A-61664, JULY 24, 1935, 15 COMP. GEN. 71

A-61664: Jul 24, 1935

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OATH OF OFFICE - HAWAIIAN LEGISLATURE - COMPENSATION A PERSON WHOSE ELECTION TO THE HAWAIIAN LEGISLATURE WAS CONFIRMED BY THAT BODY BUT WHO DIED WITHOUT HAVING TAKEN THE OATH OF OFFICE OR PERFORMING ANY SERVICE IS NOT ENTITLED TO ANY COMPENSATION BY REASON OF SUCH ELECTION. A MEMBER OF THE HAWAIIAN LEGISLATURE WHO WAS ELECTED AND QUALIFIED DURING A SESSION OF THAT BODY IS ENTITLED TO A PRO RATA SHARE OF THE COMPENSATION PRESCRIBED BY LAW FOR SUCH PORTION OF THE FULL TERM AS IS SERVED BY HIM. HATTIE WAS PAID ONE THIRD OF HIS SALARY UNDER THE PROVISIONS OF THE ORGANIC ACT WHICH AS COMPUTED BY THIS OFFICE AMOUNTED TO THE FIRST TWENTY DAYS AND MILEAGE TO AND FROM HIS HOME. HE WAS PAID SALARY AND MILEAGE ON THE STRENGTH OF A RESOLUTION BY THE HOUSE OF REPRESENTATIVES DECLARING ALL MEMBERS DULY ELECTED AND LEGALLY ENTITLED TO TAKE THEIR SEATS.

A-61664, JULY 24, 1935, 15 COMP. GEN. 71

OATH OF OFFICE - HAWAIIAN LEGISLATURE - COMPENSATION A PERSON WHOSE ELECTION TO THE HAWAIIAN LEGISLATURE WAS CONFIRMED BY THAT BODY BUT WHO DIED WITHOUT HAVING TAKEN THE OATH OF OFFICE OR PERFORMING ANY SERVICE IS NOT ENTITLED TO ANY COMPENSATION BY REASON OF SUCH ELECTION. A MEMBER OF THE HAWAIIAN LEGISLATURE WHO WAS ELECTED AND QUALIFIED DURING A SESSION OF THAT BODY IS ENTITLED TO A PRO RATA SHARE OF THE COMPENSATION PRESCRIBED BY LAW FOR SUCH PORTION OF THE FULL TERM AS IS SERVED BY HIM.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 24, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 26, 1935, AS FOLLOWS:

THE FOLLOWING RADIOGRAM FROM THE GOVERNOR OF HAWAII HAS BEEN RECEIVED BY THIS DEPARTMENT:

"RESPECTFULLY REQUEST RULING ON THE FOLLOWING: THE LATE REPRESENTATIVE IN TERRITORIAL LEGISLATURE JAMES A. HATTIE WAS PAID ONE THIRD OF HIS SALARY UNDER THE PROVISIONS OF THE ORGANIC ACT WHICH AS COMPUTED BY THIS OFFICE AMOUNTED TO THE FIRST TWENTY DAYS AND MILEAGE TO AND FROM HIS HOME. MR. HATTIE DIED ON SUNDAY, MARCH 17, THE DAY FOLLOWING THE TWENTY-FIRST DAY OF THE LEGISLATIVE SESSION, WITHOUT HAVING TAKEN HIS SEAT. ON FEBRUARY TWENTY-SECOND, THIRD DAY OF SESSION, HE WAS PAID SALARY AND MILEAGE ON THE STRENGTH OF A RESOLUTION BY THE HOUSE OF REPRESENTATIVES DECLARING ALL MEMBERS DULY ELECTED AND LEGALLY ENTITLED TO TAKE THEIR SEATS. WAS THE LATE MR. HATTIE ENTITLED TO THE SALARY AND MILEAGE PAID HIM? DEPARTMENT RULES THAT THE LATE MR. HATTIE WAS NOT ENTITLED TO MONEY PAID HIM THIS OFFICE WILL IMMEDIATELY TAKE STEPS TO RETRIEVE THE MONEY.'

THE PAYMENT IN QUESTION WAS MADE OUT OF FUNDS APPROPRIATED PURSUANT TO SECTION 26 OF THE ORGANIC ACT OF HAWAII (U.S. CODE, TITLE 48, SEC. 599) WHICH PROVIDES THAT

"THE MEMBERS OF THE LEGISLATURE SHALL RECEIVE FOR THEIR SERVICES, IN ADDITION TO MILEAGE AT THE RATE OF 20 CENTS A MILE EACH WAY, THE SUM OF $1,000 FOR EACH REGULAR SESSION, PAYABLE IN THREE EQUAL INSTALLMENTS ON AND AFTER THE FIRST, THIRTIETH, AND FIFTIETH DAYS OF THE SESSION * * *.'

IT IS TO BE NOTED THAT THE ORGANIC ACT ALSO MAKES EACH HOUSE OF THE LOCAL LEGISLATURE "THE JUDGE OF THE ELECTIONS, RETURNS, AND QUALIFICATIONS OF ITS OWN MEMBERS" (U.S. CODE, TIT. 48, SEC. 612) AND REQUIRES THAT "EVERY MEMBER OF THE LEGISLATURE" SHALL TAKE A PRESCRIBED OATH OF OFFICE (U.S. CODE, TIT. 48, SEC. 591).

MY ATTENTION HAS BEEN DIRECTED TO DECISIONS OF THE ATTORNEY GENERAL TO THE EFFECT THAT REPRESENTATIVES-ELECT TO THE CONGRESS OF THE UNITED STATES DO NOT BECOME "MEMBERS" OF THE HOUSE UNTIL THEY HAVE TAKEN THE OATH OF OFFICE. SEE 15 OP.ATTY.GEN. 281 AND 14 OP.ATTY.GEN. 406.

IN THESE CIRCUMSTANCES I REQUEST THAT YOU DECIDE WHETHER MR. HATTIE WAS ENTITLED EITHER (A) TO SALARY FOR THE 21 DAYS OF THE LEGISLATIVE SESSION WHICH ELAPSED BEFORE HIS DEATH, OR (B) TO THE MILEAGE PAYABLE TO MEMBERS OF THE LEGISLATURE.

A QUESTION HAS ALSO ARISEN CONCERNING THE COMPENSATION OF THE NEW MEMBER CHOSEN AT A SPECIAL ELECTION TO FILL THE UNEXPIRED TERM. THE NEW MEMBER WAS SEATED ON APRIL 4, SEVERAL DAYS AFTER HIS ELECTION. IS THE FRACTION OF THE SESSION FOR WHICH HE SHALL RECEIVE COMPENSATION TO BE DETERMINED BY THE DATE OF HIS SEATING AND, IF NOT, WHAT METHOD OF CALCULATION IS PROPERLY TO BE EMPLOYED?

SECTION 19 OF THE ACT OF APRIL 30, 1900, 31 STAT. 145, REQUIRES EVERY MEMBER OF THE LEGISLATURE OF HAWAII TO TAKE THE OATH OR AFFIRMATION THEREIN PRESCRIBED. IT IS WELL ESTABLISHED THAT WHERE AN OFFICER IS REQUIRED BY LAW TO TAKE AN OATH OF OFFICE HE IS NOT ENTITLED TO ANY COMPENSATION PRIOR TO TAKING SUCH OATH AND IF HIS SERVICES ARE TERMINATED BEFORE THE OATH IS TAKEN HE IS ENTITLED TO NO COMPENSATION FOR SERVICES SO RENDERED. 8 COMP. DEC. 199; 10 COMP. GEN. 524. WHILE THE ORGANIC ACT MAKES EACH HOUSE OF THE LEGISLATURE OF THE TERRITORY OF HAWAII JUDGE OF THE ELECTION RETURNS AND QUALIFICATIONS OF ITS OWN MEMBERS, IT DOES NOT GIVE TO THE HOUSES OF THE LEGISLATURE THE POWER OR AUTHORITY TO WAIVE THE STATUTORY REQUIREMENT MADE IN THE SAME ACT THAT THE MEMBERS SHALL TAKE THE PRESCRIBED OATH OF OFFICE. THE DETERMINATION BY EACH HOUSE THAT A MEMBER WAS DULY ELECTED AND QUALIFIED TO TAKE HIS SEAT ENTITLES THE MEMBER TO TAKE THE OATH OF OFFICE BUT DOES NOT WAIVE THAT REQUIREMENT.

UNDER THE CIRCUMSTANCES THE PAYMENT OF COMPENSATION AND MILEAGE TO JAMES A. HATTIE WAS IN ERROR AND THE AMOUNT SHOULD BE RECOVERED.

WITH RESPECT TO THE QUESTION STATED IN THE CONCLUDING PARAGRAPH OF THE LETTER OF APRIL 26, 1935, YOU ARE INFORMED THAT A NEW MEMBER ELECTED AT A SPECIAL ELECTION TO FILL A VACANCY IN THE TERRITORIAL LEGISLATURE IS ENTITLED TO A PRO RATA SHARE OF THE COMPENSATION FOR THE REGULAR OR SPECIAL LEGISLATIVE SESSION, AS THE CASE MAY BE, WHICH ACCRUED ON AND AFTER THE DATE OF HIS QUALIFICATION. SUCH MEMBER ELECTED TO FILL A VACANCY IS NOT ENTITLED TO THE PRO RATA SHARE OF THE COMPENSATION FOR THE LEGISLATIVE SESSION WHICH ACCRUED PRIOR TO THE DATE OF HIS QUALIFICATION.