A-4716, A-4705, A-7148, MAY 6, 1925, 4 COMP. GEN. 925

A-4705,A-4716,A-7148: May 6, 1925

Additional Materials:

Contact:

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

 

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

FEE TO NOTARIES PUBLIC IN GOVERNMENT SERVICE NOTARIES PUBLIC IN THE GOVERNMENT SERVICE ARE NOT ENTITLED TO ADDITIONAL COMPENSATION OR FEES FOR ADMINISTERING TO GOVERNMENT OFFICERS OR EMPLOYEES. UNLESS SUCH PAYMENT IS AUTHORIZED BY LAW AND THERE IS AN AVAILABLE APPROPRIATION EXPLICITLY MAKING PROVISION THEREFOR. 1925: THERE IS BEFORE THIS OFFICE FOR RECONSIDERATION THE QUESTION OF ALLOWANCE OF PAYMENT TO SALARIED OFFICERS OR EMPLOYEES OF THE GOVERNMENT. WHO ARE ALSO NOTARIES PUBLIC. OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS. UNLESS THE SAME IS AUTHORIZED BY LAW. THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY. OR OTHER MATTER OR THING IN WHICH THE UNITED STATES IS A PARTY OR DIRECTLY OR INDIRECTLY INTERESTED.

A-4716, A-4705, A-7148, MAY 6, 1925, 4 COMP. GEN. 925

FEE TO NOTARIES PUBLIC IN GOVERNMENT SERVICE NOTARIES PUBLIC IN THE GOVERNMENT SERVICE ARE NOT ENTITLED TO ADDITIONAL COMPENSATION OR FEES FOR ADMINISTERING TO GOVERNMENT OFFICERS OR EMPLOYEES, UPON DEMAND, WHETHER DURING OR OUT OF REGULAR OFFICE HOURS, ANY OATH REQUIRED OF THEM BY LAW IN THEIR OFFICIAL CAPACITY, UNLESS SUCH PAYMENT IS AUTHORIZED BY LAW AND THERE IS AN AVAILABLE APPROPRIATION EXPLICITLY MAKING PROVISION THEREFOR.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 6, 1925:

THERE IS BEFORE THIS OFFICE FOR RECONSIDERATION THE QUESTION OF ALLOWANCE OF PAYMENT TO SALARIED OFFICERS OR EMPLOYEES OF THE GOVERNMENT, WHO ARE ALSO NOTARIES PUBLIC, OF FEES FOR ADMINISTERING TO OFFICERS OR EMPLOYEES OATHS REQUIRED OF THEM BY LAW IN THEIR OFFICIAL CAPACITY.

THE REVISED STATUTES PROVIDE:

SEC. 170. NO MONEY SHALL BE PAID TO ANY CLERK EMPLOYED IN EITHER DEPARTMENT AT AN ANNUAL SALARY, AS COMPENSATION FOR EXTRA SERVICES, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1764. NO ALLOWANCE OR COMPENSATION SHALL BE MADE TO ANY OFFICER OR CLERK, BY REASON OF THE DISCHARGE OF DUTIES WHICH BELONG TO ANY OTHER OFFICER OR CLERK IN THE SAME OR ANY OTHER DEPARTMENT; AND NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1765. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

SECTION 1782, AS AMENDED BY THE ACT OF MARCH 4, 1909, 35 STAT. 1109, PROVIDES:

WHOEVER, BEING ELECTED OR APPOINTED A SENATOR, MEMBER OF, OR DELEGATE TO CONGRESS, OR A RESIDENT COMMISSIONER, SHALL, AFTER HIS ELECTION OR APPOINTMENT AND EITHER BEFORE OR AFTER HE HAS QUALIFIED, AND DURING HIS CONTINUANCE IN OFFICE, OR BEING THE HEAD OF A DEPARTMENT, OR OTHER OFFICER OR CLERK IN THE EMPLOY OF THE UNITED STATES, SHALL, DIRECTLY OR INDIRECTLY, RECEIVE OR AGREE TO RECEIVE, ANY COMPENSATION WHATEVER FOR ANY SERVICES RENDERED OR TO BE RENDERED TO ANY PERSON, EITHER BY HIMSELF OR ANOTHER, IN RELATION TO ANY PROCEEDING, CONTRACT, CLAIM, CONTROVERSY, CHARGE, ACCUSATION, ARREST, OR OTHER MATTER OR THING IN WHICH THE UNITED STATES IS A PARTY OR DIRECTLY OR INDIRECTLY INTERESTED, BEFORE ANY DEPARTMENT, COURT MARTIAL, BUREAU, OFFICER, OR ANY CIVIL, MILITARY, OR NAVAL COMMISSION WHATEVER, SHALL BE FINED NOT MORE THAN TEN THOUSAND DOLLARS AND IMPRISONED NOT MORE THAN TWO YEARS; AND SHALL MOREOVER, THEREAFTER BE INCAPABLE OF HOLDING ANY OFFICER OF HONOR, TRUST, OR PROFIT UNDER THE GOVERNMENT OF THE UNITED STATES.

AS INDICATING THE INTENTION OF CONGRESS TO PROVIDE FACILITIES FOR THE ADMINISTERING OF CERTAIN OATHS REQUIRED BY LAW, WITHOUT CHARGE THEREFOR, REFERENCE IS MADE TO STATUTES, AS FOLLOWS:

BY THE ACT OF AUGUST 29, 1890, 26 STAT. 371, CHIEF CLERKS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND THE VARIOUS BUREAUS AND OFFICES THEREOF IN WASHINGTON, D.C., ARE AUTHORIZED AND DIRECTED, ON APPLICATION AND WITHOUT COMPENSATION THEREFOR, TO ADMINISTER OATHS OF OFFICE TO EMPLOYEES REQUIRED TO BE TAKEN ON THEIR APPOINTMENT OR PROMOTION, AND THE ACT ALSO PROVIDES THAT NO OFFICER, CLERK, OR EMPLOYEE OF ANY EXECUTIVE DEPARTMENT WHO IS ALSO A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS SHALL CHARGE OR RECEIVE ANY FEE OR COMPENSATION FOR ADMINISTRATING OATHS OF OFFICE TO EMPLOYEES OF SUCH DEPARTMENT REQUIRED TO BE TAKEN ON APPOINTMENT OR PROMOTION THEREIN.

BY THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 511, SUCH CLERKS AND INSPECTORS OF CUSTOMS AS THE SECRETARY OF THE TREASURY MIGHT DESIGNATE FOR THE PURPOSE ARE AUTHORIZED TO ADMINISTER OATHS,"SUCH AS DEPUTY COLLECTORS OF CUSTOMS ARE NOW AUTHORIZED TO ADMINISTER, AND NO COMPENSATION SHALL BE PAID OR CHARGE MADE THEREFOR.' SEE ALSO SECTION 3165, REVISED STATUTES, IN REGARD TO COLLECTORS OF INTERNAL REVENUE.

EXECUTIVE ORDER NO. 977, DATED NOVEMBER 24, 1908, READS:

BY DIRECTION OF THE PRESIDENT, IT IS HEREBY ORDERED THAT HEREAFTER NO OFFICER, CLERK, OR EMPLOYEE IN THE EXECUTIVE SERVICE OF THE GOVERNMENT (EXCEPT POSTMASTERS AT OFFICES OF THE FOURTH CLASS AND RURAL CARRIERS), WHO IS ALSO A NOTARY PUBLIC, SHALL CHARGE OR RECEIVE ANY COMPENSATION WHATEVER FOR PERFORMING ANY NOTARIAL ACT FOR AN OFFICER, CLERK, OR EMPLOYEE OF THE GOVERNMENT IN HIS OFFICIAL CAPACITY, OR FOR ANY PERSON WHEN, IN THE CASE OF SUCH PERSON THE ACT IS PERFORMED DURING THE HOURS OF SUCH NOTARY'S SERVICE TO THE GOVERNMENT.

DISOBEDIENCE OF THIS ORDER SHALL BE GROUND FOR IMMEDIATE DISMISSAL FROM THE SERVICE.

THIS ORDER SHALL NOT APPLY TO OATHS OF DISINTERESTEDNESS OR OTHER OATHS REQUIRED TO BE MADE BY LAW, PROVIDED THAT THE WORK IN CONNECTION THEREWITH IS NOT PERFORMED DURING OFFICE HOURS. FOR THE PURPOSES OF THIS ORDER, THE EXPRESSION "OFFICE HOURS" SHALL BE CONSTRUED TO INCLUDE THE HALF HOUR ALLOWED EACH WORKING DAY FOR LUNCHEON.

SECTION 8 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, PROVIDES:

AFTER JUNE THIRTIETH, NINETEEN HUNDRED AND TWELVE, POSTMASTERS, ASSISTANT POSTMASTERS, COLLECTORS OF CUSTOMS, COLLECTORS OF INTERNAL REVENUE, CHIEF CLERKS, OF THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS, OR CLERKS DESIGNATED BY THEM FOR THE PURPOSE, THE SUPERINTENDENT, THE ACTING SUPERINTENDENT, CUSTODIAN, AND PRINCIPAL CLERKS OF THE VARIOUS NATIONAL PARKS AND OTHER GOVERNMENT RESERVATIONS, SUPERINTENDENT, ACTING SUPERINTENDENTS, AND PRINCIPAL CLERKS OF THE DIFFERENT INDIAN SUPERINTENDENCIES OR INDIAN AGENCIES, AND CHIEFS OF FIELD PARTIES, ARE REQUIRED, EMPOWERED, AND AUTHORIZED, WHEN REQUESTED, TO ADMINISTER OATHS, REQUIRED BY LAW OR OTHERWISE, TO ACCOUNTS FOR TRAVEL OR OTHER EXPENSES AGAINST THE UNITED STATES, WITH LIKE FORCE AND EFFECT AS OFFICERS HAVING A SEAL; FOR SUCH SERVICES WHEN SO RENDERED, OR WHEN RENDERED ON DEMAND AFTER SAID DATE BY NOTARIES PUBLIC, WHO AT THE TIME ARE ALSO SALARIED OFFICERS OR EMPLOYEES OF THE UNITED STATES, NO CHARGE SHALL BE MADE; AND ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND TWELVE, NO FEE OR MONEY PAID FOR THE SERVICES HEREIN DESCRIBED SHALL BE PAID OR REIMBURSED BY THE UNITED STATES.

THE PROVISIONS OF THIS SECTION WERE BY SECTION 7 OF THE ACT OF MARCH 3, 1915, 38 STAT. 928, SPECIALLY EXTENDED TO CHIEF CLERKS IN THE OFFICES OF LIGHTHOUSE INSPECTORS OR OTHER EMPLOYEES IN THE LIGHTHOUSE SERVICE DESIGNATED BY THEM, WITH AUTHORITY TO ADMINISTER OATHS OF OFFICE TO EMPLOYEES OF THE LIGHTHOUSE SERVICE.

BY THE ACT OF FEBRUARY 21, 1911, 36 STAT. 927, EACH UNITED STATES MARSHAL AND EACH CHIEF DEPUTY UNITED STATES MARSHAL IS AUTHORIZED AND EMPOWERED TO ADMINISTER OATHS TO THE MARSHAL'S DEPUTIES AND OTHER PERSONS PRESENTING TO THE MARSHAL CLAIMS AND ACCOUNTS FOR PAYMENT, WITH THE PROVISO THAT THE MARSHAL OR THE CHIEF DEPUTY SHALL NOT BE ENTITLED TO ANY FEE FOR ADMINISTERING SUCH OATHS.

SECTION 1342, REVISED STATUTES, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 669, ENUMERATES CERTAIN ARMY OFFICERS WHO SHALL HAVE POWER TO ADMINISTER OATHS FOR THE PURPOSES OF THE ADMINISTRATION OF MILITARY JUSTICE AND FOR OTHER PURPOSES OF MILITARY ADMINISTRATION; AND IN FOREIGN PLACES WHERE THE ARMY MAY BE SERVING SHALL HAVE THE GENERAL POWERS OF A NOTARY PUBLIC OR OF A CONSUL OF THE UNITED STATES IN THE ADMINISTRATION OF OATHS, THE EXECUTION AND ACKNOWLEDGEMENT OF LEGAL INSTRUMENTS, THE ATTESTATION OF DOCUMENTS, AND ALL OTHER FORMS OF NOTARIAL ACTS TO BE EXECUTED BY PERSONS SUBJECT TO MILITARY LAW.

BY THE ACT OF MARCH 4, 1917, 39 STAT. 1171, CERTAIN ENUMERATED OFFICERS OF THE NAVY, MARINE CORPS, NAVAL RESERVE FORCE, AND MARINE CORPS RESERVE ARE AUTHORIZED TO ADMINISTER OATHS FOR THE PURPOSES OF THE ADMINISTRATION OF NAVAL JUSTICE AND FOR OTHER PURPOSES OF NAVAL ADMINISTRATION.

ARTICLE 116, PARAGRAPHS 3 AND 4, OF THE NAVY REGULATIONS, 1920, APPROVED BY THE PRESIDENT DECEMBER 17, 1920, READS:

(3) NOTARIES PUBLIC SHALL NOT BE EMPLOYED IN ANY MATTERS OF NAVAL ADMINISTRATION WHERE THE OFFICERS OF THE NAVY OR MARINE CORPS, AUTHORIZED BY LAW TO ADMINISTER OATHS FOR THE PURPOSE OF THE ADMINISTRATION OF NAVAL JUSTICE AND FOR OTHER PURPOSES OF NAVAL ADMINISTRATION, ARE PRESENT AND ACCESSIBLE.

(4) NO OFFICER, CLERK, OR EMPLOYEE IN THE EXECUTIVE SERVICE OF THE GOVERNMENT, WHO IS ALSO A NOTARY PUBLIC, SHALL CHARGE OR RECEIVE ANY COMPENSATION WHATEVER FOR PERFORMING ANY NOTARIAL ACT FOR AN OFFICER, CLERK, OR EMPLOYEE OF THE GOVERNMENT IN HIS OFFICIAL CAPACITY, OR IN ANY MATTER IN WHICH THE GOVERNMENT IS INTERESTED, OR FOR ANY PERSON WHEN, IN THE CASE OF SUCH PERSON, THE ACT IS PERFORMED DURING THE HOURS OF SUCH NOTARY'S SERVICE TO THE GOVERNMENT. THIS REGULATION SHALL NOT APPLY TO OATHS OF DISINTERESTEDNESS, OR OTHER OATHS REQUIRED TO BE MADE BY LAW, PROVIDED THAT THE WORK IN CONNECTION THEREWITH IS NOT PERFORMED DURING OFFICE HOURS.

AS INDICATING THE CHIEF PURPOSE IN APPOINTING AS NOTARIES PUBLIC SALARIED OFFICERS OR EMPLOYEES OF THE GOVERNMENT IN THE DISTRICT OF COLUMBIA, THE APPOINTMENT BEING MADE BY THE PRESIDENT, REFERENCE IS MADE TO PRINTED INFORMATION RESPECTING APPLICATION FOR APPOINTMENT ISSUED BY THE DEPARTMENT OF JUSTICE UNDER DATE OF NOVEMBER 16, 1921, READING IN PART:

THE ATTORNEY GENERAL HAS REACHED THE CONCLUSION THAT THE NUMBER OF NOTARIES PUBLIC IN THIS DISTRICT IS AT LEAST LARGE ENOUGH AND THAT HE CAN NOT CONSISTENTLY RECOMMEND FURTHER APPOINTMENTS EXCEPT TO FILL VACANCIES WHICH MAY ARISE IN THE PRESENT LIST, AND THEN ONLY IN CASES WHERE ACTUAL PUBLIC NEED IS SHOWN. * * *

A PERSON EMPLOYED IN AN EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT OFFICE WILL NOT BE APPOINTED OR REAPPOINTED A NOTARY PUBLIC UNLESS HIS APPOINTMENT IS REQUESTED BY THE HEAD OF THAT DEPARTMENT OR OFFICE TO FACILITATE THE TRANSACTION OF GOVERNMENT BUSINESS. PERSONS SO APPOINTED WILL BE EXPECTED TO RESIGN AS NOTARIES PUBLIC UPON LEAVING THE GOVERNMENT SERVICE * * * .

FROM THE FOREGOING REFERENCE IT IS APPARENT THAT THE INTENT OF EXISTING LAWS AND REGULATIONS IS TO PROVIDE, AS FAR AS POSSIBLE WITHOUT ADDITIONAL EXPENSE THEREFOR TO THE UNITED STATES, THE ADMINISTERING OF OATHS REQUIRED BY LAW OF GOVERNMENT OFFICERS OR EMPLOYEES IN THEIR OFFICIAL CAPACITY, WHETHER ADMINISTERED IN A GOVERNMENT BUREAU OR OFFICE IN WASHINGTON OR IN THE FIELD, AND IN THE CASE OF SALARIED OFFICERS OR EMPLOYEES WHO ARE ALSO NOTARIES PUBLIC BY REQUIRING THAT SUCH SERVICES SHALL BE PERFORMED UPON DEMAND AS A PART OF THEIR OFFICIAL DUTIES.

THE PERFORMANCE OF SUCH NOTARIAL SERVICES BY SALARIED OFFICERS OR EMPLOYEES AFTER REGULAR OFFICE HOURS DOES NOT ALTER THE SITUATION. "IT IS WELL SETTLED THAT PER ANNUM EMPLOYEES ARE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME WORK--- I.E., WORK IN EXCESS OF THAT USUALLY REQUIRED OF THEM.' 21 COMP. DEC. 312.

WHILE NEITHER SECTION 8 OF THE ACT OF AUGUST 24, 1912, SUPRA, NOR ANY OTHER LAW SPECIFICALLY PROHIBITS PAYMENT OF ANY FEE TO SUCH NOTARIES FOR SERVICES RENDERED ON DEMAND IN ADMINISTERING OATHS OF DISINTERESTEDNESS REQUIRED BY SECTION 3745, REVISED STATUTES, PAYMENT OF ADDITIONAL COMPENSATION FOR SUCH SERVICES OR FOR ADMINISTERING ANY OTHER OATH WHICH IS REQUIRED BY LAW OF OFFICERS OR EMPLOYEES IN THEIR OFFICIAL CAPACITY BUT PAYMENT FOR WHICH IS NOT SPECIFICALLY PROHIBITED, IS NOT TO BE IMPLIED. SAID NOTARIES, THEREFORE, ARE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR ADMINISTERING, UPON DEMAND, WHETHER DURING OR OUT OF REGULAR OFFICE HOURS, TO GOVERNMENT OFFICERS OR EMPLOYEES, ANY OATH REQUIRED OF THEM BY LAW IN THEIR OFFICIAL CAPACITY, UNLESS THE SAME IS AUTHORIZED BY LAW, SUPPLEMENTED BY AN APPROPRIATION EXPLICITLY MAKING PROVISION FOR SUCH PAYMENT.

THE MATTER HERE INVOLVED IS NOT THAT THERE IS NO SPECIFIC PROHIBITORY STATUTE EXCEPT WHERE THE SERVICE RENDERED BY THE NOTARY IS A DUTY DEVOLVING UPON SOME OTHER OFFICER OR EMPLOYEE AS TO WHICH THE LAW PROHIBITS PAYMENT OF COMPENSATION TO ANY OTHER THAN THE REGULAR SALARY OF AND TO THE INDIVIDUAL CHARGED WITH PERFORMING THE SERVICE AS HIS REGULAR OR SPECIAL DUTY, BUT IS A MATTER OTHERWISE INVOLVING EXPENDITURE OF PUBLIC MONEYS NOT APPROPRIATED FOR SUCH SERVICE, PROVISION THEREFOR HAVING BEEN MADE THROUGH THE EMPLOYMENT OF PERSONNEL CHARGED WITH THE DUTY, THEREBY RENDERING NOTARIAL SERVICES AS SUCH UNNECESSARY AND NOT PROPER CHARGES TO EXISTING APPROPRIATIONS. IT IS NOT A QUESTION OF WHETHER THE LAW EXPRESSLY PROHIBITS SUCH PAYMENTS BUT IS A MATTER REQUIRING EXPRESS STATUTORY AUTHORITY TO OVERCOME THE EXPRESS AND IMPLIED INHIBITIONS FOUND IN THE STATUTES AND THE FUNDAMENTAL PRINCIPLES OF A GOVERNMENT OF EXPRESS POWERS.

ANY DECISIONS RENDERED BY THIS OFFICE IN CONFLICT HEREWITH ARE HEREBY MODIFIED TO THE EXTENT OF SUCH CONFLICTING VIEWS.