A-32795, SEPTEMBER 16, 1930, 10 COMP. GEN. 126

A-32795: Sep 16, 1930

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AS THEY ARE NOT EMPLOYEES OF AN EXECUTIVE DEPARTMENT. 1930: THERE IS FOR CONSIDERATION THE CLAIM OF DAVID W. WHICH WAS ADMINISTRATIVELY DISAPPROVED BY THE DEPARTMENT OF JUSTICE WITH THE FOLLOWING NOTATION: ALL FEES DEDUCTED IN ACCORDANCE WITH PARAGRAPH 1506 OF INSTRUCTIONS. IT NOW APPEARS THAT THE APPOINTMENT AS CENSUS SUPERVISOR WAS EFFECTIVE AUGUST 10. PROVIDES "THAT NO * * * CIVIL OR MILITARY EMPLOYEE OF THE GOVERNMENT * * * SHALL HAVE. THAT THE HOLDING OF THE TWO OFFICES OR POSITIONS IS AUTHORIZED BY THE PROVISION IN THE ACT OF JUNE 18. - AND PROVIDED THE CONSENT OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT IS GIVEN. THAT THIS PARTICULAR PROVISION OF THE CENSUS ACT WAS NOT INTENDED TO APPLY TO ALL EMPLOYEES AND OFFICERS OF THE FEDERAL GOVERNMENT IS EVIDENCED BY THE SENTENCE IMMEDIATELY PRECEDING THE QUOTED PORTION AND WHICH AUTHORIZES THE EMPLOYMENT OF ENLISTED MEN AND OFFICERS OF THE ARMY AND NAVY AS ENUMERATORS FOR THEIR PARTICULAR MILITARY OR NAVAL POSTS.

A-32795, SEPTEMBER 16, 1930, 10 COMP. GEN. 126

COMPENSATION - DOUBLE - UNITED STATES COMMISSIONERS THE PROVISION IN THE ACT OF JUNE 18, 1929, 46 STAT. 21, PERMITTING EMPLOYEES OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS, WITH THE CONSENT OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, TO BE EMPLOYED AND COMPENSATED FOR FIELD WORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS, DOES NOT APPLY TO UNITED STATES COMMISSIONERS, AS THEY ARE NOT EMPLOYEES OF AN EXECUTIVE DEPARTMENT; NOR DOES SUCH PROVISION OVERCOME THE PROHIBITION IN SECTION 20 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, AGAINST A CIVILIAN EMPLOYEE HOLDING OFFICE AS A UNITED STATES COMMISSIONER.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 16, 1930:

THERE IS FOR CONSIDERATION THE CLAIM OF DAVID W. PETERS FOR $227.70 AS FEES FOR SERVICES AS A UNITED STATES COMMISSIONER FOR THE QUARTER ENDED MAY 31, 1930, WHICH WAS ADMINISTRATIVELY DISAPPROVED BY THE DEPARTMENT OF JUSTICE WITH THE FOLLOWING NOTATION:

ALL FEES DEDUCTED IN ACCORDANCE WITH PARAGRAPH 1506 OF INSTRUCTIONS. COMMISSIONER APPOINTED AND ACTED IN CAPACITY OF CENSUS SUPERVISOR IN THE WESTERN DISTRICT OF MISSOURI, WHICH AUTOMATICALLY MARKED A VACATION OF HIS OFFICE AS U.S. COMMISSIONER.

IT NOW APPEARS THAT THE APPOINTMENT AS CENSUS SUPERVISOR WAS EFFECTIVE AUGUST 10, 1929, WHILE THE APPOINTMENT AS UNITED STATES COMMISSIONER DID NOT PURPORT TO BECOME EFFECTIVE UNTIL OCTOBER 1, 1929. SECTION 20 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, PROVIDES "THAT NO * * * CIVIL OR MILITARY EMPLOYEE OF THE GOVERNMENT * * * SHALL HAVE, HOLD, OR EXERCISE THE DUTIES OF THE UNITED STATES COMMISSIONER.' MR. PETERS CONTENDS, HOWEVER, THAT THE HOLDING OF THE TWO OFFICES OR POSITIONS IS AUTHORIZED BY THE PROVISION IN THE ACT OF JUNE 18, 1929, 46 STAT. 21, PROVIDING FOR THE FIFTEENTH DECENNIAL CENSUS, AS FOLLOWS:

* * * EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER DEPARTMENTS AND INDEPENDENT OFFICES OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF THE RESPECTIVE DEPARTMENT OR OFFICE BE EMPLOYED AND COMPENSATED FOR FIELD WORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS. * * *

THE FOREGOING PROVISION OF THE CENSUS ACT REMOVES, AS TO THE PARTICULAR EMPLOYEES TO WHICH IT APPLIES--- AND PROVIDED THE CONSENT OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT IS GIVEN--- THE GENERAL STATUTORY RESTRICTIONS AS TO THE RECEIPT OF ADDITIONAL OR DOUBLE COMPENSATION SUCH AS SECTION 1765, REVISED STATUTES, AND THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582. THAT THIS PARTICULAR PROVISION OF THE CENSUS ACT WAS NOT INTENDED TO APPLY TO ALL EMPLOYEES AND OFFICERS OF THE FEDERAL GOVERNMENT IS EVIDENCED BY THE SENTENCE IMMEDIATELY PRECEDING THE QUOTED PORTION AND WHICH AUTHORIZES THE EMPLOYMENT OF ENLISTED MEN AND OFFICERS OF THE ARMY AND NAVY AS ENUMERATORS FOR THEIR PARTICULAR MILITARY OR NAVAL POSTS. UNITED STATES COMMISSIONERS ARE APPOINTED BY THE UNITED STATES DISTRICT COURT FOR 4-YEAR TERMS AND ARE SUBJECT TO REMOVAL BY THE COURT. ACT OF MAY 28, 1896, 29 STAT. 184. THEY ARE NOT EMPLOYEES OF ANY EXECUTIVE DEPARTMENT WITHIN THE MEANING OF THE ABOVE QUOTED PROVISION OF THE CENSUS ACT AND SAID PROVISION DOES NOT, THEREFORE, REMOVE THE RESTRICTIONS IN THE ACT OF 1896, SUPRA, AGAINST CIVILIAN OR MILITARY EMPLOYEES HOLDING OFFICE AS UNITED STATES COMMISSIONERS. IN RESPONSE TO A REQUEST OF AUGUST 14, 1930, THE ATTORNEY GENERAL, UNDER DATE OF AUGUST 21, 1930, ADVISED THIS OFFICE AS FOLLOWS:

REPLY IS MADE TO YOUR LETTER OF AUGUST 14TH, FILE A-32795, REQUESTING MY VIEWS CONCERNING CERTAIN QUESTIONS INVOLVED IN THE AUDIT OF THE ACCOUNT OF D. W. PETERS AS UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF MISSOURI. YOU REQUEST PARTICULARLY MY CONSIDERATION OF THE QUESTION WHETHER THE APPOINTMENT OF MR. PETERS AS COMMISSIONER VACATED HIS APPOINTMENT AS CENSUS SUPERVISOR, IN VIEW OF A GENERAL RULE OF LAW THAT AN OFFICER WHO ACCEPTS ANY APPOINTMENT INCONSISTENT WITH HIS FIRST OFFICE IS HELD THEREBY TO HAVE VACATED THE FIRST OFFICE.

IT WOULD APPEAR THAT SUCH GENERAL RULE OF LAW WOULD HAVE NO APPLICATION IN THE FACE OF THE EXPRESS PROHIBITION CONTAINED IN SECTION 20 OF THE ACT OF MAY 28, 1896, FROM WHICH YOU QUOTED IN YOUR LETTER AS FOLLOWS:

"THAT NO * * * CIVIL OR MILITARY EMPLOYEE OF THE GOVERNMENT * * * SHALL HAVE, HOLD, OR EXERCISE THE DUTIES OF THE UNITED STATES COMMISSIONER.'

MR. PETERS HELD THE POSITION OF CENSUS SUPERVISOR AT THE TIME OF HIS APPOINTMENT AS UNITED STATES COMMISSIONER AND CONTINUED THEREAFTER TO PERFORM THE DUTIES OF SUPERVISOR UNTIL THE COMPLETION OF THE ENUMERATION. THE ABOVE QUOTED PROHIBITION WOULD SEEM TO HAVE PREVENTED HIM FROM BECOMING A UNITED STATES COMMISSIONER.

THE ATTORNEY GENERAL HAVING DETERMINED THAT THE APPOINTMENT OF MR. PETERS AS UNITED STATES COMMISSIONER DID NOT BECOME EFFECTIVE IN VIEW OF THE FACT THAT HE HELD A CIVIL POSITION AT THAT TIME, THE CLAIM FOR FEES FOR SERVICES AS A COMMISSIONER MUST BE AND IS DISALLOWED IN ITS ENTIRETY.