A-8086, APRIL 14, 1925, 4 COMP. GEN. 849

A-8086: Apr 14, 1925

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OF A CLERK OF THE DISTRICT COURT PENDING AN INVESTIGATION OF OFFICIAL MISCONDUCT WITHOUT STATING WHETHER THE SUSPENSION IS TO BE WITH OR WITHOUT PAY. IT IS ORDERED BY THE COURT THAT THE SAID CLERK BE. HE HEREBY IS. IT IS FURTHER ORDERED THAT THE ATTORNEY GENERAL FILE IN THIS COURT FORTHWITH FORMAL CHARGES AGAINST SAID CLERK. J. VANCE TO THE SENIOR CIRCUIT JUDGE FOR THE 5TH CIRCUIT IN ORDER THAT SUCH PROCEEDINGS MAY BE HAD AS ARE PROVIDED FOR IN SECTION 20 OF THE JUDICIAL CODE. IT IS FURTHER ORDERED THAT A CERTIFIED COPY OF THIS ORDER BE SENT TO THE ATTORNEY GENERAL BY J. WHEN THE NOTICE OF DISALLOWANCE OF SALARY FOR THE PERIOD IN QUESTION WAS CALLED TO THE ATTENTION OF THE JUDGE. THAT "IT WAS MY INTENTION AT THE TIME I ENTERED THE ORDER SUSPENDING MR.

A-8086, APRIL 14, 1925, 4 COMP. GEN. 849

COMPENSATION DURING SUSPENSION-CLERK OF DISTRICT COURT THE SUSPENSION FROM DUTY BY A UNITED STATES DISTRICT JUDGE, OF A CLERK OF THE DISTRICT COURT PENDING AN INVESTIGATION OF OFFICIAL MISCONDUCT WITHOUT STATING WHETHER THE SUSPENSION IS TO BE WITH OR WITHOUT PAY, FORFEITS THE PAY OF THE CLERK FOR THE PERIOD OF SUSPENSION AND NO SUBSEQUENT ORDER CAN OPERATE TO RESTORE PAY FOR ANY PERIOD OF SUSPENSION PRIOR TO THE ORDER.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 14, 1925:

THERE HAS BEEN RECEIVED THE APPLICATION OF DAVID MCDOWELL FOR REVIEW OF SETTLEMENT DATED SEPTEMBER 3, 1924, DISALLOWING HIS CLAIM, NO. 040861, IN THE AMOUNT OF $400 FOR SALARY AS CLERK OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI FOR THE PERIOD DECEMBER 22, 1923, TO JANUARY 27, 1924, DURING WHICH TIME HE HAD BEEN SUSPENDED FROM DUTY BY ORDER OF THE UNITED STATES DISTRICT JUDGE FOR THAT DISTRICT.

IT APPEARS THAT AS A RESULT OF CERTAIN CHARGES PREFERRED AGAINST HIM BY THE ATTORNEY GENERAL, AND PENDING AN INVESTIGATION OF SAID CHARGES, THE UNITED STATES DISTRICT JUDGE ISSUED THE FOLLOWING ORDER OF SUSPENSION: IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF

MISSISSIPPI IN RE CHARGES OF OFFICIAL MISCONDUCT AGAINST DAVID MCDOWELL, CLERK, AND HIS SUSPENSION OF REMOVAL.

THIS DAY UPON RECEIVING AND READING THE COMPLAINT OF THE HONORABLE H. M. DAUGHERTY, ATTORNEY GENERAL OF THE UNITED STATES, THAT DAVID MCDOWELL, CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, HAS BEEN GUILTY OF SERIOUS MISCONDUCT IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AS CLERK, IT IS ORDERED BY THE COURT THAT THE SAID CLERK BE, AND HE HEREBY IS, SUSPENDED, PENDING AN INVESTIGATION OF HIS SAID OFFICIAL CONDUCT AND THE CHARGES OF THE ATTORNEY GENERAL.

IT IS FURTHER ORDERED THAT THE ATTORNEY GENERAL FILE IN THIS COURT FORTHWITH FORMAL CHARGES AGAINST SAID CLERK, TOUCHING THE SAID MATTERS COMPLAINED OF BY HIM, TO THE END THAT ISSUES MAY BE MADE UP AND A TRIAL HAD UPON THE MERITS THEREOF, AND AN APPROPRIATE JUDGMENT ENTERED UPON SAID CHARGES.

THE JUDGE OF THIS COURT, NOT DEEMING IT PROPER FOR HIM TO SIT UPON THE TRIAL OF SAID CHARGES, DOTH HEREBY EXCUSE HIMSELF, AND DIRECTS THAT SAID FACT BE ENTERED OF RECORD AND AN AUTHENTICATED COPY OF THIS ORDER BE FORTHWITH CERTIFIED BY J. J. VANCE TO THE SENIOR CIRCUIT JUDGE FOR THE 5TH CIRCUIT IN ORDER THAT SUCH PROCEEDINGS MAY BE HAD AS ARE PROVIDED FOR IN SECTION 20 OF THE JUDICIAL CODE.

IT IS FURTHER ORDERED THAT A CERTIFIED COPY OF THIS ORDER BE SENT TO THE ATTORNEY GENERAL BY J. J. VANCE, DEPUTY CLERK.

ORDERED AND ADJUDGED THIS 21ST DAY OF DECEMBER, A.D. 1923.

(SIGNED) E. R. HOLMES,

U.S. DISTRICT JUDGE.

RECEIVED FILED DEC. 22, 1923.

(SIGNED) J. J. VANCE,

CHIEF DEPUTY CLERK.

RECORDED IN M.B. 19, ON PAGE 135.

WHEN THE NOTICE OF DISALLOWANCE OF SALARY FOR THE PERIOD IN QUESTION WAS CALLED TO THE ATTENTION OF THE JUDGE, HE STATED IN A LETTER ADDRESSED TO THE ATTORNEY GENERAL, UNDER DATE OF JANUARY 5, 1924, THAT "IT WAS MY INTENTION AT THE TIME I ENTERED THE ORDER SUSPENDING MR. MCDOWELL FOR HIM TO BE PAID DURING HIS PERIOD OF SUSPENSION.'

CLERKS OF DISTRICT COURTS ARE APPOINTED BY THE RESPECTIVE DISTRICT JUDGES. SEE ACT OF MARCH 3, 1911, 36 STAT. 1087. ALSO PAR. 760 OF CURRENT INSTRUCTIONS TO MARSHALS, ATTORNEYS, CLERKS, AND COMMISSIONERS.

IN MECHEM ON PUBLIC OFFICERS, SECTION 445, IT IS SAID:

WHERE, THEREFORE, THE TENURE OF OFFICE IS NOT FIXED BY LAW AND NO OTHER PROVISION IS MADE FOR REMOVALS EITHER BY THE CONSTITUTION OR BY STATUTES, IT IS SAID TO BE "A SOUND AND NECESSARY RULE TO CONSIDER THE POWER OF REMOVAL AS INCIDENT TO THE POWER OF APPOINTMENT.' CITING SMITH V. BROWN, 59 CAL. 672; PATTEN V. VAUGHN, 39 ARK. 211.

THE SAME PRINCIPLE IS UPHELD BY THROOP IN HIS WORK ON PUBLIC OFFICERS. IN SECTION 354, HE SAYS:

THE GENERAL RULE IS, THAT WHERE A DEFINITE TERM OF OFFICE IS NOT FIXED BY LAW, THE OFFICER OR OFFICERS, BY WHOM A PERSON WAS APPOINTED TO A PARTICULAR OFFICE, MAY REMOVE HIM AT PLEASURE, AND WITHOUT NOTICE, CHARGES, OR REASONS ASSIGNED * * *.

CITING CARR V. STALE, 111 IND. 101; STALE V. BARROW, 29 LA.ANN. 243; PEOPLE V. ROBB, 126 N.Y. 180, AND OTHER CASES.

AS TO THE MATTER OF COMPENSATION OR PAY UNDER SUCH CONDITIONS, IT IS SAID, IN SECTION 870, MECHEM ON PUBLIC OFFICERS:

THE RIGHT TO RECEIVE OR RECOVER SALARY OR OTHER COMPENSATION ATTACHED TO AN OFFICE BEING VESTED IN HIM WHO IS BY LAW THE DULY CHOSEN AND QUALIFIED INCUMBENT OF IT, IT FOLLOWS NECESSARILY THAT WHEN THE RIGHT OF THE OFFICER TO THE OFFICE CEASES, EITHER THROUGH HIS RESIGNATION, REMOVAL, MISCONDUCT, OR ABANDONMENT, HIS RIGHT TO LONGER RECEIVE THE COMPENSATION THEREUPON CEASES ALSO.

IN SECTION 864, THE SAME AUTHOR SAYS:

AN OFFICER WHO HAS BEEN * * * SUSPENDED FROM HIS OFFICE IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD DURING WHICH HE WAS SUSPENDED, EVEN THOUGH IT BE SUBSEQUENTLY DETERMINED THAT THE CAUSE FOR WHICH HE WAS SUSPENDED WAS INSUFFICIENT.

THE REASON GIVEN IS--- THAT SALARY AND PREREQUISITES ARE THE REWARD OF EXPRESS OR IMPLIED SERVICES, AND THEREFORE CAN NOT BELONG TO ONE WHO COULD NOT LAWFULLY PERFORM SUCH SERVICES.

IT HAS BEEN HELD BY THE COMPTROLLER OF THE TREASURY, AND BY THIS OFFICE, THAT WHERE THE HEAD OF AN EXECUTIVE DEPARTMENT AS AN INCIDENT TO THE POWER OF APPOINTMENT AND REMOVAL SUSPENDS AN EMPLOYEE FROM DUTY PENDING THE INVESTIGATION OF CHARGES OF OFFICIAL MISCONDUCT THE PAY OF THE EMPLOYEE FOR THE PERIOD OF SUSPENSION IS FORFEITED; AND THAT NO ORDER CAN OPERATE RETROACTIVELY TO RESTORE PAY FOR ANY PERIOD OF SUSPENSION. 21 COMP. DEC. 478; 20 ID. 505; 11 ID., 661. A SUSPENDED OFFICER OR EMPLOYEE IS IN A NONPAY STATUS FOR THE PERIOD OF SUSPENSION WHETHER THE ORDER OF SUSPENSION SPECIFICALLY STATES THAT IT SHALL BE WITHOUT PAY, OR IS MERELY SILENT UPON THE QUESTION. 11 COMP. DEC. 661. SEE ALSO 25 COMP. DEC. 996.

THE ORDER ISSUED BY THE COURT WAS SILENT UPON THE QUESTION OF PAYMENT OF COMPENSATION DURING THE PERIOD OF SUSPENSION, AND THE JUDGE'S SUBSEQUENT STATEMENT THAT IT WAS HIS INTENTION AT THE TIME HE ISSUED THE ORDER FOR THE CLERK TO BE PAID DURING THE PERIOD OF SUSPENSION CAN NOT NOW BE ACCEPTED AND APPLIED RETROACTIVELY TO AN OFFICIAL ACT OF THE COURT. THE QUESTION AS TO WHETHER HE WOULD HAVE BEEN ENTITLED TO PAY DURING THE PERIOD OF SUSPENSION IF THE COURT'S ORDER OF SUSPENSION HAD SPECIFICALLY STATED THAT THE SUSPENSION WOULD BE WITH FULL PAY IS NOT HERE INVOLVED AND NO OPINION THEREON IS EXPRESSED.