A-26646, APRIL 23, 1929, 8 COMP. GEN. 556

A-26646: Apr 23, 1929

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WERE ALSO IN VIOLATION OF SECTION 3850. NOTWITHSTANDING THERE IS NO MENTION MADE IN THE RELIEF ACT OF THE ACT OF JUNE 3. THE CLAIM IS PRESENTED UNDER SECTION 2 OF THE ACT OF MARCH 1. WHICH PROVIDES AS FOLLOWS: THE COMPTROLLER GENERAL OF THE UNITED STATES IS AUTHORIZED AND DIRECTED TO (1) ALLOW CREDIT IN THE ACCOUNTS OF PRESENT AND FORMER POSTMASTERS AND ACTING POSTMASTERS FOR PAYMENTS MADE BY THEM. OR CLERK SHALL NOT EXCEED $300 IN ANY ONE YEAR. * * * THE LEGAL QUESTION PRESENTED IS WHETHER THE INSTANT CLAIM MAY BE PAID IN VIEW OF THE FACT THAT NO MENTION WAS MADE IN THE RELIEF ACT OF 1929. WHICH WAS VIOLATED BY THE EMPLOYMENT OF CLAIMANT AS A POSTAL CLERK AND AS A MAIL MESSENGER. IS AN EXCEPTION TO THE PROHIBITION CONTAINED IN SECTION 3850.

A-26646, APRIL 23, 1929, 8 COMP. GEN. 556

COMPENSATION - DOUBLE - POSTAL SERVICE EMPLOYEES PAYMENTS MADE BY A POSTMASTER TO A MAIL MESSENGER WHILE HOLDING ANOTHER POSITION IN EXCESS OF $300 IN ANY ONE YEAR, IN VIOLATION OF THE ACT OF JUNE 3, 1924, 43 STAT. 356, WERE ALSO IN VIOLATION OF SECTION 3850, REVISED STATUTES, MENTIONED IN THE RELIEF ACT OF MARCH 1, 1929, 45 STAT. 1441, AND MAY BE REFUNDED TO THE POSTMASTER UNDER THE CONDITIONS PRESCRIBED BY SECTION 2 OF SAID ACT, NOTWITHSTANDING THERE IS NO MENTION MADE IN THE RELIEF ACT OF THE ACT OF JUNE 3, 1924.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 23, 1929:

THERE HAS BEEN PRESENTED ON BEHALF OF HARRY G. DRESSLER, A FORMER ACTING POSTMASTER AT FALLS CREEK, PA., A THIRD-CLASS POST OFFICE, CLAIM FOR $291.31 WHICH HE REFUNDED TO THE GOVERNMENT NOVEMBER 10, 1928, THAT AMOUNT HAVING BEEN PAID BY HIM TO LAWRENCE L. MARTHERS, MAIL MESSENGER, FOR SERVICES RENDERED AS A POSTAL CLERK DURING THE PERIOD FEBRUARY 14, 1928, TO JUNE 30, 1928, IN ADDITION TO PAY AS A MAIL MESSENGER UNDER CONTRACT ENTERED INTO IN 1925 TO PERFORM MAIL MESSENGER SERVICE AT FALLS CREEK, PA., FOR $900 PER ANNUM.

CLAIMANT HAS FILED AFFIDAVITS THAT HE HAS NEVER RECEIVED FROM LAWRENCE L. MARTHERS, OR FROM ANYONE ON HIS BEHALF, ANY PORTION OF SAID AMOUNT.

THE CLAIM IS PRESENTED UNDER SECTION 2 OF THE ACT OF MARCH 1, 1929,45 STAT. 1442, WHICH PROVIDES AS FOLLOWS:

THE COMPTROLLER GENERAL OF THE UNITED STATES IS AUTHORIZED AND DIRECTED TO (1) ALLOW CREDIT IN THE ACCOUNTS OF PRESENT AND FORMER POSTMASTERS AND ACTING POSTMASTERS FOR PAYMENTS MADE BY THEM, PRIOR TO THE DATE OF THE ENACTMENT OF THIS ACT, TO MAIL MESSENGERS, POSTAL EMPLOYEES, AND OTHER EMPLOYEES OF THE UNITED STATES EMPLOYED IN POST OFFICES CONTRARY TO THE PROVISIONS OF SECTIONS 1763, 1764, AND 1765 OF THE REVISED STATUTES, AS AMENDED (U.S.C. TITLE 5, SECTIONS 58, 69, AND 70), SECTION 3850 OF THE REVISED STATUTES (U.S.C. TITLE 39, SECTION 52), AND SECTION 226 OF THE ACT ENTITLED "AN ACT TO CODIFY, REVISE, AND AMEND THE PENAL LAWS OF THE UNITED STATES," APPROVED MARCH 4, 1909, AS AMENDED (U.S.C. TITLE 18, SECTION 356); AND (2) PAY TO SUCH MAIL MESSENGERS, POSTAL EMPLOYEES, AND SUCH OTHER EMPLOYEES AN AMOUNT EQUAL TO THE SUMS REFUNDED BY THEM OR DEDUCTED FROM BALANCES DUE THEM PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, UNDER THE LAWS REFERRED TO IN SUBDIVISION (1) OF THIS SECTION.

SECTION 3850, REVISED STATUTES, PROVIDES AS FOLLOWS:

NO POSTMASTER, ASSISTANT POSTMASTER, OR CLERK EMPLOYED IN ANY POST OFFICE SHALL BE A CONTRACTOR OR CONCERNED IN ANY CONTRACT FOR CARRYING THE MAIL.

THE ACT OF JUNE 3, 1924, 43 STAT. 356, PROVIDES AS FOLLOWS:

* * * IN THE DISCRETION OF THE POSTMASTER GENERAL, POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS AT POST OFFICES OF THE THIRD CLASS, * * * MAY ENTER INTO CONTRACTS FOR THE PERFORMANCE OF MAIL MESSENGER SERVICE * * *: PROVIDED FURTHER, THAT THE TOTAL AMOUNT PAYABLE UNDER SUCH CONTRACT TO ANY POSTMASTER, ASSISTANT POSTMASTER, OR CLERK SHALL NOT EXCEED $300 IN ANY ONE YEAR. * * *

THE LEGAL QUESTION PRESENTED IS WHETHER THE INSTANT CLAIM MAY BE PAID IN VIEW OF THE FACT THAT NO MENTION WAS MADE IN THE RELIEF ACT OF 1929, ABOVE QUOTED, OF THE ACT OF JUNE 3, 1924, SUPRA, WHICH WAS VIOLATED BY THE EMPLOYMENT OF CLAIMANT AS A POSTAL CLERK AND AS A MAIL MESSENGER, PAYMENT BEING MADE FOR THE LATTER SERVICE IN EXCESS OF $300 DURING THE YEAR.

THE ACT OF JUNE 3, 1924, SUPRA, IS AN EXCEPTION TO THE PROHIBITION CONTAINED IN SECTION 3850, REVISED STATUTES, TO THE EXTENT OF MAIL MESSENGER CONTRACTS IN AN AMOUNT NOT IN EXCESS OF $300 IN ANY ONE YEAR. ANY MAIL MESSENGER CONTRACT ENTERED INTO AT A RATE IN EXCESS OF $300 IN ANY ONE YEAR, WHILE A VIOLATION OF THE ACT OF JUNE 3, 1924, SUPRA, NOT MENTIONED IN THE RELIEF ACT OF 1929, ALSO WOULD BE A VIOLATION OF SECTION 3850, REVISED STATUTES, WHICH IS MENTIONED IN THE RELIEF ACT OF 1929. OTHER WORDS, SECTION 3850, REVISED STATUTES, IS BROADER THAN, AND INCLUDES THE RESTRICTIONS OF, THE LATER ACT OF 1924. AS THERE HAS BEEN A VIOLATION OF SECTION 3850, REVISED STATUTES, THE CLAIM FALLS WITHIN THE PURVIEW OF THE RELIEF ACT AND THE AMOUNT THEREOF WILL BE ALLOWED THE CLAIMANT.