A-3105, JULY 19, 1924, 4 COMP. GEN. 84

A-3105: Jul 19, 1924

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IS SEPARATE AND DISTINCT FROM THAT OF SPECIAL-DELIVERY MESSENGER IN THE POSTAL SERVICE. THE HOLDING OF BOTH POSITIONS IS NOT BARRED BY SECTION 1765. IS ALSO EMPLOYED BY THE POSTMASTER AT KEOKUK AND PAID FEES FOR THE DELIVERY OF SPECIAL-DELIVERY LETTERS AND PACKAGES. YOU REQUEST DECISION WHETHER SUCH DUAL EMPLOYMENT IS IN VIOLATION OF ANY OF THE STATUTES RELATIVE TO DOUBLE COMPENSATION. IT IS UNDERSTOOD THAT THE PAY OF LABORERS IN THE CUSTODIAN SERVICE IS FIXED BY DEPARTMENTAL PRACTICE WITHIN CERTAIN LIMITS. DEPENDING UPON THE SIZE OF THE BUILDING IN WHICH THEY ARE EMPLOYED. WHILE THE RATES OF PAY ARE NOT SET OUT IN PUBLISHED REGULATIONS. IT MAY PROPERLY BE SAID THAT THE PAY OF LABORERS IN THE CUSTODIAN SERVICE IS FIXED BY REGULATION.

A-3105, JULY 19, 1924, 4 COMP. GEN. 84

DOUBLE COMPENSATION - LABORER AND SPECIAL-DELIVERY MESSENGER THE POSITION OF LABORER IN THE CUSTODIAN SERVICE, TREASURY DEPARTMENT, WITH COMPENSATION FIXED BY LONG-ESTABLISHED PRACTICE, HAVING THE FORCE OF A REGULATION, ALTHOUGH NOT PUBLISHED AS SUCH, IS SEPARATE AND DISTINCT FROM THAT OF SPECIAL-DELIVERY MESSENGER IN THE POSTAL SERVICE, THE FEES PAYABLE FOR SPECIAL DELIVERY BEING ALSO FIXED BY REGULATION, THE HOLDING OF BOTH POSITIONS IS NOT BARRED BY SECTION 1765, REVISED STATUTES, NOR BY THE ACT OF MAY 10, 1916, 39 STAT. 120, FEES FOR SPECIAL-DELIVERY SERVICE NOT BEING SALARY WITHIN THE MEANING OF THE LATTER ACT.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE TREASURY, JULY 19, 1924:

I RECEIVED ON MAY 29, 1924, YOUR LETTER OF MAY 23, 1924, STATING THAT HIRAM G. STEBBINS, LABORER IN THE CUSTODIAN SERVICE AT KEOKUK, IOWA, IS ALSO EMPLOYED BY THE POSTMASTER AT KEOKUK AND PAID FEES FOR THE DELIVERY OF SPECIAL-DELIVERY LETTERS AND PACKAGES, SUCH WORK BEING DONE OUTSIDE THE REGULAR HOURS OF SERVICES AS A LABORER. YOU REQUEST DECISION WHETHER SUCH DUAL EMPLOYMENT IS IN VIOLATION OF ANY OF THE STATUTES RELATIVE TO DOUBLE COMPENSATION, ETC.

IT IS UNDERSTOOD THAT THE PAY OF LABORERS IN THE CUSTODIAN SERVICE IS FIXED BY DEPARTMENTAL PRACTICE WITHIN CERTAIN LIMITS, DEPENDING UPON THE SIZE OF THE BUILDING IN WHICH THEY ARE EMPLOYED. WHILE THE RATES OF PAY ARE NOT SET OUT IN PUBLISHED REGULATIONS, YET THE LONG CONTINUED PRACTICE HAS THE FORCE OF A REGULATION, AND IT MAY PROPERLY BE SAID THAT THE PAY OF LABORERS IN THE CUSTODIAN SERVICE IS FIXED BY REGULATION. THE PAY OF MESSENGERS FOR DELIVERY OF SPECIAL-DELIVERY MAIL IS FIXED BY SECTION 868 OF THE POSTAL LAWS AND REGULATIONS AT NOT TO EXCEED 8 CENTS FOR EACH PIECE DELIVERED OR ATTEMPTED TO BE DELIVERED.

UNDER THE DECISION IN THE CASE OF SAUNDERS V. UNITED STATES, 120 U.S. 126, SECTIONS 1764 AND 1765, REVISED STATUTES, DO NOT PROHIBIT PAYMENT OF COMPENSATION TO ONE PERSON FOR SERVICES PERFORMED IN TWO DISTINCT COMPATIBLE EMPLOYMENTS THE PAY OF EACH OF WHICH IS FIXED BY LAW OR REGULATION. THE TWO EMPLOYMENTS HERE UNDER CONSIDERATION ARE DISTINCT AND THE PAY OF EACH IS FIXED BY REGULATION.

THE COMPENSATION FOR THE SERVICE IN DELIVERY OF SPECIAL DELIVERY MAIL IS IN THE NATURE OF A FEE, BEING A CERTAIN AMOUNT FOR EACH DELIVERY. IT HAS BEEN HELD THAT FEES ARE NOT SALARY WITHIN THE MEANING OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, WHICH PROHIBITS PAYMENTS TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHERE THE COMBINED AMOUNT OF SUCH SALARIES EXCEEDS THE RATE OF $2,000 PER ANNUM. SEE 2 COMP. GEN. 37.

YOU ARE ADVISED THAT THERE APPEARS TO BE NO LEGAL OBJECTION TO THE STATED ARRANGEMENT UNDER WHICH A LABORER IN THE CUSTODIAN SERVICE IS EMPLOYED, OUTSIDE OF HIS REGULAR WORKING HOURS AS SUCH, TO DELIVER SPECIAL DELIVERY MAIL ON A FEE BASIS AT THE RATE FIXED IN THE POSTAL LAWS AND REGULATIONS, IT BEING UNDERSTOOD THAT SUCH EMPLOYMENT DOES NOT INTERFERE WITH THE PERFORMANCE OF THE FULL NUMBER OF HOURS OF SERVICE REQUIRED UNDER THE POSITION AS LABORER.