A-43760, AUGUST 8, 1932, 12 COMP. GEN. 200

A-43760: Aug 8, 1932

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PAID WHOLLY FROM THE MISCELLANEOUS TRUST FUND DEPOSITS ARE EXEMPTED FROM THE 5-DAY WEEK AND FURLOUGH PROVISIONS OF THE ECONOMY ACT OF JUNE 30. "PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'. OR OTHER PROCEEDING IS BEGUN THE SAID PUBLIC UTILITIES COMMISSION MAY CALL UPON THE UTILITY IN QUESTION FOR THE DEPOSIT OF SUCH REASONABLE SUM OR SUMS AS. IT MAY DEEM NECESSARY FROM TIME TO TIME UNTIL THE SAID PROCEEDING IS COMPLETED. CERTAIN EMPLOYEES OF THE PUBLIC UTILITIES COMMISSION ENGAGED FOR THE PURPOSE OF INVESTIGATING AND REVALUATING PUBLIC UTILITIES OF THE DISTRICT OF COLUMBIA ARE PAID FROM TRUST FUNDS DEPOSITED INTO THE TREASURY TO THE CREDIT OF THE UTILITY INVESTIGATED.

A-43760, AUGUST 8, 1932, 12 COMP. GEN. 200

ECONOMY ACT - EMPLOYEES OF THE DISTRICT OF COLUMBIA NOT PAID FROM FEDERAL TREASURY EMPLOYEES OF THE DISTRICT OF COLUMBIA, PAID WHOLLY FROM THE MISCELLANEOUS TRUST FUND DEPOSITS ARE EXEMPTED FROM THE 5-DAY WEEK AND FURLOUGH PROVISIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AND FROM THE SUSPENSION OF ANNUAL LEAVE WITH PAY.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, AUGUST 8, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 29, 1932, AS FOLLOWS:

THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, PART 2, TITLE I, SECTION 104, PARAGRAPH (A), ITEM 7, NAMES, AMONG OFFICERS AND EMPLOYEES TO WHOM THE PROVISIONS OF TITLE I DOES NOT APPLY,"PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'

PARAGRAPH 42 (A) OF THE ACT OF MARCH 4, 1913 (34 STAT. 974), CREATING THE PUBLIC UTILITIES COMMISSION FOR THE DISTRICT OF COLUMBIA, PROVIDES IN PART:

"THAT THE EXPENSES OF ANY INVESTIGATION, VALUATION, REVALUATION, OR PROCEEDING OF ANY NATURE MADE BY THE PUBLIC UTILITIES COMMISSION OF ANY PUBLIC UTILITY OPERATING IN THE DISTRICT OF COLUMBIA SHALL BE BORNE BY THE PUBLIC UTILITY INVESTIGATED, VALUED, REVALUED, OR OTHERWISE AS A SPECIAL FRANCHISE TAX IN ADDITION TO ALL OTHER TAXES IMPOSED BY LAW, AND SUCH EXPENSES WITH 6 PERCENTUM INTEREST MAY BE CHARGED TO OPERATING EXPENSES AND AMORTIZED OVER SUCH PERIOD AS THE PUBLIC UTILITIES COMMISSION SHALL DEEM PROPER AND BE ALLOWED FOR IN THE RATES TO BE CHARGED BY SUCH UTILITY. WHEN ANY SUCH INVESTIGATION, VALUATION, REVALUATION, OR OTHER PROCEEDING IS BEGUN THE SAID PUBLIC UTILITIES COMMISSION MAY CALL UPON THE UTILITY IN QUESTION FOR THE DEPOSIT OF SUCH REASONABLE SUM OR SUMS AS, IN THE OPINION OF SAID COMMISSION, IT MAY DEEM NECESSARY FROM TIME TO TIME UNTIL THE SAID PROCEEDING IS COMPLETED, THE MONEY SO PAID TO BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION ACCOUNT KNOWN AS "MISCELLANEOUS TRUST FUND DEPOSIT, DISTRICT OF COLUMBIA," AND TO BE DISBURSED IN THE MANNER PROVIDED FOR BY LAW FOR OTHER EXPENDITURES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, FOR SUCH PURPOSES AS MAY BE APPROVED BY THE PUBLIC UTILITIES COMMISSION. ANY UNEXPENDED BALANCE OF SUCH SUM OR SUMS SO DEPOSITED SHALL BE RETURNED TO THE UTILITY DEPOSITING THE SAME: * * *.'

CERTAIN EMPLOYEES OF THE PUBLIC UTILITIES COMMISSION ENGAGED FOR THE PURPOSE OF INVESTIGATING AND REVALUATING PUBLIC UTILITIES OF THE DISTRICT OF COLUMBIA ARE PAID FROM TRUST FUNDS DEPOSITED INTO THE TREASURY TO THE CREDIT OF THE UTILITY INVESTIGATED, AND THEREFORE ARE NOT PAID FROM THE FEDERAL TREASURY.

SECTION 3 OF THE ACT OF JUNE 24, 1898 (30 STAT. 489), PROVIDES:

"THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE HEREBY AUTHORIZED AND REQUIRED TO STATION SPECIAL POLICEMEN AT SUCH STREET RAILWAY CROSSINGS AND INTERSECTIONS IN THE CITY OF WASHINGTON AS THE SAID COMMISSIONERS MAY DEEM NECESSARY, THE EXPENSE OF SUCH SERVICE TO BE PAID PRO RATA BY THE RESPECTIVE COMPANIES; EVERY CAR SHALL BE BROUGHT TO A FULL STOP IMMEDIATELY BEFORE MAKING SUCH CROSSING OR INTERSECTION. NEGLECT OR FAILURE TO PAY FOR THE SERVICE MONTHLY, OR TO STOP ANY CAR, AS HEREIN PROVIDED FOR SHALL SUBJECT THE COMPANY TO A FINE OF NOT TO EXCEED TWENTY- FIVE DOLLARS FOR EVERY SUCH NEGLECT OR FAILURE, TO BE RECOVERED IN ANY COURT OF COMPETENT JURISDICTION.'

THE PROCEEDS OF THESE FUNDS ARE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION "MISCELLANEOUS TRUST FUND DEPOSITS, D.C., " AND THESE CROSSING POLICEMEN ARE PAID FROM THAT FUND. THESE POLICEMEN ENJOY THE SAME LEAVE AND RETIREMENT PRIVILEGES EXTENDED TO OTHER MEMBERS OF THE METROPOLITAN POLICE, THE SOLE DIFFERENCE BEING THE SOURCE OF COMPENSATION. THEIR EXEMPTION FROM THE PROVISIONS OF SECTION 105 (D) OF THE ECONOMY ACT WOULD THEREFORE BE DISCRIMINATORY.

SECTION 4 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1933, APPROVED JUNE 29, 1932, PROVIDES:

"THAT THE COMMISSIONERS ARE AUTHORIZED TO EMPLOY IN THE EXECUTION OF WORK, THE COST OF WHICH IS PAYABLE FROM THE APPROPRIATION ACCOUNT CREATED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED APRIL 27, 1904, AND KNOWN AS THE MISCELLANEOUS TRUST-FUND DEPOSITS, DISTRICT OF COLUMBIA, NECESSARY PERSONAL SERVICES, HORSES, CARTS, AND WAGONS, AND TO HIRE THEREFOR MOTOR TRUCKS WHEN SPECIFICALLY AND IN WRITING AUTHORIZED BY THE COMMISSIONERS, AND TO INCUR ALL NECESSARY EXPENSES INCIDENTAL TO CARRYING ON SUCH WORK AND NECESSARY FOR THE PROPER EXECUTION THEREOF, INCLUDING THE PURCHASE, EXCHANGE, MAINTENANCE, AND OPERATION OF MOTOR VEHICLES FOR INSPECTION AND TRANSPORTATION PURPOSES, SUCH SERVICES AND EXPENSES TO BE PAID FROM SAID APPROPRIATION ACCOUNT: PROVIDED, THAT THE COMMISSIONERS MAY DELEGATE TO THEIR DULY AUTHORIZED REPRESENTATIVES THE EMPLOYMENT UNDER THIS SECTION OF LABORERS, MECHANICS, AND ARTISANS.'

THE PERMANENT APPROPRIATION "MISCELLANEOUS TRUST-FUND DEPOSITS, D.C.' WAS CREATED BY THE ACT OF APRIL 27, 1904 (33 STAT. 368), AND PROVIDES:

"THAT HEREAFTER ALL MONEYS RECEIVED BY THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA IN THE NATURE OF TRUST-FUND DEPOSITS, THE DISPOSITION OF WHICH IS NOT PROVIDED FOR BY LAW, AND WHICH HAVE BEEN AND NOW ARE DEPOSITED BY SAID COLLECTOR WITH THE TREASURER OF THE UNITED STATES TO THE OFFICIAL CREDIT OF THE DISBURSING OFFICER OF THE DISTRICT OF COLUMBIA, SHALL BE DEPOSITED BY THE SAID COLLECTOR IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF A PERMANENT APPROPRIATION ACCOUNT, TO BE KNOWN AND DESIGNATED AS "MISCELLANEOUS TRUST-FUND DEPOSITS, DISTRICT OF COLUMBIA," AND THE BALANCES NOW STANDING TO THE OFFICIAL CREDIT OF SAID DISBURSING OFFICER WITH THE TREASURER OF THE UNITED STATES ON ACCOUNT OF SUCH TRUST- FUND DEPOSITS, KNOWN AS THE "WHOLE COST DEPOSIT FUND, DISTRICT OF COLUMBIA," OR OTHERWISE, SHALL BE WITHDRAWN AND DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF SAID PERMANENT APPROPRIATION ACCOUNT DENOMINATED "MISCELLANEOUS TRUST-FUND DEPOSITS, DISTRICT OF COLUMBIA.'"

THERE ARE OTHER OFFICIALS AND EMPLOYEES OF THE DISTRICT OF COLUMBIA NOT PAID FROM APPROPRIATED FUNDS, BUT WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS AND SPECIAL DEPOSITS MADE FROM PRIVATE FUNDS, DEPOSITED INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE ACCOUNT ,MISCELLANEOUS TRUST-FUND DEPOSITS, D.C.'

IN YOUR DECISION OF JULY 16, 1932, TO THE SECRETARY OF THE TREASURY YOU HELD THAT THERE IS NOTHING UNDER TITLE I, PART 2, OF THE ACT OF JUNE 30, 1932, TO INDICATE ANY INTENTION TO REDUCE COMPENSATION OTHER THAN FOR THE PURPOSE OF EFFECTING SUCH SAVINGS. HENCE, THE TERM "OFFICERS AND EMPLOYEES" IS THEREIN DEFINED AS NOT INCLUDING PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS NOT PAID FROM THE FEDERAL TREASURY, THERE BEING NO INTENT OR PURPOSE TO EFFECT, AT THE EXPENSE OF THE GOVERNMENT EMPLOYEES, A SAVING TO PRIVATE INTERESTS. THEREFORE IN APPLYING THE PROVISIONS OF SAID TITLE, SALARIES ARE NOT TO BE CONSIDERED AS PAID FROM THE FEDERAL TREASURY IF FOR AN ACCOUNTING OR BOOKKEEPING PURPOSE THE FUNDS ARE PASSED THROUGH THE TREASURY SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE UNITED STATES TREASURY.

IN YOUR DECISION OF JULY 21, 1932, TO THE SECRETARY OF THE TREASURY, YOU HELD "THE FACT THAT THE EMPLOYEES OF THE NATIONAL BANK REDEMPTION AGENCIES OF THE OFFICE OF THE TREASURER OF THE UNITED STATES AND THE EMPLOYEES OF THE REDEMPTION DIVISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY ARE PAID AND COMPENSATED FROM APPROPRIATED FUNDS DOES NOT RENDER THEM ANY THE LESS EMPLOYEES "WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY" IF, AS STATED BY YOU, THE ENTIRE AMOUNT OF THEIR COMPENSATION IS ASSESSED AGAINST AND COLLECTED FROM THE BANK OR BANKING ASSOCIATIONS NOT SUPPORTED FROM APPROPRIATED NDS.'

YOU ARE REQUESTED TO ADVISE THE COMMISSIONERS AT YOUR EARLIEST CONVENIENCE WHETHER OR NOT OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS PAID FROM MISCELLANEOUS TRUST FUNDS DEPOSITED IN THE UNITED STATES TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA IN THE ACCOUNT "MISCELLANEOUS TRUST-FUND DEPOSITS, D.C., " ARE SUBJECT TO THE PROVISIONS OF TITLE I, PART 2, OF THE ECONOMY ACT. AND IF YOU HOLD THAT THESE EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF TITLE I, PART 2, OF THE ECONOMY ACT, WHETHER THE SAVINGS EFFECTED BY OPERATION OF THE ECONOMY ACT ARE TO BE IMPOUNDED TO THE CREDIT OF THE GENERAL FUND AS REVENUES OF THE DISTRICT OF COLUMBIA OR RETURNED TO THE DEPOSITOR.

IF THE VARIOUS GROUPS OF EMPLOYEES NAMED IN YOUR SUBMISSION ARE ENGAGED EXCLUSIVELY ON WORK PROVIDED FOR UNDER THE MISCELLANEOUS TRUST FUND DEPOSITS AND ARE PAID ENTIRELY FROM THOSE DEPOSITS, THEY ARE NOT PAID FROM THE FUNDS APPROPRIATED FROM THE GENERAL FUND OF THE TREASURY, AND ARE SPECIFICALLY EXCEPTED FROM THE DEFINITION OF "OFFICER"AND "EMPLOYEE" IN SECTION 104 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 400, AND, THEREFORE, EXEMPTED FROM ALL THE RESTRICTIONS OF TITLE I OF THE ECONOMY ACT IN WHICH THE TERMS "OFFICER" AND "EMPLOYEE" ARE USED, THAT IS, WHERE THE RESTRICTION IS LIMITED TO OFFICERS AND EMPLOYEES, INCLUDING FURLOUGH PROVISIONS AND THE SUSPENSION OF ANNUAL LEAVE WITH PAY.

IT IS RECOGNIZED THAT THE OPERATION OF SOME OF THE PROVISIONS OF THE ECONOMY ACT AS APPLIED UNDER THIS AND OTHER DECISIONS OF THIS OFFICE, WILL RESULT IN SOME INEQUALITIES BUT THIS CAN NOT BE AVOIDED WITHOUT DOING VIOLENCE TO ESTABLISHED RULES FOR THE CONSTRUCTION OF STATUTES AND TO CANONS OF INTERPRETATION.