A-48144, APRIL 20, 1933, 12 COMP. GEN. 599

A-48144: Apr 20, 1933

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WAS NOT ISSUED UNTIL MARCH 20. IS NOT ENTITLED TO COMPENSATION BETWEEN FEBRUARY 23 AND MARCH 20. AS FOLLOWS: AN OPINION IS REQUESTED ON THE FOLLOWING MATTER: ON FEBRUARY 23. JUDGE SYKES WAS NOMINATED BY THE PRESIDENT FOR REAPPOINTMENT. THE PRESIDENT WAS NOTIFIED OF THIS CONFIRMATION. THE COMMISSION WAS SIGNED BY THE PRESIDENT ON MARCH 20. IT IS REQUESTED THAT THIS COMMISSION BE ADVISED AS TO THE EFFECTIVE DATE OF THIS APPOINTMENT IN ORDER THAT A SALARY CHECK MAY BE DRAWN ACCORDINGLY. THE EXPIRATION OF THE TERMS OF THE FEDERAL RADIO COMMISSIONERS IS THUS FIXED BY STATUTE AS FEBRUARY 23 AND ALL COMMISSIONS ARE REQUIRED TO BE FOR A PRESCRIBED TERM OF YEARS TERMINATING ON THAT DAY OF THAT MONTH.

A-48144, APRIL 20, 1933, 12 COMP. GEN. 599

COMPENSATION - APPOINTMENTS - FEDERAL RADIO COMMISSION A MEMBER OF THE FEDERAL RADIO COMMISSION WHOSE COMMISSION EXPIRED FEBRUARY 23, 1933, AND WHOSE COMMISSION ON REAPPOINTMENT, AFTER CONFIRMATION BY THE SENATE, WAS NOT ISSUED UNTIL MARCH 20, 1933, AT WHICH TIME HE TOOK THE OATH OF OFFICE, IS NOT ENTITLED TO COMPENSATION BETWEEN FEBRUARY 23 AND MARCH 20, 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE FEDERAL RADIO COMMISSION, APRIL 20, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 27, 1933, AS FOLLOWS:

AN OPINION IS REQUESTED ON THE FOLLOWING MATTER:

ON FEBRUARY 23, 1933, THE APPOINTMENT OF EUGENE O. SYKES AS A COMMISSIONER WITH THIS COMMISSION EXPIRED. ON MARCH 13, 1933, JUDGE SYKES WAS NOMINATED BY THE PRESIDENT FOR REAPPOINTMENT. ON MARCH 16, 1933, THE SENATE CONFIRMED THE NOMINATION OF JUDGE SYKES FOR REAPPOINTMENT AND ON MARCH 20, 1933, THE PRESIDENT WAS NOTIFIED OF THIS CONFIRMATION. THE COMMISSION WAS SIGNED BY THE PRESIDENT ON MARCH 20, 1933, AND READS AS FOLLOWS:

"* * * A MEMBER OF THE FEDERAL RADIO COMMISSION FOR A TERM OF SIX YEARS FROM FEBRUARY 24, 33.'

THE OATH OF OFFICE AND THE AFFIDAVIT TO BE EXECUTED BY CIVIL OFFICERS OF THE UNITED STATES UPON APPOINTMENT TO OFFICE ALSO CONTAINED THE SAME CLAUSE. JUDGE SYKES TOOK HIS OATH OF OFFICE MARCH 20, 1933.

IT IS REQUESTED THAT THIS COMMISSION BE ADVISED AS TO THE EFFECTIVE DATE OF THIS APPOINTMENT IN ORDER THAT A SALARY CHECK MAY BE DRAWN ACCORDINGLY.

SECTION 3 OF THE ACT OF FEBRUARY 23, 1927, 44 STAT. 1162, 1163, PROVIDED:

THE FIRST COMMISSIONERS SHALL BE APPOINTED FOR THE TERMS OF TWO, THREE, FOUR, FIVE, AND SIX YEARS, RESPECTIVELY, FROM THE DATE OF THE TAKING EFFECT OF THIS ACT, THE TERM OF EACH TO BE DESIGNATED BY THE PRESIDENT, BUT THEIR SUCCESSORS SHALL BE APPOINTED FOR TERMS OF SIX YEARS, EXCEPT THAT ANY PERSON CHOSEN TO FILL A VACANCY SHALL BE APPOINTED ONLY FOR THE UNEXPIRED TERM OF THE COMMISSIONER WHOM HE SHALL SUCCEED.

SEE, ALSO, ACTS OF MARCH 28, 1928, 45 STAT. 373; MARCH 4, 1929, ID. 1559; AND DECEMBER 18, 1929, 46 STAT. 50.

THE EXPIRATION OF THE TERMS OF THE FEDERAL RADIO COMMISSIONERS IS THUS FIXED BY STATUTE AS FEBRUARY 23 AND ALL COMMISSIONS ARE REQUIRED TO BE FOR A PRESCRIBED TERM OF YEARS TERMINATING ON THAT DAY OF THAT MONTH. THE DATE FROM WHICH THE PERIOD FOR WHICH APPOINTMENT IS MADE IS TO BE COMPUTED IS NOT DETERMINATIVE OF THE OFFICER'S RIGHT TO COMPENSATION. PRESIDENTIAL APPOINTMENTS ARE NOT EFFECTIVE UNTIL A COMMISSION HAS BEEN ISSUED AFTER NOMINATION BY THE PRESIDENT AND CONFIRMATION BY THE SENATE. MARBURY V. MADISON, 1 CRANCH 137; UNITED STATES V. LE BARON, 19 HOWARD 78; GLAVEY V. UNITED STATES, 182 U.S. 595. PRIOR TO THE CONSUMMATION OF THE APPOINTMENT THE APPOINTEE CAN NOT ACCEPT OR HOLD THE OFFICE AND IS NOT ENTITLED TO THE SALARY THEREOF. 27 COMP. DEC. 861.

COMMISSIONER SYKES IS NOT, THEREFORE, ENTITLED TO ANY COMPENSATION FOR THE PERIOD BETWEEN FEBRUARY 23, 1933, THE EXPIRATION OF HIS FORMER TERM, AND MARCH 20, 1933, THE EFFECTIVE DATE OF HIS NEW COMMISSION.