A-25685, A-31079, OCTOBER 17, 1933, 13 COMP. GEN. 108

A-25685,A-31079: Oct 17, 1933

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A PERSON WHO VOLUNTARILY ASSUMES THE DUTIES OF ACTING POSTMASTER WITHOUT DESIGNATION BY THE POSTMASTER GENERAL IS NOT ENTITLED TO ANY COMPENSATION THEREFOR UNLESS AND UNTIL HE HAS BEEN LAWFULLY DESIGNATED TO ACT. THE FIRST ASSISTANT POSTMASTER GENERAL HAS BROUGHT TO MY ATTENTION WHAT SEEMS TO HAVE BEEN FOR SOME TIME A VEXING PROBLEM FOR BOTH YOUR OFFICE AND THE DEPARTMENT WITH RESPECT TO THE INSTALLATION AND PAYMENT OF ACTING POSTMASTERS CONSONANTLY WITH ALL LAWS ON THE SUBJECT. RENDER THE ACCOUNTS OF THE POST OFFICE IN THE NAME OF THE OUTGOING POSTMASTER FOR THE PERIOD FROM THE DATE HE ASSUMES CHARGE AS SUCH UNTIL THE DATE HIS BOND IS ACCEPTED BY THE DEPARTMENT. IT IS UNDERSTOOD THIS REQUIREMENT IS BASED ON THE LAW AS STATED IN SECTION 415 OF THE POSTAL LAWS AND REGULATIONS (39 U.S.C. 38.

A-25685, A-31079, OCTOBER 17, 1933, 13 COMP. GEN. 108

BONDS - ACTING POSTMASTERS - VOLUNTEERS WHERE AN ACTING POSTMASTER WHO HAS BEEN PROPERLY DESIGNATED AS SUCH ASSUMES CHARGE OF A POST OFFICE BEFORE THE APPROVAL OF HIS BOND, IT WOULD BE PROPER TO SO WORD THE BOND AS TO BECOME EFFECTIVE FROM THE DATE HE ACTUALLY ASSUMED CHARGE OF THE OFFICE, NOTWITHSTANDING THAT THE BOND OF THE FORMER POSTMASTER CONTINUES FOR THE PROTECTION OF THE GOVERNMENT UNTIL THE BOND OF THE NEW APPOINTEE HAS BEEN APPROVED. A PERSON WHO VOLUNTARILY ASSUMES THE DUTIES OF ACTING POSTMASTER WITHOUT DESIGNATION BY THE POSTMASTER GENERAL IS NOT ENTITLED TO ANY COMPENSATION THEREFOR UNLESS AND UNTIL HE HAS BEEN LAWFULLY DESIGNATED TO ACT. SERVICES OF A VOLUNTEER ACTING AS POSTMASTER CANNOT BE CONSIDERED AS RENDERED IN AN EMERGENCY WITHIN THE PURVIEW OF SECTION 3879, REVISED STATUTES, AS AMENDED.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, OCTOBER 17, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 1, 1933, AS FOLLOWS:

SINCE THE RECEIPT OF YOUR LETTER OF JUNE 5, 1933, UNDER FILES A 25685 AND A-31079, THE FIRST ASSISTANT POSTMASTER GENERAL HAS BROUGHT TO MY ATTENTION WHAT SEEMS TO HAVE BEEN FOR SOME TIME A VEXING PROBLEM FOR BOTH YOUR OFFICE AND THE DEPARTMENT WITH RESPECT TO THE INSTALLATION AND PAYMENT OF ACTING POSTMASTERS CONSONANTLY WITH ALL LAWS ON THE SUBJECT, AND ONE WHICH ASSUMES AN IMPORTANCE WARRANTING FRESH REVIEW AND PROMPT SETTLEMENT.

I AM ADVISED THERE REMAIN TWO IMPORTANT POINTS TO ADJUDICATE, AS FOLLOWS:

FIRST, THE POSITION HAS RECENTLY BEEN TAKEN BY YOUR OFFICE THAT A PERSON ASSUMING CHARGE OF A POST OFFICE AS ACTING POSTMASTER MUST, UNDER THE LAW, RENDER THE ACCOUNTS OF THE POST OFFICE IN THE NAME OF THE OUTGOING POSTMASTER FOR THE PERIOD FROM THE DATE HE ASSUMES CHARGE AS SUCH UNTIL THE DATE HIS BOND IS ACCEPTED BY THE DEPARTMENT. IT IS UNDERSTOOD THIS REQUIREMENT IS BASED ON THE LAW AS STATED IN SECTION 415 OF THE POSTAL LAWS AND REGULATIONS (39 U.S.C. 38, SUPP. V), NAMELY, THAT "EVERY POSTMASTER AND HIS SURETIES SHALL BE RESPONSIBLE UNDER THEIR BOND FOR THE SAFEKEEPING OF THE PUBLIC PROPERTY OF THE POST OFFICE, AND THE DUE PERFORMANCE OF THE DUTIES THEREOF, UNTIL THE EXPIRATION OF THE COMMISSION, OR UNTIL A SUCCESSOR HAS BEEN DULY APPOINTED AND QUALIFIED, AND HAS TAKEN POSSESSION OF THE OFFICE.'

IN VIEW OF THIS RULING BY YOUR OFFICE MAY I ASK WHETHER IT WOULD NOT BE PROPER FOR SURETY COMPANIES TO EXECUTE THE BONDS OF ACTING POSTMASTERS AS OF THE DATES SUCH TEMPORARY APPOINTEES ACTUALLY ASSUME CHARGE OF THE POST OFFICE, ATTENTION BEING INVITED TO THE OBLIGATION PRINTED IN THESE BONDS WHICH BINDS TO THE DATE OF ASSUMING CHARGE, AS FOLLOWS:

"NOW THE CONDITION OF THIS OBLIGATION IS, THAT IF THE SAID --------- - SHALL ON AND AFTER THE DATE ----- TOOK CHARGE OF THE POST OFFICE, FAITHFULLY DISCHARGE ALL DUTIES AND TRUSTS IMPOSED ON --------- AS ACTING POSTMASTER EITHER BY LAW OR BY THE REGULATIONS OF THE POST OFFICE DEPARTMENT, AND SHALL PERFORM ALL DUTIES AS FISCAL AGENT OF THE GOVERNMENT IMPOSED ON ----- BY LAW OR BY REGULATION OF THE TREASURY DEPARTMENT MADE IN CONFORMITY WITH LAW, AND SHALL ALSO PERFORM ALL DUTIES AND OBLIGATIONS IMPOSED UPON OR REQUIRED OF ------ BY LAW, OR BY REGULATION MADE PURSUANT TO LAW, IN CONNECTION WITH THE POSTAL SAVINGS SYSTEM, THEN THIS OBLIGATION SHALL BE VOID; OTHERWISE, OF FORCE.'

IN THE EXPERIENCE OF THE DEPARTMENT THERE WOULD BE NO OBJECTION TO THIS PROCEDURE BY THE SURETY COMPANIES. INQUIRY HAS BEEN MADE AND THEY ASSUREDLY UNDERSTAND THEIR LIABILITY TO BEGIN FROM THE DAY THE ACTING POSTMASTER ASSUMES CHARGE OF THE POST OFFICE, WHICH DATE THE APPOINTEE IS REQUIRED TO STATE IN THE BODY OF THE BOND.

TO AFFORD COMPLETE COMPLIANCE WITH THE REQUIREMENTS OF YOUR OFFICE IN THIS MATTER WOULD IT NOT BE FURTHER POSSIBLE FOR THE DEPARTMENT TO APPROVE SUCH A BOND AS OF, OR EFFECTIVE FROM AND AFTER, THE DATE THE APPOINTEE ASSUMED CHARGE OF THE POST OFFICE? IF IN YOUR JUDGMENT A REWORDING OF THE BOND IS NECESSARY TO ACCOMPLISH THE PURPOSE, THAT WILL BE ATTENDED TO IF YOU WILL KINDLY INDICATE THE FORM WHICH WILL BE ACCEPTABLE TO YOU.

I AM HOPEFUL THAT YOU WILL AGREE TO THE ARRANGEMENT AS STATED IN THE FOREGOING AS I PERSONALLY DO NOT THINK WE SHOULD PLACE THE GOVERNMENT IN THE ANOMALOUS POSITION OF HOLDING THAT A POSTMASTER WHO HAS RELINQUISHED THE OFFICE BY DIRECTION OF THE HEAD OF HIS DEPARTMENT, AND IN SOME INSTANCES BY REMOVAL WITH PREJUDICE, IS RESPONSIBLE FOR ACTS OCCURRING DURING A PERIOD SUBSEQUENT TO THE DATE HE LEFT THE FEDERAL SERVICE, WHICH MANY TIMES DUE TO CERTAIN EXIGENCIES AND EMERGENCIES MAY BE SEVERAL WEEKS. I AM SURE YOU REALIZE THAT REGARDLESS OF HOW EXPLICIT THE DIRECTION ISSUING FROM THE DEPARTMENT MIGHT BE WITH A VIEW TO REQUIRING COMPLIANCE WITH CURRENT INSTRUCTIONS FROM YOUR OFFICE FOR HANDLING THIS FEATURE IN ACCORDANCE WITH THE LAW, THE COMMON UNDERSTANDING OF WHAT IS EQUITABLE WILL CONTINUE TO OPERATE TO DEFEAT THE PURPOSE OF SUCH INSTRUCTIONS AND RESULT IN MORE CONFUSION AND HARASSING CORRESPONDENCE.

THE OTHER QUESTION WHICH I SHOULD LIKE TO PRESENT TO YOU, THE SETTLEMENT OF WHICH I AM SURE YOU WILL AGREE IS EXTREMELY URGENT, IS THAT OF THE PAYMENT OF A PERSON WHO CONDUCTS A POST OFFICE DURING THE INTERIM BETWEEN THE DEATH OF A POSTMASTER AND THE APPOINTMENT AND QUALIFICATION OF AN ACTING POSTMASTER.

IN YOUR LETTER OF JUNE 5, 1933, IT WAS RULED THAT SUCH PERSONS AS DESCRIBED IN THE PRECEDING PARAGRAPH WERE NOT DE FACTO OFFICERS AND COULD NOT THEREFORE UNDER A DECISION OF THE UNITED STATES SUPREME COURT (U.S. V. BADEAU, AS REPORTED IN THE UNITED STATES SUPREME COURT REPORTS, VOL. 130, P. 439) RECEIVE COMPENSATION FOR THEIR SERVICES FROM THE GOVERNMENT. YOU STATED IN THAT LETTER AS FOLLOWS: "NO SUCH APPOINTMENT IS ISSUED TO AN INDIVIDUAL TO DISCHARGE THE DUTIES OF A POSTMASTER DURING THE INTERVAL BETWEEN THE DEATH, RESIGNATION, OR REMOVAL OF A POSTMASTER AND THE APPOINTMENT OR DESIGNATION OF AN ACTING POSTMASTER" AND THAT "SUCH PERSON AS MAY DISCHARGE THE DUTIES OF A POSTMASTER DURING THE INTERVAL IS A VOLUNTEER.'

THE DEPARTMENT, OF COURSE, IS ESTOPPED BY LAW FROM ACCEPTING VOLUNTARY SERVICE, SECTION 214 OF THE POSTAL LAWS AND REGULATIONS (31 U.S.C. 665), STATING:

"NOR SHALL ANY DEPARTMENT OR ANY OFFICER OF THE GOVERNMENT ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT OR EMPLOY PERSONAL SERVICE IN EXCESS OF THAT AUTHORIZED BY LAW, EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY, ETC.'

IT IS MY FEELING FOLLOWING A THOROUGH INQUIRY INTO THE SUBJECT THAT A VACANCY DUE TO THE DEATH OF AN INCUMBENT IS AN EMERGENCY SUCH AS CONTEMPLATED IN THE LAW. AN EMERGENCY TRULY EXISTS AS THERE ARE IMMEDIATELY UPON THE OCCURRENCE OF SUCH VACANCY HUNDREDS AND OFTEN THOUSANDS OF DOLLARS WORTH OF GOVERNMENT PROPERTY IN DANGER OF THEFT AND DESTRUCTION. CASUALTIES OF THIS NATURE ARE NOT UNKNOWN NOR REMOTE. THESE EMERGENCIES DO NOT ARISE IN THE FIRST- OR SECOND-CLASS OFFICES AS SUCH OFFICES MAY BE CONDUCTED DURING THESE PERIODS BY THE ASSISTANT POSTMASTERS IF AUTHORIZED, OR THE SENIOR CLERKS. AT THE THIRD- AND FOURTH-CLASS POST OFFICES, HOWEVER, AND PARTICULARLY THE LATTER, WHERE THERE IS NO AUTHORIZED CLERICAL COMPLEMENT, THE EMERGENCY IS REAL.

I WOULD SUGGEST THEREFORE THAT IN THE EVENT OF THE DEATH OF THE POSTMASTER AT A THIRD- OR FOURTH-CLASS POST OFFICE THAT THE PERSON (USUALLY THE WIFE OF THE POSTMASTER OR SOME MEMBER OF HIS FAMILY, OR SOME OTHER PERSON WHO HAS HAD EXPERIENCE IN THE OFFICE) CONDUCTING THE POST OFFICE FROM THE DATE OF DEATH UNTIL THE APPOINTMENT AND QUALIFICATION OF AN ACTING POSTMASTER, BE PAID THE COMPENSATION OF THE POSTMASTER FOR HIS SERVICES, CONDITIONED UPON THE CERTIFICATION BY THE POSTMASTER GENERAL IN WRITING (IN WHATEVER FORM YOU DEEM NECESSARY) THAT AN EMERGENCY, UNDER THE LAW EXISTS. THIS PROCEDURE WILL OBVIATE, I THINK, THE NECESSITY OF THE DEPARTMENT AGAIN REQUESTING CORRECTIVE LEGISLATION OF THE CONGRESS AT A TIME WHEN OTHER PUBLIC MATTERS MIGHT WELL BE CONSIDERED AS HAVING PRECEDENCE.

PLEASE BE ASSURED I SHALL GREATLY APPRECIATE YOUR COOPERATION IN THIS MATTER AND IF THE DEPARTMENT CAN FURNISH ANY ADDITIONAL INFORMATION, PLEASE SO ADVISE AND IT WILL BE FORTHCOMING, OR, IF YOU PREFER, I SHALL BE GLAD TO ASK THE FIRST ASSISTANT POSTMASTER GENERAL TO ARRANGE A CONFERENCE WITH YOU.

YOUR SUBMISSION PRESENTS TWO SEPARATE AND DISTINCT PROPOSITIONS: FIRST, AS TO THE ACCOUNTS AND RESPONSIBILITY OF A REGULARLY DESIGNATED ACTING POSTMASTER COVERING THE PERIOD FROM THE TIME HE ASSUMED CHARGE OF THE OFFICE TO THE DATE OF APPROVAL OF HIS BOND; AND, SECOND, AS TO PAYMENT OF COMPENSATION TO A PERSON WHO VOLUNTARILY ASSUMES CHARGE OF A VACANT OFFICE (USUALLY AN OFFICE OF THE FOURTH CLASS) WITHOUT FIRST HAVING BEEN DESIGNATED BY THE PRESIDENT OR THE POSTMASTER GENERAL TO DO SO.

WITH RESPECT TO THE FIRST PROPOSITION, WHILE UNDER THE PROVISION OF SECTION 3836, REVISED STATUTES, AS AMENDED, THE BOND OF THE FORMER POSTMASTER COVERS THE PERIOD UP TO DATE OF APPOINTMENT AND QUALIFICATION OF A SUCCESSOR, THE REGULARLY DESIGNATED SUCCESSOR--- WHETHER AS ACTING POSTMASTER OR POSTMASTER--- SHOULD RENDER AN ACCOUNT IN HIS OWN NAME COVERING THE PERIOD FROM THE DATE HE ASSUMED CHARGE OF THE OFFICE OR THE DATE OF HIS PROPER DESIGNATION, WHICHEVER IS THE LATER, AND THE BOND OF SUCH SUCCESSOR NOT ONLY MAY BUT SHOULD BE SO WORDED AS TO COVER THE PERIOD FROM THE DATE THE SUCCESSOR ASSUMED CHARGE OF THE OFFICE. THE PROVISION OF SECTION 3836, REVISED STATUTES, AS AMENDED, RELATIVE TO THE CONTINUING LIABILITY UNDER THE BOND OF AN OUTGOING POSTMASTER WAS INTENDED FOR THE PROTECTION OF THE GOVERNMENT UNTIL THE EFFECTIVE DATE OF THE BOND OF THE SUCCESSOR AND DOES NOT PRECLUDE THE BOND OF THE SUCCESSOR FROM BEING MADE EFFECTIVE FROM THE DATE THE SUCCESSOR ASSUMED CHARGE OF THE OFFICE, ALTHOUGH THE BOND OF THE SUCCESSOR MAY NOT BE APPROVED UNTIL A LATER DATE. THAT IS TO SAY, THE LIABILITY UNDER THE BOND OF THE OUTGOING POSTMASTER CONTINUES UNTIL THE BOND OF THE SUCCESSOR IS APPROVED, BUT IF AND WHEN APPROVED, THE BOND OF THE SUCCESSOR MAY RELATE BACK TO THE DATE THE SUCCESSOR ASSUMED CHARGE OF THE OFFICE AND SHOULD BE SO WORDED AS TO COVER THE PERIOD FROM THAT DATE. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

IN THE MATTER OF COMPENSATION OF PERSONS WHO PERFORM THE DUTIES OF A POSTMASTER VOLUNTARILY AND BEFORE THEY ARE DESIGNATED AS ACTING POSTMASTERS, THIS OFFICE CANNOT CONCUR IN YOUR SUGGESTION THAT THEIR SERVICES BE CONSIDERED AS RENDERED IN AN EMERGENCY, AND THUS EXCEPTED FROM THE RESTRICTION AGAINST VOLUNTARY SERVICES FOUND IN SECTION 3879, REVISED STATUTES, AS AMENDED, 34 STAT. 49. THAT STATUTE, WHILE AUTHORIZING THE ACCEPTANCE OF VOLUNTARY SERVICES IN A "SUDDEN EMERGENCY," LIMITS THE CONDITIONS UNDER WHICH A SUDDEN EMERGENCY MAY BE CONSIDERED TO EXIST--- THAT IS, (1) INVOLVING THE LOSS OF HUMAN LIFE, (2) THE DESTRUCTION OF PROPERTY. A VACANCY IN THE OFFICE OF A POSTMASTER RESULTING FROM THE POSTMASTER'S DEATH OR REMOVAL DOES NOT NECESSARILY RESULT IN THE DESTRUCTION OF PUBLIC PROPERTY. WHILE IT IS TRUE THERE MAY BE INVOLVED THE CONSERVATION OF PUBLIC PROPERTY AND PUBLIC FUNDS, THE INTERESTS OF THE GOVERNMENT, FOR THE MOST PART, WOULD APPEAR TO BE PROTECTED BY THE SURETY OF THE FORMER POSTMASTER.

NO PERSON IS ENTITLED TO CLAIM THE SALARY OF AN OFFICE FOR ANY PERIOD PRIOR TO BECOMING INVESTED WITH THE LEGAL TITLE TO THE OFFICE IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING THEREFOR. PROVISION HAS BEEN MADE BY STATUTE, ACT OF MARCH 1, 1921, 41 STAT. 1151, FOR THE POSTMASTER GENERAL TO DESIGNATE SOME PERSON TO ACT AS POSTMASTER AT A VACANT OFFICE UNTIL A REGULAR APPOINTMENT CAN BE MADE, AND THE ACT OF MARCH 3, 1879, 20 STAT. 362, AUTHORIZES THE PERSON SO DESIGNATED TO RECEIVE THE COMPENSATION OF THE OFFICE (13 COMP. DEC. 657), BUT THERE IS NO AUTHORITY UNDER EXISTING LAW FOR A PERSON WHO VOLUNTARILY ASSUMES THE DUTIES OF AN OFFICE WITHOUT SUCH DESIGNATION TO RECEIVE THE COMPENSATION OF THE OFFICE.

IT WOULD SEEM THAT THE NECESSITY FOR A VOLUNTEER TO TAKE CHARGE OF THE OFFICE MIGHT BE OBVIATED BY THE DESIGNATION IN ADVANCE OF SOME PERSON--- A MEMBER OF THE POSTMASTER'S FAMILY OR SOME OTHER COMPETENT AND RESPONSIBLE PERSON--- TO ASSUME CHARGE AS ACTING POSTMASTER UPON THE DEATH, DISAPPEARANCE, OR INCAPACITY OF THE POSTMASTER. A PERSON ASSUMING CHARGE OF AN OFFICE UNDER SUCH A DESIGNATION WOULD, UNDER THE PROVISIONS OF THE ACT OF 1879, SUPRA, BE ENTITLED TO THE SALARY THEREOF. IT IS POSSIBLE, OF COURSE, THAT IT WOULD NOT BE DESIRABLE FOR A MEMBER OF THE POSTMASTER'S FAMILY OR OTHER PERSON PREVIOUSLY DESIGNATED TO TAKE CHARGE OF THE OFFICE IN CASE THE POSTMASTER SHOULD BE REMOVED FOR CAUSE.

BUT IN SUCH CASES THE FACT OF THE REMOVAL AND THE NECESSITY FOR THE DESIGNATION OF AN ACTING POSTMASTER WOULD BE KNOWN SIMULTANEOUSLY WITH, IF NOT IN ADVANCE OF, THE VACANCY, AND A PERSON TO TAKE CHARGE COULD BE DESIGNATED BY TELEGRAPH. IT IS NOT APPARENT HOW SUCH PROCEDURE SHOULD INVOLVE ANY SERIOUS ADMINISTRATIVE DIFFICULTIES, BUT SHOULD THERE BE ANY INSURMOUNTABLE OBJECTIONS TO SUCH PROCEDURE, THE ONLY ALTERNATIVE WOULD APPEAR TO BE TO SUBMIT THE MATTER TO THE CONGRESS FOR ITS CONSIDERATION WHETHER ADDITIONAL LEGISLATION IN THE MATTER SHALL BE ENACTED, AND IN THAT CONNECTION IT IS NOTED THAT THE CURRENT APPROPRIATION FOR THE PAYMENT OF THE SALARIES OF POSTMASTERS, 47 STAT. 1509, IS WORDED AS FOLLOWS:

FOR COMPENSATION TO POSTMASTERS AND FOR ALLOWANCES FOR RENT, LIGHT, FUEL, AND EQUIPMENT TO POSTMASTERS OF THE FOURTH CLASS, $46,000,000.

IT IS BELIEVED THAT THE SITUATION HERE PRESENTED COULD BE MET BY INSERTING IN THIS APPROPRIATION FOR THE FISCAL YEAR 1935 AND THEREAFTER, BETWEEN THE WORD "POSTMASTERS" AND THE WORD "AND" IN THE FIRST LINE THEREOF, THE FOLLOWING: INCLUDING COMPENSATION AS POSTMASTER TO PERSONS WHO, PENDING THE DESIGNATION OF AN ACTING POSTMASTER, ASSUME AND PROPERLY PERFORM THE DUTIES OF POSTMASTER IN THE EVENT OF A VACANCY IN THE OFFICE OF POSTMASTER OF THE THIRD OR FOURTH CLASS.