A-68121, DECEMBER 17, 1935, 15 COMP. GEN. 526

A-68121: Dec 17, 1935

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POSTAL SERVICE - APPOINTMENT OF CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS ONLY REGULAR AND SUBSTITUTE CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE FROM THE SAME POST OFFICE AT WHICH A DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS IS LOCATED MAY BE TRANSFERRED TO THE POSITION OF CLERK AT SUCH DIVISION HEADQUARTERS. 1935: THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 23. DEPARTMENTAL REGULATION IS PROPER UNDER WHICH THE INITIAL SALARY GRADE OF PERSONS REINSTATED OR TRANSFERRED TO CLERICAL OR CARRIER POSITIONS IN POST OFFICES MAY BE FIXED BY THE ADMINISTRATIVE OFFICE. IT IS FREQUENTLY FOUND DESIRABLE TO APPOINT AS CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS SUBSTITUTE CLERKS AND CARRIERS HAVING TO THEIR CREDIT SUCH A NUMBER OF HOURS OF SUBSTITUTE SERVICE AS WOULD ENTITLE THEM TO APPOINTMENT AS REGULAR CLERKS OR CARRIERS AT $2.

A-68121, DECEMBER 17, 1935, 15 COMP. GEN. 526

POSTAL SERVICE - APPOINTMENT OF CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS ONLY REGULAR AND SUBSTITUTE CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE FROM THE SAME POST OFFICE AT WHICH A DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS IS LOCATED MAY BE TRANSFERRED TO THE POSITION OF CLERK AT SUCH DIVISION HEADQUARTERS, AND THE INITIAL GRADE AND SALARY RATE MAY NOT EXCEED GRADE 6, SALARY $2,300 PER ANNUM, THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1056, PRECLUDING SIMILAR TRANSFERS OF CLERKS OR CARRIERS FROM OTHER POST OFFICES OR OF RAILWAY POSTAL CLERKS.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, DECEMBER 17, 1935:

THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 23, 1935, AS FOLLOWS:

IN YOUR DECISION OF OCTOBER 28, 1927 (7 C.G. 295), YOU STATED THAT IN THE ABSENCE OF ANY PROVISIONS TO THE CONTRARY EXPRESSED OR IMPLIED IN THE GOVERNING STATUTES OR IN THE APPROPRIATION ACTS, DEPARTMENTAL REGULATION IS PROPER UNDER WHICH THE INITIAL SALARY GRADE OF PERSONS REINSTATED OR TRANSFERRED TO CLERICAL OR CARRIER POSITIONS IN POST OFFICES MAY BE FIXED BY THE ADMINISTRATIVE OFFICE, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, ABOVE THE MINIMUM SALARY GRADE.

IT IS FREQUENTLY FOUND DESIRABLE TO APPOINT AS CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS SUBSTITUTE CLERKS AND CARRIERS HAVING TO THEIR CREDIT SUCH A NUMBER OF HOURS OF SUBSTITUTE SERVICE AS WOULD ENTITLE THEM TO APPOINTMENT AS REGULAR CLERKS OR CARRIERS AT $2,100. LIKEWISE IT IS OFTEN FOUND DESIRABLE TO APPOINT SUBSTITUTE RAILWAY POSTAL CLERKS HAVING TO THEIR CREDIT SUFFICIENT SUBSTITUTE SERVICE TO ENTITLE THEM TO REGULAR APPOINTMENTS AT $2,300 IN THE RAILWAY MAIL SERVICE. IN SUCH CASES IT DOES NOT SEEM PROPER TO REQUIRE SUCH SUBSTITUTES TO ENTER THE INSPECTION SERVICE AT $1,900.

THE ACT OF FEBRUARY 28, 1925 (CONSTRUED IN YOUR DECISION ABOVE CITED), PROVIDED, IN PART, AS FOLLOWS:

"* * * WHENEVER IN THE DISCRETION OF THE POSTMASTER GENERAL THE NEEDS OF THE SERVICE REQUIRE SUCH ACTION, HE IS AUTHORIZED TO TRANSFER CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE FROM POST OFFICES AT WHICH DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS ARE LOCATED TO THE POSITION OF CLERK AT SUCH DIVISION HEADQUARTERS AFTER PASSING A NONCOMPETITIVE EXAMINATION AT A SALARY NOT TO EXCEED $2,300. AFTER SUCH TRANSFER IS MADE EFFECTIVE, CLERKS SO TRANSFERRED SHALL BE ELIGIBLE FOR PROMOTION TO THE GRADES OF SALARIES FOR CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS.'

YOUR DECISION IS SOUGHT ON THE QUESTION WHETHER THE QUOTED PROVISIONS OF THE ACT OF FEBRUARY 28, 1925, PREVENT THE TRANSFER OF THE FOLLOWING CLASSES OF EMPLOYEES AT MORE THAN $1,900 PER ANNUM.

(A) SUBSTITUTE CLERKS OR CARRIERS ATTACHED TO THE POST OFFICE AT WHICH THE DIVISION HEADQUARTERS IS LOCATED.

(B) SUBSTITUTE CLERKS AND CARRIERS ATTACHED TO OTHER POST OFFICES.

(C) SUBSTITUTE RAILWAY POSTAL CLERKS WHOSE SALARIES ARE PAID BY THE POSTMASTER AT WHOSE OFFICE THE DIVISION HEADQUARTERS IS LOCATED.

(D) SUBSTITUTE RAILWAY POSTAL CLERKS WHOSE SALARIES ARE PAID BY OTHER POSTMASTERS.

SECTION 2 OF THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1055, 1056), IN ADDITION TO THE PROVISION QUOTED IN YOUR LETTER, DIVIDES THE POSITION OF CLERKS AT THE DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS INTO SIX GRADES, AS FOLLOWS: GRADE 1, SALARY $1,900; GRADE 2, SALARY $2,000; GRADE 3, SALARY $2,150; GRADE 4, SALARY $2,300; GRADE 5, SALARY $2,450; AND GRADE 6, SALARY $2,600. SAID SECTION PROVIDES ALSO FOR AUTOMATIC PROMOTION TO GRADE 5 AND FOR SELECTIVE PROMOTION OF NOT TO EXCEED 35 PERCENT OF THE FORCE TO GRADE 6, BUT THERE IS NO PROVISION LIMITING ORIGINAL APPOINTMENTS OR TRANSFERS TO GRADE 1. THE RULE STATED IN THE DECISION YOU CITE, AS WELL AS A NUMBER OF OTHER DECISIONS OF THIS OFFICE, IS THAT IN THE ABSENCE OF A LIMITATION PRESCRIBED BY STATUTE ORIGINAL APPOINTMENTS TO AUTOMATIC GRADES BY TRANSFER, REINSTATEMENT, OR OTHERWISE MAY BE MADE ABOVE THE MINIMUM GRADE WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION.

HOWEVER, IN THIS INSTANCE THE PORTION OF THE STATUTE QUOTED IN YOUR LETTER PROVIDES SPECIFICALLY FOR TRANSFERS TO THE POSITION OF CLERK AT DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS, AND PURSUANT TO THE LEGAL MAXIM "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS" TRANSFERS MAY BE MADE TO SUCH POSITIONS ONLY PURSUANT TO AND WITHIN THE LIMITATION OF SAID STATUTE. THAT IS TO SAY, ONLY "CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE FROM POST OFFICES AT WHICH DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS ARE LOCATED" MAY BE TRANSFERRED "TO THE POSITION OF CLERK AT SUCH DIVISION HEADQUARTERS," AND THE INITIAL GRADE AND SALARY RATE MAY NOT EXCEED GRADE 6, SALARY $2,300. WHILE THE DESIGNATION "CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE" IS BROAD ENOUGH TO INCLUDE BOTH REGULAR AND SUBSTITUTE CLERKS OR CARRIERS, THE WORDING OF THE STATUTE IS SO PHRASED AS TO INDICATE AN INTENT TO LIMIT THE TRANSFERS OF CLERKS OR CARRIERS TO THOSE AT THE POST OFFICE WHERE THE DIVISION HEADQUARTERS OF INSPECTORS IS LOCATED.

ACCORDINGLY THE CLASSES OF EMPLOYEES MENTIONED IN (A) OF YOUR CONCLUDING PARAGRAPH MAY BE TRANSFERRED OR APPOINTED TO THE POSITION OF CLERK AT DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS AFTER HAVING PASSED A NONCOMPETITIVE EXAMINATION, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, AND PAID INITIALLY NOT TO EXCEED $2,300 PER ANNUM; BUT THE CLASSES OF EMPLOYEES MENTIONED IN (B), (C), AND (D) OF YOUR LETTER MAY NOT BE SO TRANSFERRED OR APPOINTED.