY REQUIRED TO RENDER THE BUREAU OF IMMIGRATION AND NATURALIZATION, * * *.

* * * PROVIDED, THAT THE CLERKS OF COURTS EXERCISING JURISDICTION IN NATURALIZATION PROCEEDINGS SHALL BE PERMITTED TO RETAIN ONE-HALF OF THE FEES IN ANY FISCAL YEAR UP TO THE SUM OF THREE THOUSAND DOLLARS, AND THAT ALL FEES RECEIVED BY SUCH CLERKS IN NATURALIZATION PROCEEDINGS IN EXCESS OF SUCH AMOUNT SHALL BE ACCOUNTED FOR AND PAID OVER TO SAID BUREAU AS IN THE CASE OF OTHER FEES TO WHICH THE UNITED STATES MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT. THE CLERKS OF THE VARIOUS COURTS EXERCISING JURISDICTION IN NATURALIZATION PROCEEDINGS SHALL PAY ALL ADDITIONAL CLERICAL FORCE THAT MAY BE REQUIRED IN PERFORMING THE DUTIES IMPOSED BY THIS ACT UPON THE CLERKS OF COURTS FROM FEES RECEIVED BY SUCH CLERKS IN NATURALIZATION PROCEEDINGS.

AND IN CASE THE CLERK OF ANY COURT EXERCISING NATURALIZATION JURISDICTION COLLECTS FEES IN EXCESS OF THE SUM OF SIX THOUSAND DOLLARS IN ANY FISCAL YEAR, THE SECRETARY OF COMMERCE AND LABOR MAY ALLOW SALARIES, FOR NATURALIZATION PURPOSES ONLY, TO PAY FOR CLERICAL ASSISTANCE, TO BE SELECTED AND EMPLOYED BY THAT CLERK, ADDITIONAL TO THE CLERICAL FORCE, FOR WHICH CLERKS OF COURTS ARE REQUIRED BY THIS SECTION TO PAY FROM FEES RECEIVED BY SUCH CLERKS IN NATURALIZATION PROCEEDINGS, IF IN THE OPINION OF SAID SECRETARY THE NATURALIZATION BUSINESS OF SUCH CLERK WARRANTS FURTHER ADDITIONAL ASSISTANCE: PROVIDED, THAT IN NO EVENT SHALL THE WHOLE AMOUNT ALLOWED THE CLERK OF A COURT AND HIS ASSISTANTS EXCEED THE ONE-HALF OF THE GROSS RECEIPTS OF THE OFFICE OF SAID CLERK FROM NATURALIZATION FEES DURING SUCH FISCAL YEAR: * * *.

THE ACT APPROVED JUNE 25, 1910, 36 STAT. 765, MAKING APPROPRIATIONS FOR SUNDRY CIVIL EXPENSES OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1911, AND FOR OTHER PURPOSES, ALSO PROVIDES:

SALARIES AND EXPENSES, DIVISION OF NATURALIZATION: * * * FOR THE PURPOSE OF CARRYING INTO EFFECT THAT PART OF SECTION THIRTEEN OF THE ACT OF JUNE TWENTY-NINTH, NINETEEN HUNDRED AND SIX (THIRTY-FOURTH STATUTES, PAGE EIGHT (FIVE) HUNDRED AND NINETY-SIX), WHICH PROVIDES: "AND IN CASE THE CLERK OF ANY COURT COLLECTS FEES IN EXCESS OF THE SUM OF SIX THOUSAND DOLLARS IN ANY ONE YEAR, THE SECRETARY OF COMMERCE AND LABOR MAY ALLOW TO SUCH CLERK FROM THE MONEY WHICH THE UNITED STATES SHALL RECEIVE ADDITIONAL COMPENSATION FOR THE EMPLOYMENT OF ADDITIONAL CLERICAL ASSISTANCE, BUT FOR NO OTHER PURPOSE, IF IN THE OPINION OF THE SAID SECRETARY THE BUSINESS OF SUCH CLERK WARRANTS SUCH ALLOWANCE: " PROVIDED, THAT THE TOTAL COMPENSATION FOR THE ADDITIONAL CLERICAL ASSISTANTS AUTHORIZED BY THAT PORTION OF THE SAID SECTION QUOTED ABOVE TO BE EMPLOYED BY THE CLERKS OF COURTS SHALL IN NO CASE EXCEED ONE HALF OF THE GROSS AMOUNT OF FEES COLLECTED BY SUCH CLERKS IN NATURALIZATION CASES DURING THE FISCAL YEAR IMMEDIATELY PRECEDING, AND THAT THE EXPENDITURES FROM THIS APPROPRIATION SHALL BE IN THE MANNER AND UNDER SUCH REGULATIONS AS THE SECRETARY OF COMMERCE AND LABOR MAY PRESCRIBE, ONE HUNDRED AND FIFTY THOUSAND DOLLARS.

IN DECISION IN 17 COMP. DEC. 73, IT WAS HELD THAT THE TWO ACTS OF JUNE 25, 1910, SUPRA, MUST BE READ TOGETHER AND THAT THEY CONSTITUTE A DOUBLE RESTRICTION UPON THE AMOUNT OF THE ADDITIONAL ALLOWANCES; THAT IS, SUCH ALLOWANCES MUST NOT EXCEED EITHER ONE-HALF OF THE TOTAL FEES COLLECTED DURING THE PRECEDING FISCAL YEAR OR ONE-HALF OF THE TOTAL FEES COLLECTED DURING THE CURRENT FISCAL YEAR.

IN THE SUNDRY CIVIL ACT OF JUNE 12, 1917, 40 STAT. 171, IT WAS PROVIDED:

* * * THAT THE WHOLE AMOUNT ALLOWED FOR A FISCAL YEAR TO THE CLERK OF A COURT AND HIS ASSISTANTS FROM NATURALIZATION FEES AND THIS APPROPRIATION OR ANY SIMILAR APPROPRIATION MADE HEREAFTER SHALL BE BASED UPON AND NOT EXCEED THE ONE-HALF OF THE GROSS RECEIPTS OF SAID CLERK FROM NATURALIZATION FEES DURING THE FISCAL YEAR IMMEDIATELY PRECEDING, UNLESS THE NATURALIZATION BUSINESS OF THE CLERK OF ANY COURT DURING THE YEAR SHALL BE IN EXCESS OF THE NATURALIZATION BUSINESS OF THE PRECEDING YEAR, IN WHICH EVENT THE AMOUNT ALLOWED MAY BE INCREASED TO AN AMOUNT EQUAL TO ONE-HALF THE ESTIMATED GROSS RECEIPTS OF THE SAID CLERK FROM NATURALIZATION FEES DURING THE CURRENT FISCAL YEAR. * * *

THIS STATUTE IS PRACTICALLY A REPETITION OF THE PROVISO IN THE ACT OF JUNE 25, 1910, 36 STAT. 765, BUT IN ADDITION AUTHORIZES AN INCREASE IN THE ALLOWANCES WHEN THE NATURALIZATION BUSINESS FOR THE CURRENT YEAR EXCEEDS THAT FOR THE PREVIOUS YEAR. WHILE THE STATUTORY PROVISIONS FOR THE ADDITIONAL ALLOWANCES IN SUCH CASES ENACTED SINCE THE AMENDMENT OF JUNE 25, 1910, 36 STAT. 829, HAVE FAILED TO MENTION THAT AMENDMENT, NO REPEAL THEREOF IS FOUND AND IT IS NOT SO INCONSISTENT WITH THE OTHER PROVISIONS AS TO HAVE BEEN REPEALED BY IMPLICATION. IT MUST, THEREFORE, BE CONSIDERED AS A CONTINUING STATUTORY RESTRICTION TO BE READ WITH THE OTHER RESTRICTIONS ON SUCH ALLOWANCES.

BASED UPON THE ABOVE STATUTORY PROVISIONS, THE FOLLOWING RULES MAY BE ANNOUNCED:

1. THE CLERK OF THE COURT MAY RETAIN ONE-HALF OF THE TOTAL FEES RECEIVED FROM NATURALIZATION PROCEEDINGS DURING ANY FISCAL YEAR, PROVIDED THE SAID TOTAL DOES NOT EXCEED $6,000 IN THAT YEAR, AND UNDER SUCH CIRCUMSTANCES HE MUST PAY FOR ALL CLERICAL ASSISTANCE OUT OF HIS RETAINED FEES.

2. IF THE TOTAL NATURALIZATION FEES COLLECTED EXCEED $6,000 IN THE CURRENT FISCAL YEAR, THE SECRETARY OF LABOR MAY SPECIALLY AUTHORIZE THE PAYMENT FOR NECESSARY CLERICAL ASSISTANCE IN ADDITION TO THE $3,000 MAXIMUM FEES ALLOWED THE CLERK, BUT THE TOTAL OF THE AMOUNT ALLOWED THE CLERK OF THE COURT PLUS THE AMOUNT PAID TO HIS ASSISTANT MAY NOT EXCEED ONE-HALF OF THE TOTAL FEES COLLECTED IN THAT YEAR.

3. AT THE BEGINNING OF ANY FISCAL YEAR THE ALLOWANCE FOR ADDITIONAL CLERICAL ASSISTANCE IS REQUIRED TO BE FIXED TENTATIVELY AT SUCH SUM AS WILL NOT, WHEN ADDED TO THE $3,000, THE MAXIMUM FEES ALLOWED THE CLERK, EXCEED ONE-HALF OF THE TOTAL FEES RECEIVED DURING THE PRECEDING FISCAL YEAR, BUT SUCH ALLOWANCE MAY, IN THE DISCRETION OF THE SECRETARY OF LABOR, BE INCREASED DURING THE YEAR UP TO BUT NOT TO EXCEED ONE HALF OF THE FEES COLLECTED DURING SAID YEAR IN EXCESS OF $6,000, AND SUCH ALLOWANCE MUST BE DECREASED DURING SAID FISCAL YEAR IF NECESSARY TO BRING IT WITHIN ONE-HALF OF THE SAID FEES COLLECTED DURING SAID YEAR IN EXCESS OF $6,000.

IF, THEREFORE, THE COURT'S FEES SO FAR RECEIVED FROM NATURALIZATION PROCEEDINGS FOR THE FISCAL YEAR 1928 HAVE SO DECLINED AS TO INDICATE THAT THE ALLOWANCES AUTHORIZED FOR THIS FISCAL YEAR WILL EXCEED ONE HALF OF THE AGGREGATE FEES RECEIVED, THE ALLOWANCES FOR THE REMAINDER OF THE FISCAL YEAR SHOULD BE REDUCED SO AS TO BRING THE TOTAL FOR THE FISCAL YEAR WITHIN THE RESTRICTION IMPOSED BY THE STATUTES; THAT IS, THE TOTAL ALLOWANCES FOR THE FISCAL YEAR 1928 MUST NOT EXCEED ONE-HALF OF THE TOTAL FEES RECEIVED FROM NATURALIZATION MATTERS DURING THAT YEAR.