A-5516, OCTOBER 16, 1924, 4 COMP. GEN. 385

A-5516: Oct 16, 1924

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THERE IS NO AUTHORITY FOR USING A PRIOR DATE IN SUCH COMPUTATION EVEN THOUGH THE OFFICER MAY HAVE ENTERED UPON HIS DUTIES AT A DATE PRIOR TO THAT OF TAKING THE OATH OF OFFICE. 1924: I HAVE YOUR LETTER OF SEPTEMBER 30. IT APPEARS THAT THE OFFICER IN QUESTION WAS APPOINTED CONSUL AUGUST 18. THE LANGUAGE OF THE ACT IS CLEAR AND THE MEANING IS UNMISTAKABLE. THE PERIOD OF SERVICE IS TO BE COMPUTED FROM THE DATE OF THE ORIGINAL OATH OF OFFICE IN ANY OF THE VARIOUS POSITIONS NAMED. REFERENCE IS MADE IN THE SUBMISSION TO 4 COMP. THE DECISIONS HELD THAT THE STATUTE WAS DIRECTORY AND IF THE REQUIRED OATH IS TAKEN THE OFFICER WOULD BE ENTITLED TO COMPENSATION FROM THE DATE OF ENTERING UPON DUTY. IN THE PRESENT CASE THE LAW HAS FIXED A DEFINITE DATE AS THE STARTING POINT FOR COMPUTATION OF AN OFFICER'S PERIOD OF SERVICE AND THERE IS NOTHING AMBIGUOUS OR DOUBTFUL IN THE LANGUAGE USED.

A-5516, OCTOBER 16, 1924, 4 COMP. GEN. 385

RETIREMENT - FOREIGN SERVICE OFFICERS THE ACT OF MAY 24, 1924, 43 STAT. 140, HAVING PROVIDED THAT THE PERIOD OF SERVICE OF FOREIGN SERVICE OFFICERS RETIRED UNDER THE PROVISIONS OF SAID ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL OATH OF OFFICE, THERE IS NO AUTHORITY FOR USING A PRIOR DATE IN SUCH COMPUTATION EVEN THOUGH THE OFFICER MAY HAVE ENTERED UPON HIS DUTIES AT A DATE PRIOR TO THAT OF TAKING THE OATH OF OFFICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, OCTOBER 15, 1924:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1924, REQUESTING DECISION AS TO THE DATE FROM WHICH LENGTH OF SERVICE SHOULD BE COMPUTED FOR THE PURPOSE OF PAYING RETIREMENT ANNUITY TO AMERICAN CONSUL BRADSTREET S. RAIRDEN UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1924, 43 STAT. 140.

IT APPEARS THAT THE OFFICER IN QUESTION WAS APPOINTED CONSUL AUGUST 18, 1892, AND ENTERED UPON HIS DUTIES AS A CONSULAR OFFICER ON NOVEMBER 1, 1892, BUT DID NOT TAKE THE OATH OF OFFICE UNTIL MAY 1, 1893.

PARAGRAPH (P) OF SECTION 18 OF THE ACT OF MAY 24, 1924, 43 STAT. 145, PROVIDES:

FOR THE PURPOSES OF THIS ACT THE PERIOD OF SERVICE SHALL BE COMPUTED FROM THE DATE OF ORIGINAL OATH OF OFFICE AS SECRETARY IN THE DIPLOMATIC SERVICE, CONSUL GENERAL, CONSUL * * *.

THE LANGUAGE OF THE ACT IS CLEAR AND THE MEANING IS UNMISTAKABLE. THE PERIOD OF SERVICE IS TO BE COMPUTED FROM THE DATE OF THE ORIGINAL OATH OF OFFICE IN ANY OF THE VARIOUS POSITIONS NAMED. REFERENCE IS MADE IN THE SUBMISSION TO 4 COMP. DEC. 496, AND THE CASE OF UNITED STATES V. EATON, 169 U.S. 331. SAID DECISIONS INVOLVED THE CONSTRUCTION OF A STATUTE WHICH REQUIRED THAT AN OFFICER SHOULD TAKE AN OATH OF OFFICE BEFORE ENTERING UPON THE DUTIES THEREOF, AND THE DECISIONS HELD THAT THE STATUTE WAS DIRECTORY AND IF THE REQUIRED OATH IS TAKEN THE OFFICER WOULD BE ENTITLED TO COMPENSATION FROM THE DATE OF ENTERING UPON DUTY.

IN THE PRESENT CASE THE LAW HAS FIXED A DEFINITE DATE AS THE STARTING POINT FOR COMPUTATION OF AN OFFICER'S PERIOD OF SERVICE AND THERE IS NOTHING AMBIGUOUS OR DOUBTFUL IN THE LANGUAGE USED. IT IS NOT UNREASONABLE TO PRESUME THAT THERE WERE IN CONTEMPLATION WHEN THE PROVISION IN QUESTION WAS ENACTED SITUATIONS SIMILAR TO THE ONE PRESENTED IN YOUR LETTER AND THAT IT WAS TO AVOID UNCERTAINTY AS TO THE BEGINNING OF SERVICE IN SUCH CASES THAT THE LAW SPECIFICALLY STATED THAT THE PERIOD OF SERVICE SHALL BE COMPUTED FROM THE DATE OF ORIGINAL OATH OF OFFICE. BUT BE THAT AS IT MAY, THE PLAIN TERMS OF THE STATUTE LEAVE NO ROOM FOR CONSTRUCTION OR INTERPRETATION. YOU ARE ADVISED THEREFORE THAT THE PERIOD BETWEEN NOVEMBER 1, 1892, AND MAY 1, 1893, MAY NOT PROPERLY BE INCLUDED IN DETERMINING THE LENGTH OF SERVICE OF CONSUL RAIRDEN FOR THE PURPOSES OF THE ACT OF MAY 24, 1924.