A-44527, OCTOBER 7, 1932, 12 COMP. GEN. 393

A-44527: Oct 7, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THERE IS NO LEGAL AUTHORITY TO PAY THE ADMINISTRATORS OF THE ESTATE OF SAID DECEASED CLERK OF COURT ANY SALARY ASSERTED TO HAVE ACCRUED TO HIS ESTATE AFTER THE DATE OF HIS DEATH. BY WHICH WAS DISALLOWED THE CLAIM OF SAID ADMINISTRATORS FOR THE SUM OF $1. SAID ITEM OF THE ADMINISTRATORS' CLAIM WAS DISALLOWED FOR THE REASON. THE CLAIMANTS STATE: EXCEPTION IS TAKEN TO THE RULING OF YOUR OFFICE THAT "COMPENSATION FOR PERSONAL SERVICES CEASES AT THE DEATH OF THE PERSON RENDERING SUCH SERVICES.'. THE SERVICES IN THIS CASE WERE NOT PERSONAL TO MR. SERVICES FOR WHICH COMPENSATION IS SOUGHT WERE RENDERED BY THE ESTATE FROM JANUARY 18. BRADY'S ESTATE WAS LIABLE FOR THE PROPER CONDUCT OF HIS OFFICE UNDER A DUTY TO THE GOVERNMENT TO SEE THAT THE AFFAIRS OF THE OFFICE WERE PROPERLY CARRIED FORWARD WITH A CORRESPONDING RIGHT OF COMPENSATION FOR THE PERFORMANCE OF THESE DUTIES AND THE ASSUMPTION OF LIABILITY THEREFOR.

A-44527, OCTOBER 7, 1932, 12 COMP. GEN. 393

COMPENSATION AFTER DEATH - CLERK OF DISTRICT COURT WHERE A CLERK OF A UNITED STATES DISTRICT COURT DIED AND THE OFFICE REMAINED VACANT FROM JANUARY 19 TO APRIL 1, WHEN HIS SUCCESSOR ASSUMED THE DUTIES OF THE OFFICER, THERE IS NO LEGAL AUTHORITY TO PAY THE ADMINISTRATORS OF THE ESTATE OF SAID DECEASED CLERK OF COURT ANY SALARY ASSERTED TO HAVE ACCRUED TO HIS ESTATE AFTER THE DATE OF HIS DEATH, INASMUCH AS SAID DECEASED OFFICER'S RIGHT TO THE SALARY OF THE OFFICE CEASED WHEN HE DIED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 7, 1932:

THE STATE-PLANTERS BANK AND TRUST COMPANY AND JAMES D. BRADY, ADMINISTRATORS OF THE ESTATE OF JOSEPH P. BRADY, DECEASED, APPLIED AUGUST 27, 1932, FOR REVIEW OF SETTLEMENT NO. 0280968, DATED JULY 1, 1932, BY WHICH WAS DISALLOWED THE CLAIM OF SAID ADMINISTRATORS FOR THE SUM OF $1,160 ASSERTED TO BE DUE SAID DECEDENT, JOSEPH P. BRADY, AS SALARY FOR SERVICES AS CLERK OF THE UNITED STATES DISTRICT COURT, IN THE EASTERN DISTRICT OF VIRGINIA, FOR THE PERIOD FROM JANUARY 19 TO MARCH 31, 1931, BOTH DATES INCLUSIVE.

SAID ITEM OF THE ADMINISTRATORS' CLAIM WAS DISALLOWED FOR THE REASON, THAT THE RIGHT TO SALARY FOR PERSONAL SERVICES CEASES ON THE DEATH OF THE PERSON RENDERING SUCH SERVICES.

IN THEIR REQUEST FOR REVIEW OF THE MATTER, THE CLAIMANTS STATE:

EXCEPTION IS TAKEN TO THE RULING OF YOUR OFFICE THAT "COMPENSATION FOR PERSONAL SERVICES CEASES AT THE DEATH OF THE PERSON RENDERING SUCH SERVICES.' THE SERVICES IN THIS CASE WERE NOT PERSONAL TO MR. BRADY, BUT FOLLOWED TO HIS ESTATE BY VIRTUE OF HIS OFFICE AND OF A BOND WHICH HE HAD ENTERED INTO FOR THE PROPER CONDUCT OF HIS OFFICE BY DEPUTIES UNTIL THE APPOINTMENT AND QUALIFICATION OF HIS SUCCESSOR.

SERVICES FOR WHICH COMPENSATION IS SOUGHT WERE RENDERED BY THE ESTATE FROM JANUARY 18, 1931, DATE OF HIS DECEASE, TO APRIL 1ST, 1931, THE DATE OF THE QUALIFICATION OF HIS SUCCESSOR. DURING THIS PERIOD MR. BRADY'S ESTATE WAS LIABLE FOR THE PROPER CONDUCT OF HIS OFFICE UNDER A DUTY TO THE GOVERNMENT TO SEE THAT THE AFFAIRS OF THE OFFICE WERE PROPERLY CARRIED FORWARD WITH A CORRESPONDING RIGHT OF COMPENSATION FOR THE PERFORMANCE OF THESE DUTIES AND THE ASSUMPTION OF LIABILITY THEREFOR.

IT APPEARS THAT JOSEPH P. BRADY, AT THE TIME OF HIS DEATH ON JANUARY 18, 1931, WAS THE DULY APPOINTED AND QUALIFIED CLERK OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA; AND THAT THE SUCCESSOR TO THE DECEASED CLERK OF SAID COURT SUBSEQUENTLY WAS APPOINTED AND QUALIFIED ON APRIL 1, 1931. THE ADMINISTRATORS OF THE ESTATE OF THE DECEASED CLERK OF SAID COURT HAVE PRESENTED A CLAIM FOR $1,160, REPRESENTING THE SALARY ASSERTED TO BE DUE FOR SERVICES RENDERED, AS REPRESENTATIVES OF THE DECEDENT, IN PERFORMANCE OF THE DUTIES OF THE OFFICE OF THE CLERK OF SAID DISTRICT COURT OF THE UNITED STATES DURING THE PERIOD BEGINNING JANUARY 19 AND ENDING MARCH 31, 1931.

THE ACT OF MARCH 3, 1911, 36 STAT. 1087 (TITLE 28, SEC. 8, UNITED STATES CODE), RELATING TO DISTRICT COURTS OF THE UNITED STATES, PROVIDES:

* * * IN CASE OF THE DEATH OF THE CLERK, HIS DEPUTY OR DEPUTIES SHALL, UNLESS REMOVED, CONTINUE IN OFFICE AND PERFORM DUTIES OF THE CLERK, IN HIS NAME, UNTIL A CLERK IS APPOINTED AND QUALIFIED; AND FOR THE DEFAULT OR MISFEASANCES IN OFFICE OF ANY SUCH DEPUTY, WHETHER IN THE LIFETIME OF THE CLERK OR AFTER HIS DEATH, THE CLERK AND HIS ESTATE AND THE SURETIES ON HIS OFFICIAL BOND SHALL BE LIABLE; AND HIS EXECUTOR OR ADMINISTRATOR SHALL HAVE SUCH REMEDY FOR ANY SUCH DEFAULT OR MISFEASANCES COMMITTED AFTER HIS DEATH AS THE CLERK WOULD BE ENTITLED TO IF THE SAME HAD OCCURRED IN HIS LIFETIME.

THE CONTENTION OF CLAIMANTS WOULD APPEAR TO BE THAT THE ESTATE OF THE DECEASED CLERK OF SAID COURT IS ENTITLED TO BE PAID THE SALARY OR COMPENSATION THAT SUCH CLERK WOULD HAVE BEEN ENTITLED TO, HAD HE LIVED, DURING THE PERIOD INTERVENING BETWEEN THE DATE OF HIS DEATH AND THE DATE HIS SUCCESSOR ASSUMED THE DUTIES OF SAID OFFICE, INASMUCH AS THE ESTATE WAS LIABLE UNDER ABOVE-QUOTED ACT FOR THE PROPER CONDUCT OF THE OFFICE DURING SUCH PERIOD.

A CLERK OF A COURT IS ENTITLED TO SUCH COMPENSATION ONLY AS IS SPECIFICALLY PROVIDED FOR BY STATUTE. THORNTON V. INSURANCE COS., 125 FED.REP. 250; UNITED STATES V. MARSH, 106 FED.REP. 474, 477; AND 11 CORPUS JURIS 862. THE FEES TO BE CHARGED AND COLLECTED BY CLERKS OF THE UNITED STATES DISTRICT COURTS FOR SERVICES PERFORMED BY THEM OR THEIR ASSISTANTS ARE PROVIDED FOR BY SECTION 823, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 11, 1925, 43 STAT. 867 (TITLE 28, SECTION 548, UNITED STATES CODE). UNDER EXISTING STATUTES THE FEES AND EMOLUMENTS OF THE OFFICE OF THE CLERK OF THE UNITED STATES DISTRICT COURT BELONG TO THE GOVERNMENT, SUBJECT ONLY TO THE PAYMENT OF THE ANNUAL SALARY OF THE CLERK, HIS DEPUTIES AND ASSISTANTS, NECESSARY CLERK HIRE, AND INCIDENTAL EXPENSES; AND THE CLERK OF THE COURT IS THE COLLECTING AGENCY FOR THE GOVERNMENT. SEE BEAN, ETC. V. PATTERSON, ETC., 110 U.S. 401, 403. THE ACT OF FEBRUARY 26, 1919, 40 STAT. 1182, AS AMENDED BY THE ACTS OF FEBRUARY 11, 1921, 41 STAT. 1099, AND OF MARCH 4, 1921, 41 STAT. 1412 (TITLE 28, SECTIONS 557 TO 564, UNITED STATES CODE),AUTHORIZED THE ATTORNEY GENERAL TO FIX THE SALARIES OF THE CLERKS OF THE VARIOUS UNITED STATES DISTRICT COURTS ON THE BASIS OF THE VOLUME OF BUSINESS TRANSACTED AND THE AMOUNTS OF FEES AND EMOLUMENTS RECEIVED, AND DIRECTED THAT ALL FEES COLLECTED BY SUCH CLERKS BE PAID INTO THE TREASURY OF THE UNITED STATES.

THE RULE WOULD SEEM TO BE THAT THE COMPENSATION OF AN OFFICE IS INCIDENT TO THE LEGAL TITLE THERETO. IN MEECHEM ON PUBLIC OFFICERS, SECTION 870, IT IS SAID:

THE RIGHT TO RECEIVE OR RECOVER SALARY OR OTHER COMPENSATION ATTACHED TO AN OFFICE BEING VESTED IN HIM, WHO IS BY LAW THE DULY CHOSEN AND QUALIFIED INCUMBENT OF IT, IT FOLLOWS NECESSARILY THAT WHEN THE RIGHT OF THE OFFICER TO THE OFFICE CEASES * * * HIS RIGHT TO LONGER RECEIVE THE COMPENSATION THEREUPON CEASES ALSO.

ALSO, WITH REFERENCE TO THIS MATTER, IN THROOP ON PUBLIC OFFICERS, SECTION 443, IT IS SAID:

IT HAS BEEN OFTEN HELD, THAT AN OFFICER'S RIGHT TO HIS COMPENSATION DOES NOT GROW OUT OF A CONTRACT BETWEEN HIM AND THE STATE, OR THE MUNICIPALITY BY WHICH IT IS PAYABLE. THE COMPENSATION BELONGS TO THE OFFICER, AS AN INCIDENT OF HIS OFFICE, AND HE IS ENTITLED TO IT, NOT BY FORCE OF ANY CONTRACT, BUT BECAUSE THE LAW ATTACHES IT TO THE OFFICE; AND ALTHOUGH, DURING THE TIME FOR WHICH HE CLAIMS IT, HE HAS EARNED MONEY IN OTHER EMPLOYMENT. THE PROSPECTIVE SALARY OR OTHER EMOLUMENTS OF A PUBLIC OFFICE ARE NOT THE PROPERTY OF THE OFFICER, NOR THE PROPERTY OF THE STATE. THEY ARE NOT PROPERTY AT ALL. THEY ARE LIKE DAILY WAGES UNEARNED, AND WHICH MAY NEVER BE EARNED. THE INCUMBENT MAY DIE OR RESIGN, AND HIS PLACE BE FILLED, AND THE WAGES EARNED, BY ANOTHER. * *

IN 46 CORPUS JURIS 1014 AND 1015, IT IS SAID:

THE PERSON RIGHTFULLY HOLDING AN OFFICE IS ENTITLED TO THE COMPENSATION ATTACHED THERETO; THIS RIGHT DOES NOT REST UPON CONTRACT, AND THE PRINCIPLES OF LAW GOVERNING CONTRACTUAL RELATIONS AND OBLIGATIONS IN ORDINARY CASES ARE NOT APPLICABLE. PUBLIC OFFICERS HAVE NO CLAIM FOR OFFICIAL SERVICES RENDERED EXCEPT WHERE, AND TO THE EXTENT THAT, COMPENSATION IS PROVIDED BY LAW, AND WHEN NO COMPENSATION IS PROVIDED, THE RENDITION OF SUCH SERVICES IS DEEMED TO BE GRATUITOUS. THE RIGHT TO THE COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE. * * *

IN THIS CONNECTION SEE 2 COMP. DEC. 33; 4 ID. 601; AND THE COURT CASES THERE CITED, TO WIT: RIDDLE V. COUNTY OF BEDFORD, 7 SERG. AND R. 386; BOWMAN V. STATE TREASURER, 25 PENN. 23; CITY OF PHILADELPHIA V. GIBSON, 60 PENN. 136; DORSEY V. SMITH, 28 CAL. 21; PEOPLE V. POTTER, 63 CAL. 127; KIMBALL V. ALCORNE, 45 MISS. 151; BRYAN V. COTTELL, 15 IOWA 528, 552; CARROLL V. SIEBENTHALER, 37 CAL. 193; THE PEOPLE V. TIEMAN, 30 BARBOUR N.Y. 143; SLEIGH V. UNITED STATES 9 CT.CLS. 369.

IN THE INSTANT CASE JOSEPH P. BRADY, CLERK OF THE UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF VIRGINIA, DIED ON JANUARY 18, 1931. AFTER THE DEATH OF SUCH INCUMBENT THE OFFICE WAS VACANT UNTIL APRIL 1, 1931, WHEN HIS SUCCESSOR ASSUMED THE DUTIES THEREOF. DURING SUCH VACANCY PERIOD THE DECEASED CLERK'S DEPUTIES WERE REQUIRED TO PERFORM THE DUTIES OF THE OFFICE UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1911, SUPRA. THE STATUTES MAKE NO PROVISION FOR CONTINUING AFTER HIS DEATH THE PAYMENT OF THE SALARY ALLOWED BY STATUTE TO THE CLERK OF THE UNITED STATES DISTRICT COURT EITHER TO THE ADMINISTRATORS OF HIS ESTATE OR TO ANY OTHER PERSON. WHEN THE INCUMBENT OF SAID OFFICE DIED, HIS RIGHT TO THE SALARY OF THE OFFICE CEASED BECAUSE HE THEREUPON CEASED TO HOLD THE OFFICE.

IN VIEW OF THE FACTS AND CIRCUMSTANCES ABOVE SHOWN THERE IS NO LEGAL AUTHORITY TO PAY TO THE ADMINISTRATORS OF THE ESTATE OF SAID DECEASED CLERK OF COURT ANY SALARY ASSERTED TO HAVE ACCRUED TO HIS ESTATE AFTER THE DATE OF HIS DEATH.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF JULY 1, 1932, MUST BE AND IS SUSTAINED.