A-79476, SEPTEMBER 16, 1936, 16 COMP. GEN. 254

A-79476: Sep 16, 1936

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FOR WHICH TRANSPORTATION COMPANIES ARE LIABLE. ARE FOR PAYMENT FROM THE APPROPRIATION "SALARIES AND EXPENSES. IMMIGRATION SERVICE" CURRENT AT THE TIME COLLECTION FROM THE CARRIER IS MADE. THE ORIGINAL PROCEDURE WAS TO COLLECT THE MONEY FROM THE TRANSPORTATION LINES. " AFTER WHICH IT WAS TRANSFERRED TO "6S803. THIS PROCEDURE WAS CHANGED. THE MONEY NOW COLLECTED FROM THE TRANSPORTATION LINES FOR OVERTIME SERVICES IS DEPOSITED TO MISCELLANEOUS RECEIPTS OF THE TREASURY. PERSONAL VOUCHERS COVERING OVERTIME SERVICES OF EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE PAID FROM THE APPROPRIATION "SALARIES AND EXPENSES. WAS FILED IN THE UNITED STATES DISTRICT COURT AT BURLINGTON.

A-79476, SEPTEMBER 16, 1936, 16 COMP. GEN. 254

COMPENSATION - OVERTIME - IMMIGRATION SERVICE EMPLOYEES - DELAYED PAYMENTS AND INTEREST EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE, FOR WHICH TRANSPORTATION COMPANIES ARE LIABLE, NOT BEING FOR PAYMENT TO EMPLOYEES IN EXCESS OF AMOUNTS COLLECTED, CLAIMS FOR SUCH SERVICES PERFORMED BEFORE AND AFTER JULY 1, 1935, INVOLVING AMOUNTS NOT COLLECTED BEFORE THAT DATE, ARE FOR PAYMENT FROM THE APPROPRIATION "SALARIES AND EXPENSES, IMMIGRATION SERVICE" CURRENT AT THE TIME COLLECTION FROM THE CARRIER IS MADE, OR, IF EXHAUSTED, FROM A SUPPLEMENTAL APPROPRIATION TO BE OBTAINED AS AUTHORIZED BY LAW (15 COMP. GEN. 445, DISTINGUISHED), THERE BEING NO AUTHORITY FOR HOLDING SUCH COLLECTION IN A SPECIAL DEPOSIT ACCOUNT FOR PAYMENT OF THE CLAIMS INVOLVED. INTEREST COLLECTED FROM CARRIERS IN CONNECTION WITH DELAYED PAYMENTS FOR OVERTIME SERVICES PERFORMED BY IMMIGRATION SERVICE EMPLOYEES SHOULD BE COVERED INTO THE TREASURY AS A MISCELLANEOUS RECEIPT WHERE THERE EXISTS NO STATUTORY PROVISION, CONTRACTUAL AGREEMENT, OR REQUIREMENT IN THE COURT JUDGMENT INVOLVED, FOR PAYMENT OF SAME TO THE EMPLOYEES WHO PERFORMED SAID SERVICES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, SEPTEMBER 16, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 3, 1936, AS FOLLOWS:

THE ACT OF MARCH 2, 1931 (46 STAT. 1467 U.S.C. SUP. 6 T. 8, SEC. 109 A, B) PROVIDES THAT INSPECTORS AND OTHER EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE SHALL BE PAID EXTRA COMPENSATION FOR OVERTIME UNDER CERTAIN SPECIFIED CONDITIONS AND THE SECRETARY OF LABOR SHALL COLLECT SUCH EXTRA COMPENSATION FROM TRANSPORTATION LINES AND PAY IT TO THE EMPLOYEES INVOLVED.

THE ORIGINAL PROCEDURE WAS TO COLLECT THE MONEY FROM THE TRANSPORTATION LINES, DEPOSIT IT TO THE FUND "4065, IMMIGRATION OVERTIME SERVICE," AFTER WHICH IT WAS TRANSFERRED TO "6S803, EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE (SPECIAL FUND)" AND MADE AVAILABLE FOR PAYMENT OF PERSONAL OVERTIME VOUCHERS. UNDER THE PERMANENT APPROPRIATIONS REPEAL ACT EFFECTIVE JULY 1, 1935, THIS PROCEDURE WAS CHANGED. THE MONEY NOW COLLECTED FROM THE TRANSPORTATION LINES FOR OVERTIME SERVICES IS DEPOSITED TO MISCELLANEOUS RECEIPTS OF THE TREASURY, AND PERSONAL VOUCHERS COVERING OVERTIME SERVICES OF EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE PAID FROM THE APPROPRIATION "SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE.'

ON JULY 9, 1933, A SUIT ENTITLED U.S. V. CENTRAL VERMONT RAILWAY, INC., AT LAW NO. 961, WAS FILED IN THE UNITED STATES DISTRICT COURT AT BURLINGTON, VERMONT, BY THE UNITED STATES ATTORNEY FOR THE SUM OF $5,646.59 THEN DUE FOR OVERTIME INSPECTION SERVICES PERFORMED BY IMMIGRATION OFFICERS. NO OVERTIME HAS BEEN PAID BY THE CENTRAL VERMONT RAILWAY INC. SINCE THE SUIT WAS FILED AND THE DELAWARE AND HUDSON RAILROAD CORPORATION AND THE RUTLAND RAILROAD COMPANY REFUSED TO PAY OVERTIME PENDING THE OUTCOME OF THE SUIT AGAINST THE CENTRAL VERMONT RAILWAY, INC.

THE SUIT WAS HEARD BEFORE JUDGE HARLAN B. HOWE ON MAY 21, 1934, AND A DECISION IN FAVOR OF THE UNITED STATES HANDED DOWN ON MAY 11, 1936. WHILE THE TIME WITHIN WHICH AN APPEAL MAY BE FILED HAS NOT YET EXPIRED, THE CENTRAL VERMONT RAILWAY, INC., HAS INDICATED THAT NO APPEAL WILL BE TAKEN AND THE DELAWARE AND HUDSON RAILROAD CORPORATION HAS NOW PAID OVERTIME INSPECTION BILLS TO THE AMOUNT OF $13,008.72 COVERING THE PERIOD SEPTEMBER 1932 TO JUNE 1936.

IT IS ESTIMATED THAT THE TOTAL AMOUNT DUE FROM THE THREE RAILROADS TO DATE IS APPROXIMATELY $60,000.00, ABOUT THREE-FOURTHS OF WHICH IS FOR OVERTIME SERVICES RENDERED PRIOR TO JULY 1, 1935, THE DATE ON WHICH THE PERMANENT APPROPRIATIONS REPEAL ACT WENT INTO EFFECT.

IN VIEW OF THE REQUIREMENT OF THE PERMANENT APPROPRIATIONS REPEAL ACT FOR THE DEPOSIT OF OVERTIME-SERVICE COLLECTIONS DIRECT TO MISCELLANEOUS RECEIPTS, INFORMATION IS DESIRED AS TO WHETHER THIS DEPARTMENT IS AUTHORIZED TO DEPOSIT TO THE CREDIT OF A SPECIAL FUND, RECOVERIES MADE FROM THE THREE RAILROADS MENTIONED FOR OVERTIME SERVICES RENDERED PRIOR TO JULY 1, 1935, AND APPROVE FOR PAYMENT FROM SUCH FUND, OVERTIME VOUCHERS IN FAVOR OF EMPLOYEES WHO PERFORMED THE OVERTIME SERVICES. IN THIS CONNECTION, ATTENTION IS RESPECTFULLY INVITED TO DECISION OF THE COMPTROLLER GENERAL DATED NOVEMBER 27, 1935 (15 C.G. 445).

THE AMOUNT CARRIED IN THE CURRENT APPROPRIATION FOR THE PAYMENT OF OVERTIME COMPENSATION IS NOT SUFFICIENT TO SATISFY CLAIMS ARISING PRIOR TO JULY 1, 1935, WHICH HAVE BEEN HELD IN ABEYANCE PENDING THE OUTCOME OF THE SUIT AND WHICH WILL NOW BE PRESENTED. CONSEQUENTLY, IT WILL BE NECESSARY TO SECURE A SUPPLEMENTAL APPROPRIATION TO MEET THESE CLAIMS IF IT IS NOT POSSIBLE TO PLACE THE FUNDS COLLECTED ON SPECIAL DEPOSIT AND PAY THE CLAIMS THEREFROM.

THE JUDGMENT OF THE COURT PROVIDED FOR THE RECOVERY OF THE FULL AMOUNT SUED FOR, PLUS INTEREST, AND INFORMATION IS REQUESTED AS TO WHETHER IT WILL BE PROPER TO PRORATE THE INTEREST COLLECTED AMONG THE EMPLOYEES WHO PERFORMED THE OVERTIME SERVICES IF PAYMENT IS MADE FROM A SPECIAL DEPOSIT ACCOUNT. IN THE EVENT IT IS NECESSARY TO SECURE A SUPPLEMENTAL APPROPRIATION FROM WHICH TO PAY THOSE CLAIMS, SHOULD THE PAYMENT OF INTEREST BE PROVIDED FOR?

WITH RESPECT TO YOUR FIRST QUESTION, SECTION 5 OF THE PERMANENT APPROPRIATION REPEAL ACT, 1934, 48 STAT. 1228, PROVIDES AS FOLLOWS:

(A) EFFECTIVE JULY 1, 1935, THE APPROPRIATION ACCOUNTS APPEARING ON THE BOOKS OF THE GOVERNMENT AND LISTED IN SUBSECTION (B) OF THIS SECTION ARE ABOLISHED, AND ANY UNOBLIGATED BALANCES UNDER SUCH ACCOUNTS AS OF THAT DATE SHALL BE COVERED INTO THE SURPLUS FUND OF THE TREASURY. ANY APPROPRIATIONS TO WHICH EXPENDITURES UNDER SUCH ACCOUNTS HAVE BEEN CHARGEABLE THERETOFORE ARE HEREBY REPEALED, EFFECTIVE ON SUCH DATE. THE EXTENT THAT THE ANNUAL APPROPRIATIONS, WHICH ARE HEREBY AUTHORIZED TO BE MADE FROM THE GENERAL FUND OF THE TREASURY FOR THE SAME PURPOSES FOR WHICH EXPENDITURES ARE NOW MADE FROM SAID ACCOUNTS, ARE INSUFFICIENT, THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED FROM THE GENERAL FUND OF THE TREASURY SUCH ADDITIONAL AMOUNTS AS MAY BE NECESSARY, TO THE EXTENT THAT THE AMOUNTS OF SUCH RECEIPTS ARE IN EXCESS OF THE AMOUNTS APPROPRIATED.

(B) (1) EXPENSES, COTTON STANDARDS ACT (3S535).

(2) CLASSIFICATION OF COTTON, REVOLVING FUND (3S320).

(3) EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE (6S803).

IT WAS HELD IN THE DECISION OF NOVEMBER 27, 1935, 15 COMP. GEN. 445, REFERRED TO IN YOUR SUBMISSION, THAT CERTAIN CLAIMS COVERING AMOUNTS DUE FOR OVERTIME SERVICES RENDERED BEFORE JULY 1, 1935, CONSTITUTED OBLIGATIONS UPON THE APPROPRIATION ACCOUNT "EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE" AND SHOULD BE PAID THEREUNDER NOTWITHSTANDING THE CLAIMS SETTLEMENTS WERE NOT ISSUED UNTIL AFTER THAT DATE. HOWEVER, THIS HOLDING WAS BASED UPON ALL THE CIRCUMSTANCES THERE SET FORTH, AS FOLLOWS:

IT APPEARS THAT IN THESE CLAIMS PAYMENTS WERE NOT MADE CURRENTLY BECAUSE THE STEAMSHIP OWNERS HAD DECLINED TO PAY THE COSTS FOR THE OVERTIME, THAT SUIT WAS NECESSARY TO RECOVER THE AMOUNTS, AND THAT THE PROCEEDS OF THE JUDGMENT WERE COVERED INTO THE CREDIT OF THE FUND NAMED BY CERTIFICATE OF DEPOSIT NO. 20, DATED JANUARY 24, 1935. FUNDS NECESSARY TO PAY THE CLAIMS THUS HAVING BECOME AVAILABLE, THE CLAIMS WERE PREPARED AND SUBMITTED IN DUE COURSE, SOME OF WHICH WERE SETTLED AND PAID PRIOR TO JULY 1, 1935, AND OTHERS, INCLUDING THE ONES TRANSMITTED BY YOUR LETTER, WERE NOT SETTLED UNTIL AFTER JULY 1, 1935.

SECTION 2 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, PROVIDES THAT THE EXTRA COMPENSATION FOR OVERTIME SERVICES AUTHORIZED BY SECTION 1 OF THE ACT "SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE * * * TO THE SECRETARY FO LABOR, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO * * *," AND IT HAS BEEN HELD THAT NO ADDITIONAL COMPENSATION FOR OVERTIME FOR WHICH TRANSPORTATION COMPANIES ARE LIABLE MAY BE PAID TO THE EMPLOYEES IN EXCESS OF THE AMOUNTS THUS COLLECTED BY THE SECRETARY OF LABOR. SEE 10 COMP. GEN. 487, 489. IN THE INSTANT CASE, IT APPEARS THAT NONE OF THE AMOUNTS FOR WHICH CLAIMS ARE NOW TO BE PRESENTED WAS COLLECTED, DEPOSITED, AND COVERED INTO THE TREASURY BEFORE JULY 1, 1935. HENCE, THESE CLAIMS DID NOT CONSTITUTE OBLIGATIONS UPON ANY AMOUNTS UNDER THE ACCOUNT "EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE" AS OF THAT DATE, SO AS TO PRECLUDE ANY OTHERWISE UNOBLIGATED BALANCES UNDER SAID ACCOUNT FROM BEING COVERED INTO THE SURPLUS FUND.

HOWEVER, IN VIEW OF THE FACT THAT THE ANNUAL APPROPRIATIONS AUTHORIZED BY SECTION 5 OF THE PERMANENT APPROPRIATION REPEAL ACT WAS INTENDED TO PROVIDE FOR THE SAME PURPOSES FOR WHICH EXPENDITURES WERE FORMERLY MADE FROM THE ACCOUNTS THEREIN ABOLISHED--- WITH AUTHORIZATION FOR NECESSARY ADDITIONAL APPROPRIATIONS TO THE EXTENT THAT RECEIPTS EXCEEDED APPROPRIATIONS--- AND SINCE IT MAY BE SAID THAT THE GOVERNMENT BECAME OBLIGATED AT THE MOMENT OF COLLECTING THESE LONG OVERDUE ACCOUNTS FROM THE TRANSPORTATION COMPANIES, TO PAY THE OVERTIME COMPENSATION TO THE OFFICERS AND EMPLOYEES WHO HAD RENDERED THE SERVICES, THE CLAIMS IN QUESTION, INSOFAR AS THEY REPRESENT SERVICES PERFORMED PRIOR TO JULY 1, 1935, MAY BE CONSIDERED AS OBLIGATIONS AGAINST THE FISCAL YEAR APPROPRIATION CURRENT AT THE TIME OF PAYMENT TO THE GOVERNMENT BY THE TRANSPORTATION COMPANIES. PAYMENT OF OVERTIME COMPENSATION FOR SERVICES RENDERED AFTER JULY 1, 1935, WILL, OF COURSE, BE EFFECTED UNDER THE FISCAL YEAR APPROPRIATION NORMALLY CHARGEABLE THEREWITH.

ACCORDINGLY, ANY AMOUNTS FOUND DUE ON SUCH CLAIMS WILL BE FOR CHARGING TO THE ANNUAL APPROPRIATION PROVIDED FOR SUCH EXPENDITURES UNDER "SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE" PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 5 OF THE PERMANENT APPROPRIATION REPEAL ACT, CURRENT AT THE TIME THE COLLECTION IS MADE FROM THE CARRIER, OR, IF SUCH APPROPRIATIONS BE EXHAUSTED, TO A SUPPLEMENTAL APPROPRIATION TO BE OBTAINED AS AUTHORIZED BY SAID SECTION. THERE WOULD BE NO AUTHORITY TO PLACE THE COLLECTIONS IN QUESTION IN A SPECIAL DEPOSIT ACCOUNT AND PAY THE CLAIMS THEREFROM WHETHER FOR SERVICES RENDERED BEFORE OR AFTER JULY 1, 1935--- SUCH COLLECTIONS BEING REQUIRED BY LAW TO BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. AS STATED BY THE SUPREME COURT OF THE UNITED STATES IN BOTANY WORSTED MILLS V. UNITED STATES, 278 U.S. 282, 289,"WHEN A STATUTE LIMITS A THING TO BE DONE IN A PARTICULAR MODE, IT INCLUDES THE NEGATIVE OF ANY OTHER MODE.'

WITH RESPECT TO YOUR QUESTION AS TO THE INCLUSION OF INTEREST IN THE AMOUNTS TO BE PAID THE EMPLOYEES WHO PERFORMED THE OVERTIME SERVICES, IT IS WELL SETTLED THAT THE UNITED STATES IS NOT LIABLE FOR INTEREST UNLESS SUCH LIABILITY IS PROVIDED BY STATUTE OR ASSUMED UNDER AN AUTHORIZED CONTRACTUAL AGREEMENT. SEE UNITED STATES EX REL. ANGARICA V. BAYARD, 127 U.S. 251, UNITED STATES V. WORLEY, 281 U.S. 339. IT APPEARS THAT THE SUIT AGAINST THE CENTRAL VERMONT RAILWAY, INC., WAS BROUGHT BY AND AT THE EXPENSE OF THE UNITED STATES, AND JUDGMENT WAS RENDERED IN FAVOR OF THE UNITED STATES, AND IT DOES NOT APPEAR THAT SUCH JUDGMENT PROVIDED FOR PAYMENT OF ANY INTEREST TO THE EMPLOYEES WHO RENDERED THE SERVICES. THEREFORE, THE EMPLOYEES MAY BE PAID ONLY THE COMPENSATION PROVIDED BY LAW AND REGULATION FOR THEIR OVERTIME SERVICES, AND THE AMOUNT COLLECTED AS INTEREST UNDER THE JUDGMENT SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS ON ACCOUNT OF "INTEREST ON DEFERRED COLLECTIONS OR PAYMENTS.'