A-37812, AUGUST 1, 1931, 11 COMP. GEN. 41

A-37812: Aug 1, 1931

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CERTIFICATIONS WERE REQUESTED FROM THE CIVIL SERVICE COMMISSION TO FILL POSITIONS AS AGENTS FOR THIS WORK. AMBROSE HOLLAND WAS CERTIFIED BY THE CIVIL SERVICE COMMISSION FOR THE POSITION AS AGENT AT $1. WAS APPOINTED TO SAID POSITION WHICH HE HAS HELD FOR THE PAST MONTH. HOLLAND IS EMPLOYED. HOLLAND IS ALSO A FOURTH-CLASS POSTMASTER IN MINNESOTA. ASKING FOR ADVICE WHETHER OR NOT HIS APPOINTMENT AS AN AGENT WAS PROPER. PENDING A DETERMINATION BY YOU AS TO WHETHER OR NOT HOLDING THE TWO POSITIONS IS IN VIOLATION OF THE ACT OF MAY 10. IS COMPARABLE TO THE REMUNERATION RECEIVED BY CLERKS OF THE UNITED STATES COURTS. YOUR OPINION IS REQUESTED AS TO WHETHER OR NOT MR. HOLLAND'S APPOINTMENT AS AGENT SHOULD BE TERMINATED OR WHETHER HE IS AUTHORIZED TO HOLD THE TWO POSITIONS IN QUESTION AND RECEIVE REMUNERATION FROM BOTH POSITIONS.

A-37812, AUGUST 1, 1931, 11 COMP. GEN. 41

COMPENSATION - DOUBLE - FOURTH-CLASS POSTMASTERS THE AMOUNT OF REMUNERATION PAID TO A FOURTH-CLASS POSTMASTER CONSTITUTES "SALARY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, AND CONSEQUENTLY, ONE PERSON MAY NOT BE PAID SALARY AS A FOURTH-CLASS POSTMASTER AND AS A SEED-LOAN AGENT UNDER THE DEPARTMENT OF AGRICULTURE IF THE COMBINED SALARIES EXCEED THE RATE OF $2,000 PER ANNUM.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, AUGUST 1, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 25, 1931, AS FOLLOWS:

IN CONNECTION WITH THE ADMINISTRATION OF THE SEED LOAN ACT AUTHORIZED BY CONGRESS ON DECEMBER 20, 1930 (PUB. RES. 112), CERTIFICATIONS WERE REQUESTED FROM THE CIVIL SERVICE COMMISSION TO FILL POSITIONS AS AGENTS FOR THIS WORK. MR. AMBROSE HOLLAND WAS CERTIFIED BY THE CIVIL SERVICE COMMISSION FOR THE POSITION AS AGENT AT $1,800.00 PER ANNUM, AND WAS APPOINTED TO SAID POSITION WHICH HE HAS HELD FOR THE PAST MONTH.

THIS OFFICE RECEIVED A TELEGRAM ON JULY 21, 1931, FROM THE ADMINISTRATIVE OFFICER IN CHARGE OF THE GRAND FORKS, NORTH DAKOTA, SEED LOAN OFFICE, IN WHICH MR. HOLLAND IS EMPLOYED, ADVISING US THAT MR. HOLLAND IS ALSO A FOURTH-CLASS POSTMASTER IN MINNESOTA, AND ASKING FOR ADVICE WHETHER OR NOT HIS APPOINTMENT AS AN AGENT WAS PROPER. WE IMMEDIATELY INFORMED THE ADMINISTRATIVE OFFICER IN CHARGE, BY TELEGRAPH, TO FURLOUGH MR. HOLLAND, PENDING A DETERMINATION BY YOU AS TO WHETHER OR NOT HOLDING THE TWO POSITIONS IS IN VIOLATION OF THE ACT OF MAY 10, 1916 (39 STAT. 120 AND 582).

IN VIEW OF THE DECISION IN 27 COMP. DEC. 820, RELATIVE TO COMPENSATION OF CLERKS OF THE UNITED STATES DISTRICT COURTS, HOLDING THAT CLERKS OF THE UNITED STATES COURTS MAY NOT RECEIVE ANY COMPENSATION OR EMOLUMENT EXCEPT THEIR REGULAR SALARY AS CLERKS, AND AS THE COMPENSATION OR REMUNERATION RECEIVED BY POSTMASTERS OF THE FOURTH CLASS, BEING PREDICATED UPON A FEE BASIS, IS COMPARABLE TO THE REMUNERATION RECEIVED BY CLERKS OF THE UNITED STATES COURTS, YOUR OPINION IS REQUESTED AS TO WHETHER OR NOT MR. HOLLAND'S APPOINTMENT AS AGENT SHOULD BE TERMINATED OR WHETHER HE IS AUTHORIZED TO HOLD THE TWO POSITIONS IN QUESTION AND RECEIVE REMUNERATION FROM BOTH POSITIONS.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES IN PART AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY, WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM $2,000 PER ANNUM * * *.

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1054, PROVIDES IN PART AS FOLLOWS:

FOURTH-CLASS.---THE COMPENSATION OF POSTMASTERS OF THE FOURTH CLASS SHALL BE FIXED UPON THE BASIS OF THE WHOLE OF THE BOX RENTS COLLECTED AT THEIR OFFICES AND COMMISSIONS UPON THE AMOUNT OF CANCELED POSTAGE DUE STAMPS AND ON POSTAGE STAMPS, STAMPED ENVELOPES, AND POSTAL CARDS CANCELED, ON MATTER ACTUALLY MAILED AT THEIR OFFICES, AND ON THE AMOUNT OF NEWSPAPER AND PERIODICAL POSTAGE COLLECTED IN MONEY, AND ON THE POSTAGE COLLECTED IN MONEY ON IDENTICAL PIECES OF THIRD AND FOURTH CLASS MATTER MAILED UNDER THE PROVISIONS OF THE ACT OF APRIL 28, 1904, WITHOUT POSTAGE STAMPS AFFIXED, AND ON POSTAGE COLLECTED IN MONEY ON MATTER OF THE FIRST CLASS MAILED UNDER PROVISIONS OF THE ACT OF APRIL 24, 1920 WITHOUT POSTAGE STAMPS AFFIXED, WITHOUT POSTAGE STAMPS AFFIXED, AND ON AMOUNTS RECEIVED FROM WASTE PAPER, DEAD NEWSPAPERS, PRINTED MATTER, AND TWINE SOLD, AT THE FOLLOWING RATES, NAMELY.

UNDER THIS STATUTE, WHILE THE AMOUNT OF REMUNERATION PAID TO FOURTH CLASS POSTMASTERS VARIES DUE TO FLUCTUATION IN RECEIPTS AND THE BUSINESS TRANSACTED, THE PAYMENT TO THE POSTMASTERS FOR THEIR SERVICES CONSTITUTES "SALARY" WITHIN THE MEANING OF THE 1916 STATUTE, AND NOT FEES. SEE DECISIONS OF OCTOBER 26, 1927, A-19125, AND MAY 9, 1931, A-36483.

AS IT IS UNDERSTOOD MR. HOLLAND WOULD RECEIVE AS A FOURTH-CLASS POSTMASTER AND AS AN AGENT UNDER THE DEPARTMENT OF AGRICULTURE COMBINED SALARIES AT A RATE IN EXCESS OF $2,000 PER ANNUM, I HAVE TO ADVISE THAT HE MAY NOT BE PAID FOR BOTH POSITIONS.