A-29202, NOVEMBER 9, 1929, 9 COMP. GEN. 198

A-29202: Nov 9, 1929

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100 PER ANNUM IS THE MAXIMUM SALARY RATE AUTHORIZED FOR CUSTOMS CLERKS IN THE FIELD SERVICE WHO HAVE HAD NOT MORE THAN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE. HIGHER RATES IN ACCORDANCE WITH EXISTING LAW ARE AUTHORIZED UNDER THE TERMS OF SECTION 3 OF THE CUSTOMS CLASSIFICATION ACT OF MAY 29. THIS OFFICE WAS INFORMED BY THE COMMISSIONER OF CUSTOMS THAT "JOHN F. " ON WHICH ROLL HE WAS PAID AT THE RATE OF $1. PAY ROLL HE WAS PAID. CREDIT WAS NOT ALLOWED FOR THE SALARY PAYMENTS MADE TO BURNS IN EXCESS OF THE RATE OF $1. IN THE REQUEST FOR REVIEW IT IS CONTENDED THAT BURNS BECAME LEGALLY ENTITLED TO SALARY AT THE RATE OF $2. AS FOLLOWS: THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED: (C) CLERKS.

A-29202, NOVEMBER 9, 1929, 9 COMP. GEN. 198

COMPENSATION - AUTOMATIC PROMOTION - CUSTOMS SERVICE ON AND AFTER JULY 1, 1928, $2,100 PER ANNUM IS THE MAXIMUM SALARY RATE AUTHORIZED FOR CUSTOMS CLERKS IN THE FIELD SERVICE WHO HAVE HAD NOT MORE THAN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE. HIGHER RATES IN ACCORDANCE WITH EXISTING LAW ARE AUTHORIZED UNDER THE TERMS OF SECTION 3 OF THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, IN CLERICAL POSITIONS ONLY FOR CLERKS HAVING HAD MORE THAN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE, OR IN POSITIONS NOT CLERICAL IN CHARACTER, SUBJECT TO THE USUAL LIMITATIONS AS TO INITIAL SALARIES, FOR CLERKS HAVING HAD ANY NUMBER OF YEARS' SERVICE. (AMPLIFIED BY 9 COMP. GEN. 501.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 9, 1929:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR AUTHORITY, FROM THE ASSISTANT COMMISSIONER OF CUSTOMS, REQUEST DATED OCTOBER 3, 1929, FOR REVIEW OF THE ACTION OF THIS OFFICE IN WITHHOLDING CREDIT IN THE ACCOUNTS OF COLLECTOR OF CUSTOMS CHARLES H. HOLTZMAN, BALTIMORE, MD., FOR PAYMENTS MADE TO CUSTOMS CLERK JOHN F. BURNS, REPRESENTING THE DIFFERENCE IN SALARY BETWEEN THE RATES OF $1,900 AND $2,300 PER ANNUM FOR THE PERIOD MARCH 28 TO 31, 1929.

BY LETTER OF MARCH 5, 1929, THIS OFFICE WAS INFORMED BY THE COMMISSIONER OF CUSTOMS THAT "JOHN F. BURNS AT THE CLOSE OF BUSINESS ON JULY 21, 1928, COMPLETED TWO YEARS OF SATISFACTORY CLERICAL SERVICE, HAVING BEEN APPOINTED IN THE CUSTOMS SERVICE ON JULY 22, 1926.' HIS NAME APPEARS ON THE MARCH 16 TO 31, 1929, PAY ROLL AS A CLERK "NOT GRADED," ON WHICH ROLL HE WAS PAID AT THE RATE OF $1,900 PER ANNUM FOR THE PERIOD MARCH 16 TO 31, 1929. ON THE APRIL 1 TO 15, 1929, PAY ROLL HE WAS PAID, AS A GRADE CAF-6 CLERK, AT THE RATE OF $2,300 PER ANNUM, THE MINIMUM RATE ESTABLISHED FOR THAT GRADE BY THE ACT OF MAY 28, 1928, 45 STAT. 776, KNOWN AS THE WELCH ACT, AMENDING THE ORIGINAL CLASSIFICATION ACT OF 1923, TOGETHER WITH THE DIFFERENCE BETWEEN THE RATES OF $1,900 AND $2,300 PER ANNUM FOR THE PERIOD OF MARCH 28 TO 31, 1929, THE PAY ROLL BEARING THE FOLLOWING NOTATION: "INC. FROM $1900- - 3/28-29. D/L 3/27/29.'

IN THE SETTLEMENT OF COLLECTOR HOLTZMAN'S ACCOUNTS FOR APRIL AND MAY, 1929, CREDIT WAS NOT ALLOWED FOR THE SALARY PAYMENTS MADE TO BURNS IN EXCESS OF THE RATE OF $1,900 PER ANNUM, THE RATE ESTABLISHED BY SECTION 1 OF THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, FOR CLERKS HAVING TWO YEARS' BUT LESS THAN THREE YEARS' SATISFACTORY SERVICE.

IN THE REQUEST FOR REVIEW IT IS CONTENDED THAT BURNS BECAME LEGALLY ENTITLED TO SALARY AT THE RATE OF $2,300 PER ANNUM BY REASON OF HIS PROMOTION ON MARCH 28, 1929, BY ADMINISTRATIVE ACTION, TO AN EXISTING VACANCY IN GRADE CAF-6, UNDER THE PROVISION IN SECTION 3 OF SAID ACT OF MAY 29, 1928, WHICH READS:

NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE PROMOTION OF ANY EMPLOYEE AT ANY TIME TO A VACANT POSITION IN A HIGHER GRADE, AND WHEN SO PROMOTED SUCH EMPLOYEE SHALL RECEIVE THE COMPENSATION FIXED IN ACCORDANCE WITH LAW FOR SUCH POSITION; * * *.

SECTION 1 OF SAID CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, PROVIDES, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED:

(C) CLERKS, ENTRANCE SALARY, $1700; CLERKS HAVING ONE YEAR'S SATISFACTORY SERVICE, $1800; CLERKS HAVING TWO YEARS' SATISFACTORY SERVICE, $1900; CLERKS HAVING THREE YEARS' SATISFACTORY SERVICE, $2000; CLERKS HAVING FOUR YEARS' SATISFACTORY SERVICE, $2,100; THEREAFTER PROMOTION OF CLERKS TO HIGHER RATES OF COMPENSATION SHALL BE IN ACCORDANCE WITH EXISTING LAW.

SAID ACT WAS SPECIFICALLY MADE EFFECTIVE JULY 1, 1928. THE PHRASE "EXISTING LAW," IN THE PROVISION FOR PROMOTION OF CLERKS TO RATES ABOVE $2,100 WOULD INCLUDE SECTION 3 OF THE ACT OF MAY 28, 1928, SUPRA, AUTHORIZING THE HEADS OF THE DEPARTMENTS TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICE, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED THROUGH SUBSEQUENT FISCAL YEARS, TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY SAID ACT OF MAY 28, 1928, FOR POSITIONS IN THE DISTRICT OF COLUMBIA. BUT THE USE OF THE WORD "THEREAFTER" IN THE PROVISION FOR PROMOTION OF CLERKS TO HIGHER RATES PRECLUDES FROM SUCH PROMOTION ANY CLERK WITH LESS THAN FOUR YEARS' SATISFACTORY SERVICE. THEREFORE, ON AND AFTER JULY 1, 1928, $2,100 PER ANNUM IS THE MAXIMUM SALARY RATE AUTHORIZED FOR CUSTOMS CLERKS IN THE FIELD SERVICE WHO HAVE HAD NOT MORE THAN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE, BUT HIGHER RATES ARE AUTHORIZED "IN ACCORDANCE WITH EXISTING LAW," AND WITHIN AVAILABLE APPROPRIATIONS, FOR CLERKS WHO HAVE HAD MORE THAN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE.

SECTION 3 OF THE STATUTE QUOTED ABOVE, ON WHICH THE ASSISTANT COLLECTOR OF CUSTOMS IS BASING HIS REQUEST FOR REMOVAL OF THE DISALLOWANCES IN THE ACCOUNTS OF THE COLLECTOR, IS NOT EFFECTIVE TO AUTHORIZE THE ADMINISTRATIVE OFFICE TO PROMOTE A CLERK HAVING NOT MORE THEN FOUR YEARS' CONTINUOUS SATISFACTORY SERVICE TO RATES OF COMPENSATION IN EXCESS OF$2,100 PER ANNUM WHILE RETAINING THE STATUS OF CLERK. THE SECTION WOULD PERMIT THE PROMOTION OF A CLERK HAVING ANY NUMBER OF YEARS' SERVICE, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION AND SUBJECT TO THE USUAL LIMITATIONS AS TO INITIAL SALARY, TO A VACANT POSITION NOT CLERICAL IN CHARACTER WITH SALARY OF MORE THAN $2,100 PER ANNUM, OR TO PROMOTE A CLERK HAVING MORE THAN FOUR YEARS' SATISFACTORY SERVICE TO A VACANT CLERICAL POSITION WITH SALARY OF MORE THAN $2,100 PER ANNUM. IN OTHER WORDS, SECTIONS 1 AND 3 OF THE STATUTE ARE NOT INCONSISTENT, AND UNDER THE FUNDAMENTAL PRINCIPLE OF STATUTORY CONSTRUCTION THE TWO SECTIONS ARE TO BE CONSTRUED IN CONNECTION WITH EACH OTHER. IT WOULD BE MOST UNREASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED IN SECTION 3 OF THE STATUTE TO PROVIDE A MEANS BY WHICH THE ADMINISTRATIVE OFFICER COULD DISREGARD THE EXPRESS TERMS OF SECTION 1 FIXING A DEFINITE AUTOMATIC INCREASE BASED ON LONGEVITY FOR CLERKS IN THE CUSTOMS SERVICE.

AS CLERK JOHN F. BURNS HAD COMPLETED ONLY TWO YEARS' CONTINUOUS SATISFACTORY SERVICE ON JULY 21, 1928, HIS LEGAL SALARY RATE AFTER THAT DATE TO AND INCLUDING JULY 21, 1929, WAS $1,900 PER ANNUM, AND ON JULY 22, 1929, HIS LEGAL SALARY RATE BECAME $2,000 PER ANNUM. HIS SALARY PAYMENTS MUST BE ADJUSTED ACCORDINGLY. THE ACTION IN THE AUDIT IS SUSTAINED.