A-83901, MARCH 5, 1937, 16 COMP. GEN. 813

A-83901: Mar 5, 1937

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NOTWITHSTANDING THEIR COMPENSATION IS IN EXCESS OF $2. PROVIDED THE APPOINTMENTS ARE WITHOUT COMPENSATION. THE LAW FURTHER PROVIDES THAT SUCH BOOKS SHALL BE ISSUED BY SHIPPING COMMISSIONERS AND COLLECTORS AND DEPUTY COLLECTORS OF CUSTOMS AT PORTS WHERE NO SHIPPING COMMISSIONERS HAVE BEEN APPOINTED. WHICH CERTIFICATES ARE ISSUED BY THE U.S. IT IS MADE A PENAL OFFENSE FOR ANYONE TO BE EMPLOYED ON BOARD A VESSEL OR TO SERVE ON BOARD A VESSEL IN ANY CAPACITY FOR WHICH A CERTIFICATE IS REQUIRED WITHOUT HAVING SUCH A CERTIFICATE. IN ORDER TO EXPEDITE AND FACILITATE THE WORK OF ISSUING THE DISCHARGE BOOKS AT PORTS WHERE NO SHIPPING COMMISSIONERS HAVE BEEN APPOINTED. LOCAL INSPECTORS ARE LOCATED.

A-83901, MARCH 5, 1937, 16 COMP. GEN. 813

APPOINTMENTS - INSPECTORS OF HULLS AS DEPUTY COLLECTORS OF CUSTOMS - SERVICES FOR MERCHANT SEAMEN INSPECTORS OF HULLS OF THE COMMERCE DEPARTMENT MAY BE APPOINTED AS DEPUTY COLLECTORS OF CUSTOMS FOR THE PURPOSE OF ISSUING "CONTINUOUS DISCHARGE BOOKS" TO SEAMEN ON MERCHANT VESSELS OF THE UNITED STATES AS REQUIRED BY SECTION 3 OF THE ACT OF JUNE 25, 1936, 49 STAT. 1934, NOTWITHSTANDING THEIR COMPENSATION IS IN EXCESS OF $2,500 PER ANNUM, PROVIDED THE APPOINTMENTS ARE WITHOUT COMPENSATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, MARCH 5, 1937:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 10, 1937, AS FOLLOWS:

UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 25, 1936, PUBLIC 808, 74TH CONGRESS, 49 STAT. 1934 (46 U.S.C. 643) EVERY SEAMAN ON A MERCHANT VESSEL OF THE UNITED STATES OF THE BURDEN OF 100 GRASS TONS OR UPWARD, EXCEPT VESSELS EMPLOYED EXCLUSIVELY IN TRADE ON THE NAVIGABLE RIVERS OF THE UNITED STATES, MUST BE FURNISHED WITH A BOOK TO BE KNOWN AS A CONTINUOUS DISCHARGE BOOK.

THE LAW FURTHER PROVIDES THAT SUCH BOOKS SHALL BE ISSUED BY SHIPPING COMMISSIONERS AND COLLECTORS AND DEPUTY COLLECTORS OF CUSTOMS AT PORTS WHERE NO SHIPPING COMMISSIONERS HAVE BEEN APPOINTED, IN SUCH MANNER AS THE DIRECTOR OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION, SUBJECT TO THE APPROVAL OF THE SECRETARY OF COMMERCE, SHALL DETERMINE.

THE ACT ALSO PROVIDES FOR CERTIFICATES OF SERVICE FOR THE VARIOUS RATINGS OF UNLICENSED PERSONNEL EMPLOYED ON VESSELS, WHICH CERTIFICATES ARE ISSUED BY THE U.S. LOCAL INSPECTORS OF STEAM VESSELS, AND IT IS MADE A PENAL OFFENSE FOR ANYONE TO BE EMPLOYED ON BOARD A VESSEL OR TO SERVE ON BOARD A VESSEL IN ANY CAPACITY FOR WHICH A CERTIFICATE IS REQUIRED WITHOUT HAVING SUCH A CERTIFICATE.

IN ORDER TO EXPEDITE AND FACILITATE THE WORK OF ISSUING THE DISCHARGE BOOKS AT PORTS WHERE NO SHIPPING COMMISSIONERS HAVE BEEN APPOINTED, BUT AT WHICH U.S. LOCAL INSPECTORS ARE LOCATED, THE SECRETARY OF THE TREASURY HAS ADVISED THE DEPARTMENT THAT HE IS AGREEABLE TO DESIGNATING THE INSPECTORS OF HULLS IN EACH OF SUCH PORTS AS DEPUTY COLLECTORS OF CUSTOMS, WITHOUT COMPENSATION, HIS AUTHORITY AS SUCH TO BE LIMITED TO THE ISSUANCE OF THE DISCHARGE BOOKS.

BEFORE TAKING FURTHER ACTION IN THIS MATTER YOUR EARLY DECISION WILL BE APPRECIATED AS TO WHETHER THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62), OR ANY OTHER STATUTE OF THE UNITED STATES, WOULD PROHIBIT THE DESIGNATION AS DEPUTY COLLECTORS OF CUSTOMS, WITHOUT COMPENSATION, AND FOR THE SOLE PURPOSE OF ISSUING CONTINUOUS DISCHARGE BOOKS, OF LOCAL INSPECTORS OF THIS DEPARTMENT WHO ARE FULL TIME INSPECTORS AND RECEIVE A SALARY AS SUCH IN EXCESS OF $2,500 PER ANNUM.

THE ACT OF JULY 31, 1894, 28 STAT. 205, REFERRED TO IN YOUR SUBMISSION, PROHIBITS ANY OFFICER OF THE UNITED STATES (WITH CERTAIN EXCEPTIONS) WHOSE SALARY AMOUNTS TO $2,500 PER ANNUM FROM HOLDING ANY OTHER GOVERNMENT OFFICE "TO WHICH COMPENSATION IS ATTACHED.' SAID ACT WOULD NOT, THEREFORE, BE APPLICABLE IF THE ADDITIONAL OFFICE CARRIES NO COMPENSATION. SECTION 2 OF THE TARIFF ACT OF 1922, AS AMENDED BY THE ACT OF JANUARY 13, 1925, 43 STAT. 748, AUTHORIZES THE SECRETARY OF THE TREASURY TO APPOINT DEPUTY COLLECTORS OF CUSTOMS "AND FIX THEIR COMPENSATION.' UPON A SIMILAR QUESTION WHETHER CLERKS IN THE INTERNAL REVENUE SERVICE MIGHT BE DESIGNATED AS DEPUTY COLLECTORS OF INTERNAL REVENUE WITHOUT ADDITIONAL COMPENSATION, SOLELY FOR THE PURPOSE OF QUALIFYING THEM TO ADMINISTER OATHS, IT WAS HELD BY THE FORMER COMPTROLLER OF THE TREASURY, 27 COMP. DEC. 131, THAT (QUOTING FROM THE SYLLABUS):

AN APPOINTMENT WITHOUT COMPENSATION ATTACHED TO AN OFFICE UNDER THE UNITED STATES THE COMPENSATION OF WHICH IS NOT FIXED BY LAW, WHICH IS ACCEPTED AND PROPERLY RECORDED, IS NOT A VIOLATION OF THE PROVISIONS OF SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, PROHIBITING ACCEPTANCE OF VOLUNTARY SERVICES BY THE GOVERNMENT, BUT IS VALID IF OTHERWISE LAWFUL.

THE ACT OF MARCH 1, 1879, 20 STAT. 329, PROVIDING THAT DEPUTY COLLECTORS OF INTERNAL REVENUE SHALL BE COMPENSATED FOR THEIR SERVICES BY SUCH ALLOWANCE AS SHALL BE MADE BY THE SECRETARY OF THE TREASURY UPON RECOMMENDATION OF THE COMMISSIONER OF INTERNAL REVENUE, IS SUFFICIENT AUTHORITY FOR THE COMMISSIONER TO RECOMMEND AND THE SECRETARY TO ALLOW AN APPOINTMENT TO SUCH OFFICE WITHOUT COMPENSATION IN THEIR DISCRETION, AND ANY PERSON THUS LEGALLY APPOINTED TO SERVE WITHOUT COMPENSATION IS CLOTHED BY SUCH APPOINTMENT WITH ALL THE POWER AND AUTHORITY FIXED BY LAW IN THAT OFFICE.

SEE, ALSO, 3 COMP. GEN. 955; 12 ID. 449; 16 ID. 55.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT NEITHER THE ACT OF JULY 31, 1894, NOR ANY OTHER STATUTE WOULD APPEAR TO PROHIBIT THE DESIGNATION OF INSPECTORS OF HULLS AS DEPUTY COLLECTORS OF CUSTOMS FOR THE PURPOSE OF ISSUING CONTINUOUS DISCHARGE BOOKS SO LONG AS SUCH DESIGNATION OR APPOINTMENT SPECIFICALLY STATES THAT THE APPOINTMENT IS WITHOUT COMPENSATION.