A-23400, JUNE 26, 1928, 7 COMP. GEN. 818

A-23400: Jun 26, 1928

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WHOSE RATES OF COMPENSATION WERE ACTUALLY ADJUSTED UNDER THE ACT OF DECEMBER 6. WHICH WERE AUTHORIZED TO BE ADJUSTED UNDER THE ACT OF DECEMBER 6. NOTWITHSTANDING THE SALARY RATE OF SUCH POSITIONS WERE NOT ACTUALLY ADJUSTED UNDER THE ACT OF DECEMBER 6. THE QUESTION PRESENTED IS WHETHER THESE LIMITATIONS PREVENT ADJUSTMENT OF THE SALARIES OF SUCH POSITIONS TO HIGHER AMOUNTS UNDER THE PROVISIONS OF THE ACT OF MAY 28. A SOMEWHAT SIMILAR QUESTION IS PRESENTED IN RESPECT TO HOUSEKEEPERS IN THE INDIAN FIELD SERVICE WHO HAVE BEEN APPOINTED UNDER SECTION 6 OF SUBDIVISION 1 OF SCHEDULE A OF THE CIVIL SERVICE RULES. ADJUSTMENT OF THE COMPENSATION OF THESE POSITIONS WAS MADE UNDER THE ACT OF DECEMBER 6.

A-23400, JUNE 26, 1928, 7 COMP. GEN. 818

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - FIELD EMPLOYEES OF INDIAN SERVICE THE SALARY RATES OF POSITIONS OF INDIAN POLICE AND HOUSEKEEPERS IN THE INDIAN FIELD SERVICE, WHOSE RATES OF COMPENSATION WERE ACTUALLY ADJUSTED UNDER THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, 705, MAY BE ADJUSTED BY THE ADMINISTRATIVE OFFICE UNDER SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, WITHOUT REGARD TO STATUTORY RESTRICTIONS CONTAINED IN THE APPROPRIATION ACTS FOR THE FISCAL YEAR 1929, OR THE PROVISIONS IN SECTION 6 OF SUBDIVISION 1 OF SCHEDULE A OF THE CIVIL SERVICE RULES. THE SALARY RATES FOR THE POSITION OF JUDGE OF INDIAN COURTS, WHICH WERE AUTHORIZED TO BE ADJUSTED UNDER THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, 707, MAY BE ADJUSTED BY THE ADMINISTRATIVE OFFICE UNDER SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, NOTWITHSTANDING THE SALARY RATE OF SUCH POSITIONS WERE NOT ACTUALLY ADJUSTED UNDER THE ACT OF DECEMBER 6, 1924.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 26, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 19, 1928, AS FOLLOWS:

THE ACT OF MARCH 7, 1928, MAKING APPROPRIATIONS FOR THIS DEPARTMENT FOR THE FISCAL YEAR 1929 (PUBLIC, 100), CONTAINS AN ITEM FOR THE PAY OF INDIAN POLICE "INCLUDING CHIEFS OF POLICE AT NOT TO EXCEED $60 PER MONTH EACH AND PRIVATES AT NOT TO EXCEED $40 PER MONTH EACH.'

THE QUESTION PRESENTED IS WHETHER THESE LIMITATIONS PREVENT ADJUSTMENT OF THE SALARIES OF SUCH POSITIONS TO HIGHER AMOUNTS UNDER THE PROVISIONS OF THE ACT OF MAY 28, 1928 (PUBLIC, 555), KNOWN AS THE WELCH ACT.

A SOMEWHAT SIMILAR QUESTION IS PRESENTED IN RESPECT TO HOUSEKEEPERS IN THE INDIAN FIELD SERVICE WHO HAVE BEEN APPOINTED UNDER SECTION 6 OF SUBDIVISION 1 OF SCHEDULE A OF THE CIVIL SERVICE RULES, WHICH ALLOWS APPOINTMENTS TO BE MADE WITHOUT EXAMINATION WHERE THE COMPENSATION DOES NOT EXCEED $480 PER ANNUM AND WHERE THE DUTIES REQUIRE ONLY A PORTION OF THE TIME.

ADJUSTMENT OF THE COMPENSATION OF THESE POSITIONS WAS MADE UNDER THE ACT OF DECEMBER 6, 1924, AND THEY APPEAR TO FALL WITHIN THE PROVISIONS OF SECTION 3 OF THE WELCH ACT UNLESS THE LIMITATIONS ABOVE MENTIONED OPERATE TO PREVENT IT. A MORE COMPREHENSIVE STATEMENT OF THE MATTER IS CONTAINED IN AN OPINION BY THE SOLICITOR FOR THIS DEPARTMENT, COPY OF WHICH IS INCLOSED. I SHOULD BE PLEASED TO HAVE YOUR DECISION AS TO WHETHER THE LIMITATIONS CONTAINED IN THE PRIOR LAW AND THE CIVIL SERVICE RULES PREVENT ADJUSTMENT OF THE PAY OF THESE POSITIONS UNDER THE WELCH ACT.

A FURTHER QUESTION ARISES IN RESPECT TO JUDGES OF INDIAN COURTS. THE APPROPRIATION ACT OF MARCH 7, 1928, CONTAINS THE FOLLOWING PROVISION:

"FOR PAY OF JUDGES OF INDIAN COURTS WHERE TRIBAL RELATIONS NOW EXIST, AT RATES TO BE FIXED BY THE COMMISSIONER OF INDIAN AFFAIRS, $15,000.'

THE ACT OF DECEMBER 6, 1924, (43 STAT. 704), CONTAINED AN APPROPRIATION FOR ADJUSTMENT OF THE PAY OF JUDGES OF INDIAN COURTS, BUT IT WAS NOT ACTUALLY APPLIED OWING TO THE PENDING APPROPRIATION BILL FOR THE FISCAL YEAR 1926, WHICH LIMITED THE NUMBER OF JUDGES TO 70 AND THE APPROPRIATION TO $8,400. THAT PERMITTED PAYMENT AT THE RATE OF $10 PER MONTH FOR EACH, OR $120 PER ANNUM, THE SAME AS HAD BEEN PAID FOR THE PRIOR YEAR. LIMITATION TO THE NUMBER OF JUDGES WHO MAY BE EMPLOYED IS CONTAINED IN THE APPROPRIATION ACTS FOR THE CURRENT AND ENSUING FISCAL YEARS. MOST OF THEM STILL ARE PAID $10 PER MONTH BUT A FEW RECEIVE $25 PER MONTH. WHILE THE ACT OF DECEMBER 6, 1924, AUTHORIZED ADJUSTMENT OF THE PAY OF THESE POSITIONS, NONE WAS ACTUALLY MADE, AND UNDER SUCH CONDITIONS THE QUESTION PRESENTED IS WHETHER ADJUSTMENT MAY NOW BE MADE UNDER SECTION 3 OF THE WELCH ACT IN SUCH A WAY AS TO INCREASE THE TOTAL AMOUNT TO MORE THAN THE $15,000 APPROPRIATED FOR JUDGES OF INDIAN COURTS BY THE ACT OF MARCH 7, 1928.

IN DECISION OF JUNE 21, 1928, A-23263, 7 COMP. GEN. 804, IT WAS HELD, WITH RESPECT TO THE APPLICATION OF SECTION 3 OF THE ACT OF MAY 28, 1928, KNOWN AS THE WELCH ACT, TO THE FIELD SERVICE, AS FOLLOWS:

THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, 705, SPECIFICALLY APPLIED TO THE INTERSTATE COMMERCE COMMISSION. SAID ACT PROVIDED AS FOLLOWS:

"THE APPROPRIATIONS HEREIN MADE MAY BE UTILIZED BY THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO ACCOMPLISH THE PURPOSES OF THIS ACT, NOTWITHSTANDING THE SPECIFIC RATES OF COMPENSATION AND THE SALARY RESTRICTIONS CONTAINED IN THE REGULAR ANNUAL APPROPRIATION ACTS FOR THE FISCAL YEAR 1925 OR THE SALARY RESTRICTIONS IN OTHER ACTS WHICH LIMIT SALARIES TO RATES IN CONFLICT WITH THE RATES FIXED BY THE CLASSIFICATION ACT OF 1923 FOR THE DEPARTMENTAL SERVICE.'

THIS ACT HAS BEEN EXTENDED THROUGH EACH SUBSEQUENT FISCAL YEAR. FOR THE FISCAL YEAR 1929, SEE SECTION 2 OF THE ACT OF MARCH 5, 1928, PUBLIC, NO. 93. THESE STATUTES HAVE HERETOFORE BEEN CONSTRUED AND APPLIED AS AUTHORIZING THE ADMINISTRATIVE OFFICE TO ADJUST THE COMPENSATION OF POSITIONS THE SALARY OF WHICH HAD THERETOFORE BEEN SPECIFICALLY FIXED BY OTHER STATUTE. 4 COMP. GEN. 582; ID. 625. THE PROVISIONS OF THE ACT OF MAY 28, 1928, DO NOT AUTOMATICALLY INCREASE THE RATES OF COMPENSATION OF ANY FIELD POSITION WHETHER THE RATES WERE OR WERE NOT SPECIFICALLY FIXED BY OTHER LAW, BUT THERE IS FOR ADMINISTRATIVE CONSIDERATION SUCH ACTION, IF ANY, AS MAY BE NECESSARY TO ADJUST THE RATES OF COMPENSATION FOR FIELD POSITIONS "TO CORRESPOND, SO FAR AS PRACTICABLE, TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA" AS AMENDED BY THE ACT OF MAY 28, 1928, FIXING THE NEW SCHEDULE OF SALARY RATES.

ACCORDINGLY, AS TO THE INDIAN POLICE AND HOUSEKEEPERS IN THE INDIAN SERVICE, WHOSE RATES OF COMPENSATION WERE ACTUALLY ADJUSTED UNDER THE ACT OF DECEMBER 6, 1924, SUPRA, NEITHER THE STATUTORY RESTRICTION CONTAINED IN THE APPROPRIATION ACT FOR 1929 NOR THE PROVISION IN SECTION 6 OF SUBDIVISION 1 OF SCHEDULE A OF THE CIVIL SERVICE RULES PRECLUDES SUCH ADMINISTRATIVE ACTION, IF ANY, AS MAY BE NECESSARY UNDER SECTION 3 OF THE WELCH ACT. THE RESTRICTION IN THE CIVIL SERVICE RULES REFERRED TO IS ON APPOINTMENTS AND MAY NOT BE APPLIED TO PREVENT ADMINISTRATIVE ACTION UNDER SECTION 3 OF THE WELCH ACT. THERE MIGHT BE FOR THE CONSIDERATION OF THE CIVIL SERVICE COMMISSION WHETHER THE MAXIMUM OF $480 PER ANNUM FOR POSITIONS TO WHICH APPOINTMENTS MAY BE MADE WITHOUT EXAMINATION SHOULD NOT BE INCREASED TO CORRESPOND TO THE INCREASES AUTHORIZED BY THE WELCH ACT.

THE APPLICATION OF SECTION 3 OF THE WELCH ACT TO JUDGES OF INDIAN COURTS IS NOT SO CLEAR. IT WILL BE NOTED THAT THE SECTION APPLIES TO "CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924.' IT COULD BE REASONED, PERHAPS, THAT THIS PROVISION WOULD APPLY ONLY TO POSITIONS THE COMPENSATION OF WHICH WAS ACTUALLY INCREASED UNDER THE ACT OF 1924. BUT THE USE OF THE PREPOSITION "BY" RATHER THAN "UNDER" IMMEDIATELY BEFORE THE WORDS "THE ACT OF DECEMBER 6, 1924," MAY BE ACCEPTED AS SHOWING AN INTENT TO AUTHORIZE ADJUSTMENTS BY ADMINISTRATIVE OFFICES UNDER THE WELCH ACT AS TO ALL FIELD POSITIONS WHICH THE 1924 STATUTE AUTHORIZED TO BE ADJUSTED, REGARDLESS OF WHETHER THE ADMINISTRATIVE OFFICE ACTUALLY MADE THE ADJUSTMENT UNDER THE EARLIER LAW. THE ACT OF DECEMBER 6, 1924, 43 STAT. 707, SPECIFICALLY INCLUDED AN ITEM "FOR PAY OF JUDGES, INDIAN COURTS, $13,660.80.' ACCORDINGLY, THE SALARIES OF JUDGES OF INDIAN COURTS MAY BE ADJUSTED BY THE ADMINISTRATIVE OFFICE UNDER THE PROVISIONS OF SECTION 3 OF THE WELCH ACT.