A-28224, AUGUST 8, 1929, 9 COMP. GEN. 60

A-28224: Aug 8, 1929

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COMPENSATION - RECESS APPOINTMENTS - FEDERAL FARM BOARD THE FEDERAL FARM BOARD WAS CREATED BY THE ACT OF JUNE 15. THE POSITIONS OF MEMBERS OF THE BOARD BECAME VACANT ON THAT DATE WHILE THE SENATE WAS IN SESSION. AS SUCH POSITIONS ARE REQUIRED BY LAW TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. ARE NOT ENTITLED TO BE PAID COMPENSATION UNTIL THEIR APPOINTMENTS HAVE BEEN CONFIRMED BY THE SENATE. IT BEING STATED IN CONNECTION THEREWITH THAT A DOUBT EXISTS AS TO THE AUTHORITY TO PAY COMPENSATION TO THE MEMBERS INVOLVED UNTIL THEIR APPOINTMENTS HAVE BEEN CONFIRMED BY THE SENATE. 1929 AND IT APPEARS THAT IT WAS NOT UNTIL SUBSEQUENT TO THE DATE OF ADJOURNMENT THAT THE SIX MEMBERS OF THE BOARD WHOSE NAMES APPEAR ON THE PAY ROLL WERE GIVEN APPOINTMENTS BY THE PRESIDENT TO BE EFFECTIVE JULY 15.

A-28224, AUGUST 8, 1929, 9 COMP. GEN. 60

COMPENSATION - RECESS APPOINTMENTS - FEDERAL FARM BOARD THE FEDERAL FARM BOARD WAS CREATED BY THE ACT OF JUNE 15, 1929, 46 STAT. 11, AND THE POSITIONS OF MEMBERS OF THE BOARD BECAME VACANT ON THAT DATE WHILE THE SENATE WAS IN SESSION. AS SUCH POSITIONS ARE REQUIRED BY LAW TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, THE APPOINTEES UNDER RECESS APPOINTMENTS MADE BY THE PRESIDENT TO SUCH POSITIONS AFTER THE SENATE ADJOURNED JUNE 19, 1929, ARE NOT ENTITLED TO BE PAID COMPENSATION UNTIL THEIR APPOINTMENTS HAVE BEEN CONFIRMED BY THE SENATE.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL FARM BOARD, AUGUST 8, 1929:

THERE HAS BEEN SUBMITTED BY THE SECRETARY OF YOUR BOARD FOR PREAUDIT BY THIS OFFICE A PAY-ROLL VOUCHER COVERING COMPENSATION FOR PERSONAL SERVICES OF SIX MEMBERS OF THE FEDERAL FARM BOARD, FOR THE PERIOD JULY 15 TO JULY 31, 1929, IT BEING STATED IN CONNECTION THEREWITH THAT A DOUBT EXISTS AS TO THE AUTHORITY TO PAY COMPENSATION TO THE MEMBERS INVOLVED UNTIL THEIR APPOINTMENTS HAVE BEEN CONFIRMED BY THE SENATE.

SECTION 2 OF THE AGRICULTURAL MARKETING ACT OF JUNE 15, 1929, 46 STAT. 11, CREATED A FEDERAL FARM BOARD "WHICH SHALL CONSIST OF EIGHT MEMBERS TO BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND OF THE SECRETARY OF AGRICULTURE, EX OFFICIO.' ON JUNE 19,1929, THE SENATE ADJOURNED UNTIL AUGUST 19, 1929 AND IT APPEARS THAT IT WAS NOT UNTIL SUBSEQUENT TO THE DATE OF ADJOURNMENT THAT THE SIX MEMBERS OF THE BOARD WHOSE NAMES APPEAR ON THE PAY ROLL WERE GIVEN APPOINTMENTS BY THE PRESIDENT TO BE EFFECTIVE JULY 15, 1929.

ARTICLE II, SEC. 2, PARAGRAPH 3, OF THE CONSTITUTION OF THE UNITED STATES, PROVIDES THAT---

THE PRESIDENT SHALL HAVE POWER TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE, BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.

IN CONNECTION WITH THE PAYMENT OF COMPENSATION TO RECESS APPOINTEES IT WAS PROVIDED BY SECTION 1761, REVISED STATUTES, THAT---

NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE.

UNDER THIS SECTION OF THE REVISED STATUTES IT WOULD APPEAR THAT IN THE CASE OF A POSITION REQUIRED BY LAW TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, APPOINTMENTS MADE BY THE PRESIDENT WHILE THE SENATE IS IN RECESS ENTITLES THE INCUMBENT TO COMPENSATION ONLY WHEN THE POSITION BECOMES VACANT DURING SUCH RECESS, AND THAT NO COMPENSATION MAY BE PAID TO THE APPOINTEE UNTIL THE APPOINTMENT HAS BEEN CONFIRMED BY THE SENATE IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION. 7 COMP. GEN. 329; ID. 147. SEE ALSO, 23 OP.ATTY.GEN. 599.

IN THE PRESENT CASE THE OFFICES OR POSITIONS TO WHICH THE MEMBERS OF THE BOARD WERE APPOINTED CAME INTO EXISTENCE UPON THE ENACTMENT OF THE LAW--- THAT IS, JUNE 15, 1929--- AND WERE NOT FILLED PRIOR TO THE ADJOURNMENT OF THE SENATE ON JUNE 19, 1929. HENCE, VACANCIES IN SAID OFFICES OR POSITIONS "EXISTED WHILE THE SENATE WAS IN SESSION," AND AS SAID OFFICES OR POSITIONS ARE REQUIRED BY LAW TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, THE PAYMENT OF COMPENSATION TO THE SIX MEMBERS OF THE BOARD WHOSE NAMES APPEAR ON THE PAY ROLL HERE UNDER CONSIDERATION IS NOT AUTHORIZED UNTIL THE APPOINTEES SHALL HAVE BEEN CONFIRMED BY THE SENATE.