A-93726, APRIL 6, 1939, 18 COMP. GEN. 768

A-93726: Apr 6, 1939

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" AND MANNER OF SALARY LIMITATION COMPUTATION WHERE AN OFFICER'S OR EMPLOYEE'S COMPENSATION IS COMPUTED ON ANY OTHER BASIS THAN THE YEAR IT IS NECESSARY. - IS FOR COMPUTATION ON THE BASIS OF 365 DAYS. IS "SALARY" AND NOT A "FEE" FOR PURPOSES OF THE DUAL COMPENSATION PROHIBITION ACT OF MAY 10. PAYMENT IS NOT AUTHORIZED OF SALARY AS LIBRARIAN PAID FROM THE ALASKA "C" FUND AND SALARY AS BAILIFF OF UNITED STATES DISTRICT COURT IN ALASKA WHERE THE RATE PER ANNUM OF THE COMBINED SALARIES EXCEEDS THE MAXIMUM OF $2. 1939: THERE WAS RECEIVED LETTER OF YOUR ADMINISTRATIVE ASSISTANT. FOR WHICH SERVICE HE WAS PAID BY THE CLERK FROM FUND "C. FOR WHICH HE WAS PAID BY THE MARSHAL IN THE USUAL MANNER FROM THE APPROPRIATION "PAY OF BAILIFFS.

A-93726, APRIL 6, 1939, 18 COMP. GEN. 768

COMPENSATION - DOUBLE - COURT BAILIFFS - "SALARY" AS DISTINGUISHED FROM "FEES," AND MANNER OF SALARY LIMITATION COMPUTATION WHERE AN OFFICER'S OR EMPLOYEE'S COMPENSATION IS COMPUTED ON ANY OTHER BASIS THAN THE YEAR IT IS NECESSARY, IN APPLYING THE DUAL COMPENSATION PROHIBITION STATUTE OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, TO DETERMINE THE PER ANNUM EQUIVALENT OF THE RATE, THE RATE PER ANNUM OF THE COMBINED SALARIES, AND NOT THE AGGREGATE AMOUNT ACTUALLY RECEIVED DURING A PORTION OF THE YEAR, BEING DETERMINATIVE OF WHETHER THERE HAS BEEN A VIOLATION OF THE SAID STATUTES. AS COURT BAILIFFS MAY RECEIVE PER DIEM COMPENSATION FOR SUNDAYS AND HOLIDAYS, THE EQUIVALENT PER ANNUM RATE OF COMPENSATION FOR DUAL COMPENSATION ACT PROHIBITION DETERMINATION PURPOSES--- ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582 --- IS FOR COMPUTATION ON THE BASIS OF 365 DAYS. THE PER DIEM COMPENSATION OF COURT BAILIFFS FIXED PURSUANT TO STATUTE, AND ON THE BASIS OF SERVICES BY THE DAY AND NOT THE AMOUNT OF SERVICES RENDERED, IS "SALARY" AND NOT A "FEE" FOR PURPOSES OF THE DUAL COMPENSATION PROHIBITION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582. TYPES OF COMPENSATION HELD TO BE FEES IN 22 COMP. DEC. 678; ID. 693; 24 ID 532; 2 COMP. GEN. 37; 3 ID. 563; ID. 1012; AND 16 ID. 909; DISTINGUISHED. PAYMENT IS NOT AUTHORIZED OF SALARY AS LIBRARIAN PAID FROM THE ALASKA "C" FUND AND SALARY AS BAILIFF OF UNITED STATES DISTRICT COURT IN ALASKA WHERE THE RATE PER ANNUM OF THE COMBINED SALARIES EXCEEDS THE MAXIMUM OF $2,000 PER ANNUM FIXED BY THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, APRIL 6, 1939:

THERE WAS RECEIVED LETTER OF YOUR ADMINISTRATIVE ASSISTANT, DATED DECEMBER 20, 1938, FORWARDING FOR MY ATTENTION AND CONSIDERATION A PHOTOSTAT COPY OF LETTER DATED DECEMBER 2, 1938, FROM THE HON. GEORGE F. ALEXANDER, JUDGE OF THE UNITED STATES DISTRICT COURT, FIRST DIVISION, TERRITORY OF ALASKA, AS FOLLOWS:

THE MARSHAL HAS CALLED TO MY ATTENTION YOUR LETTER TRANSMITTING THEREWITH A PHOTOSTATIC COPY OF A LETTER DATED OCTOBER 11, 1938, FROM HON. R. N. ELLIOTT, ACTING COMPTROLLER GENERAL, STATING THAT AN EXAMINATION OF THE ACCOUNTS AND RECORDS OF YOUR OFFICE DISCLOSES THE FACT THAT CARL D. HUPP RECEIVED DUAL COMPENSATION IN EXCESS OF $2,000.00 PER ANNUM, CONTRARY TO LAW, HAVING BEEN EMPLOYED BOTH AS LIBRARIAN, FOR WHICH SERVICE HE WAS PAID BY THE CLERK FROM FUND "C," AND AS BAILIFF, FOR WHICH HE WAS PAID BY THE MARSHAL IN THE USUAL MANNER FROM THE APPROPRIATION "PAY OF BAILIFFS, TC., U.S. COURTS," AND DIRECTING THE MARSHAL TO COLLECT FROM MR. HUPP THE OVERPAYMENT.

BECAUSE I FEEL SOME PERSONAL RESPONSIBILITY FOR WHATEVER CONFUSION HAS RESULTED IN THIS MATTER, I AM TAKING THE LIBERTY OF REPLYING THERETO, IN AN EFFORT TO CLEAR UP THIS SITUATION, WHICH APPEARS TO HAVE RESULTED FROM A MISUNDERSTANDING OF MY ACTIONS AND OF THE SITUATION GENERALLY.

TO BEGIN WITH, I APPOINTED MR. HUPP LIBRARIAN, AND WITH THE CONSENT OF THE ATTORNEY GENERAL, FIXED HIS COMPENSATION AS SUCH. IT WAS ALSO AT MY REQUEST THAT MR. HUPP HAS ACTED AS BAILIFF FOR THE COURT WHEN NO DEPUTY MARSHALS WERE AVAILABLE FOR THAT PURPOSE. IN DOING THIS I FOLLOWED THE SAME PROCEDURE THAT I HAVE FOLLOWED FOR MORE THAN THREE YEARS PREVIOUSLY IN HANDLING WHAT WOULD OTHERWISE BE A MOST DIFFICULT, IF NOT IMPOSSIBLE, SITUATION. WE HAVE NO SALARIED BAILIFFS, NOR ANY REGULARLY DESIGNATED BAILIFFS IN THIS DIVISION, NOR ANYWHERE IN THE TERRITORY, SO FAR AS I KNOW, AS THEY HAVE IN THE UNITED STATES DISTRICT COURTS IN THE "STATES," NOR HAVE WE EVER HAD, DURING MY INCUMBENCY ON THE BENCH HERE. I HAVE BEEN OBLIGED TO CALL IN PARTIES FROM TIME TO TIME TO ACT AS BAILIFFS AS NEEDED. THIS, AS YOU KNOW, CREATES A VERY AWKWARD SITUATION. TO AVOID, INSOFAR AS POSSIBLE, THE RESULTING CONFUSION AND DELAY IN HUNTING UP SOME PERSON TO ACT AS BAILIFF WHEN NEEDED, I ADOPTED THE PLAN SOON AFTER TAKING THE BENCH HERE, OF APPOINTING A YOUNG LAW STUDENT AS LIBRARIAN AND BECAUSE THE FUNDS AVAILABLE FOR THAT PURPOSE WERE NOT SUFFICIENT TO PAY HIM MORE THAN A MERE PITTANCE, AND TO AVOID, INSOFAR AS POSSIBLE, THE CONFUSION AND DELAY IN HAVING TO LOOK UP A BAILIFF WHEN NO DEPUTY MARSHALS WERE AVAILABLE FOR THAT PURPOSE, I ALSO HAD THE LIBRARIAN ACT AS BAILIFF FOR THE COURT WHEN NEEDED. BY THIS PLAN I WAS ABLE TO SUPPLEMENT THE COMPENSATION OF THE LIBRARIAN AND MAKE IT POSSIBLE TO SECURE A REASONABLY EFFICIENT LIBRARIAN WITHOUT ANY ADDITIONAL COST TO THE GOVERNMENT, AND TO HAVE A BAILIFF AVAILABLE WHEN NEEDED; AND THIS ARRANGEMENT SEEMED ABOUT THE ONLY WORKABLE ARRANGEMENT THAT COULD BE MADE. IT IS IMPOSSIBLE TO HAVE A PERSON REPORT DAILY FOR BAILIFF DUTY IN THE HOPE THAT HE MAY BE CALLED UPON WHEN HE CANNOT BE EMPLOYED MORE THAN FIVE OR TEN DAYS IN A MONTH, AND NEITHER I NOR THE MARSHAL CAN TELL WHEN DEPUTY MARSHALS WILL BE AVAILABLE FOR THAT PURPOSE, HENCE I HAVE ADOPTED THE PLAN OF USING MY LIBRARIAN AS AN EMERGENCY BAILIFF, IN AN ATTEMPT TO SOLVE WHAT APPEARS TO BE AN OTHERWISE IMPOSSIBLE SITUATION.

THIS SAME QUESTION WAS RAISED OVER FOUR YEARS AGO BY THE GENERAL ACCOUNTING OFFICE, UNDER IDENTICAL CIRCUMSTANCES, WHEN MELVIN GRIGSBY WAS ACTING BOTH AS LIBRARIAN AND EMERGENCY BAILIFF, AND THEN APPROVED, AND HAS BEEN FOLLOWED BY ME EVER SINCE WITHOUT OBJECTION FROM EITHER THE ATTORNEY GENERAL OR THE GENERAL ACCOUNTING OFFICE.

FURTHERMORE, IT APPEARS THAT THE ACTING COMPTROLLER GENERAL'S INDICATED RULING IN THIS MATTER IS CONTRARY TO BOTH THE LAW AND THE PREVIOUS RULINGS OF THE COMPTROLLER GENERAL COVERING SITUATIONS OF THIS CHARACTER.

THE LAW QUOTED BY THE ACTING COMPTROLLER GENERAL, VIZ, U.S.C. 5:58, PROVIDES THAT,"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY, WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000.00 PER ANNUM.'

IT WILL BE NOTED THAT THE ABOVE ACT IS APPLICABLE ONLY TO ("SALARY") SALARIES,"WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000.00 PER ANNUM.'

THIS IMMEDIATELY RAISES THE QUESTION OF,"WHAT IS "SALARY," AS USED IN THE ACT?

AS DEFINED BY WEBSTER,"SALARY" IS "THE RECOMPENSE OR STIPULATION PAID, OR STIPULATED TO BE PAID, TO A PERSON AT REGULAR INTERVALS FOR SERVICES, AND ESPECIALLY TO HOLDERS OF OFFICIAL, EXECUTIVE OR CLERICAL POSITIONS, FIXED COMPENSATIONS REGULARLY PAID, AS BY THE YEAR, QUARTER, MONTH OR WEEK.' (WEBSTER'S NEW INT. DICTIONARY, 2D.ED.).

THE SUPREME COURT OF THE UNITED STATES HAS HELD: "THE WORD "SALARY" MAY BE DEFINED GENERALLY, AS A FIXED ANNUAL OR PERIODICAL PAYMENT FOR SERVICES DEPENDING UPON TIME AND NOT THE AMOUNT OF SERVICES RENDERED.'

IN THIS CASE THE COURT HELD THAT EXTRA COMPENSATION RECEIVED BY A DISTRICT JUDGE FOR HOLDING COURT OUTSIDE OF HIS OWN DISTRICT IS NO PART OF HIS OFFICIAL SALARY, OR RECOVERABLE AS SUCH UNDER THE PROVISIONS OF THE RETIREMENT ACT. (BENEDICT V. U.S., 176 U.S. 357-360).

"WORDS AND PHRASES" (77 ATL. 844) SAYS,"THE WORD "SALARY" IMPORTS A SPECIFIC CONTRACT FOR A SPECIFIC SUM FOR A SPECIFIED PERIOD OF TIME, WHILE "FEES" ARE COMPENSATION FOR PARTICULAR ACTS, AND "WAGES" ARE COMPENSATION BY THE DAY OR WEEK.'

AGAIN,"WORDS AND PHRASES" IN DEFINING "FEES," SAYS,"SALARY IS A FIXED COMPENSATION FOR REGULAR WORK, WHILE "FEES, ARE COMPENSATION FOR PARTICULAR SERVICES RENDERED AT IRREGULAR PERIODS, PAYABLE AT THE TIME THE SERVICES ARE RENDERED.'

IT HAS BEEN REPEATEDLY HELD BY THE COMPTROLLER GENERAL THAT THE ELEMENT OF TIME AND A FIXED PAYMENT FOR A DEFINITE PERIOD ARE ESSENTIAL FEATURES OF ALL LEGAL DEFINITIONS OF THE WORD "SALARY" AS USED IN THE ACT OF MAY 10, 1916 AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39TH STAT. 120, 582; AND THAT COMPENSATION CONSISTING OF FEES DEPENDENT UPON AND PAYABLE ONLY FOR SERVICES AS RENDERED DOES NOT CONSTITUTE "SALARY" AND DOES NOT BAR THE RECIPIENT FROM ALSO RECEIVING A SALARY FROM ANOTHER GOVERNMENT POSITION. (22 C.D. 693; 22 C.D. 678; 24 C.D. 532.)

IN THE LAST DECISION ABOVE CITED THE COMPTROLLER HELD:

"THE DOUBLE COMPENSATION ACTS (39 STAT. 129; 582) HAVE NO APPLICATION TO A CASE WHERE THE ADDITIONAL COMPENSATION INVOLVED IS NOT A FIXED SALARY BUT IS DEPENDENT SOLELY UPON FEES.'

AGAIN, IN 3 DEC. OF THE COMP. GEN. FEES FOR X-RAY EXAMINATIONS OF POLICEMEN AND FIREMEN IN THE DISTRICT OF COLUMBIA, INJURED IN THE PERFORMANCE OF THEIR DUTY, AGGREGATING AN INDEFINITE AND UNDETERMINED AMOUNT PER ANNUM, BEING DEPENDENT ENTIRELY UPON CONTINGENCIES WITHOUT THE CONTROL OF THE GOVERNMENT OR THE EMPLOYEES, ARE NOT "SALARY" WITHIN THE MEANING OF THE ACT OF MAY 16TH, 1920, 39TH STAT. 120, AND MAY BE PAID TO A PHYSICIAN REGULARLY EMPLOYED BY THE DISTRICT OF COLUMBIA AT AN ANNUAL SALARY TO RENDER EXPERT SERVICE AT CERTAIN DISEASE CLINICS, THE AGGREGATE OF THE SALARY AND FEES BEING IMMATERIAL.

IT APPEARED IN THAT CASE THAT DR. MERRILL WAS PAID AN ANNUAL SALARY OF $600.00 FOR SERVICES WITH THE HEALTH DEPARTMENT, AND FEES FOR X-RAY EXAMINATIONS AVERAGING FROM $2,000.00 TO $2,500.00 PER ANNUM ADDITIONAL, DEPENDING ON THE NUMBER OF X-RAY EXAMINATIONS MADE; AND THE QUESTION OF THE LEGALITY OF THE PAYMENT, DIRECTLY CHALLENGED UNDER THE SAME ACT AS THAT QUOTED BY THE ACTING COMPTROLLER GENERAL HERE.

THERE THE COMPTROLLER FOUND:

"BOTH CLASSES OF PAYMENTS TO DR. MERRILL ARE MADE FROM APPROPRIATED MONEY WITHIN THE MEANING OF THE ACT. THE PAYMENT OF $600.00 FOR SERVICES WITH THE HEALTH DEPARTMENT IS CLEARLY "SALARY" WITHIN THE MEANING OF THE ACT; THE PAYMENT OF AN INDEFINITE AND UNDETERMINED TOTAL AGGREGATE AMOUNT PER ANNUM MADE UP OF CHARGES FOR SEPARATE SERVICES DEPENDENT ENTIRELY UPON THE CONTINGENCIES WITHOUT THE CONTROL OF THE GOVERNMENT OR THE EMPLOYEE, IS NOT "SALARY" WITHIN THE MEANING OF THE STATUTE. SUCH PAYMENTS ARE CLASSED AS FEES FOR PROFESSIONAL SERVICES AND THE ANNUAL AGGREGATE TOTAL OF SUCH FEES DOES NOT COME WITHIN THE STATUTE AGAINST THE PAYMENT OF TWO SALARIES AGGREGATING MORE THAN $2,000.00. AS DR. MERRILL'S DUTIES WITH THE HEALTH DEPARTMENT DO NOT REQUIRE HIM TO PERFORM THE OTHER SERVICES FOR THE POLICE AND FIRE DEPARTMENTS, AND AS THE TWO POSITIONS ARE SEPARATE AND DISTINCT, WITH COMPENSATION FIXED FOR EACH, HIS EMPLOYMENT IN BOTH CAPACITIES AND PAYMENT THEREFOR OF AMOUNTS AGGREGATING IN EXCESS OF $2,000.00 IS AUTHORIZED.'

AGAIN, IN 3 DEC. OF THE COMP. GEN. 1012:

THERE, THE QUESTION FOR CONSIDERATION WAS THE RIGHT OF MR. MCLEOD TO RETAIN COMPENSATION RECEIVED BY HIM WHILE HE WAS HOLDING OFFICE BOTH AS UNITED STATES COMMISSIONER AND REGISTER AND RECEIVER OF THE UNITED STATES LAND OFFICE AT CAMDEN, ARK., UNDER THE ACT IN QUESTION. AFTER QUOTING THE ACT IN QUESTION THE COMPTROLLER SAYS:

"THE COMPENSATION PAYABLE TO THE REGISTER AND RECEIVER OF THE UNITED STATES LAND OFFICE IS FIXED BY SECTION 2237, REV.STAT. AT $500.00 PER ANNUM, PLUS CERTAIN AUTHORIZED FEES AND COMMISSIONS, A MAXIMUM OF $3,000.00 BEING FIXED BY SECTION 2240. THE COMPENSATION OF THE UNITED STATES COMMISSIONER CONSISTS ENTIRELY OF FEES AUTHORIZED BY SECTION 21 OF THE ACT OF MAY 28, 96.'

IT HAS BEEN REPEATEDLY HELD BY THIS OFFICE THAT THE ELEMENT OF TIME AND A FIXED PAYMENT FOR A DEFINITE PERIOD ARE ESSENTIAL FEATURES OF ALL DEFINITIONS OF THE WORD "SALARY" AS USED IN THE ACT OF MAY 10, 1916, SUPRA, AND THAT COMPENSATION CONSISTING OF FEES DEPENDENT UPON AND PAYABLE ONLY FOR SERVICES AS RENDERED, DOES NOT CONSTITUTE "SALARY" AND DOES NOT BAR THE RECIPIENT FROM ALSO RECEIVING A SALARY FROM ANOTHER GOVERNMENT POSITION. SEE 22 C.D. 693, AS TO NOTARIAL FEES; 24 C.D. 532, AS TO FEES RECEIVED BY CLERKS OF COURTS; 2 C.G. 37, REGARDING SURGEON'S FEES; AND 3 C.G. 363 AS TO X-RAY FEES. THERE IS NO DOUBT, THEREFORE, THAT THE ACT OF MAY 10, 1916, SUPRA, DOES NOT PRECLUDE THE RECEIPT BY ONE PERSON AT THE SAME TIME OF A SALARY AS REGISTER AND RECEIVER OF THE U.S. LAND OFFICE AND FEES AS UNITED STATES COMMISSIONER, IRRESPECTIVE OF THEIR AGGREGATE AMOUNT.

FURTHERMORE, THE "SALARY" RECEIVED BY MR. HUPP, AS LIBRARIAN, IS NOT A SALARY FIXED BY LAW, BUT COMPENSATION FIXED BY ORDER OF THE JUDGE AND APPROVED BY THE ATTORNEY GENERAL, WHICH WAS DONE.

FINALLY, THIS SAME PROCEDURE HAS BEEN FOLLOWED BOTH AS TO MR. HUPP AND HIS PREDECESSOR SINCE 1933, AND SPECIFICALLY APPROVED BY THE ATTORNEY GENERAL BY A TELEGRAM DATED JULY 6, 1934, SIGNED STEWART, ADMINISTRATIVE ASSISTANT, ADDRESSED TO ME IN ANSWER TO MY LETTER OF JUNE 26, 1934, DETAILING THE PROCEDURE THERETOFORE FOLLOWED.

I MIGHT ALSO ADD THAT THE AMOUNTS RECEIVED BY MR. HUPP AS BAILIFF FROM JANUARY 1937 TO AND INCLUDING AUGUST 1938, AND COVERING A YEAR AND EIGHT MONTHS, ONLY AMOUNT TO $591.00 AND HIS ,SALARY" AS LIBRARIAN ONLY $50.00 A MONTH UP TO AUGUST 1ST, 1938, AND DURING AUGUST, $75.00 PER MONTH, SO THAT HIS AGGREGATE COMPENSATION FOR BOTH POSITIONS FOR THE FIRST SEVENTEEN MONTHS IN QUESTION, OR UP UNTIL AUGUST 1ST, 1938, AMOUNTED TO ONLY A FRACTION MORE THAN $83.00 PER MONTH, AND DURING AUGUST 1938, TO $75.00 AS LIBRARIAN AND $35.00 AS SPECIAL BAILIFF, OR $110.00 A MONTH, AND THAT NEITHER ONE WOULD AGGREGATE ANYTHING IN THE NEIGHBORHOOD OF THE $2,000.00 PER ANNUM MENTIONED IN THE STATUTE, AND IT APPEARS TO ME TO BE MANIFESTLY UNFAIR TO ASK MR. HUPP TO REIMBURSE THE TREASURY FOR ANY AMOUNT AFTER THE SAME PRACTICE HAS BEEN APPROVED AND FOLLOWED FOR MORE THAN FIVE YEARS AND HIS ACCOUNTS REGULARLY AUDITED AND APPROVED AND PAID TO HIS PREDECESSOR FOR OVER THREE YEARS AND TO HIMSELF FOR MORE THAN EIGHTEEN MONTHS BEFORE ANY QUESTION WAS RAISED IN REGARD THERETO.

CARL D. HUPP WAS EMPLOYED AS LIBRARIAN OF THE UNITED STATES COURT AT JUNEAU, ALASKA, AT THE RATE OF $50 PER MONTH ($600 PER ANNUM) FROM MAY 1, 1935, TO JULY 31, 1938, AND ON AND AFTER AUGUST 1, 1938, AT THE RATE OF $75 PER MONTH ($900 PER ANNUM). SEE SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763.

DURING THE QUARTER ENDED MARCH 31, 1937, MR. HUPP ALSO WAS EMPLOYED AS BAILIFF ON 48 DAYS AT THE RATE OF $4.50 PER DIEM AND DURING THE QUARTERS ENDED DECEMBER 31, 1937, JUNE 30, 1938, AND SEPTEMBER 30, 1938, HE WAS EMPLOYED AS BAILIFF ON 75 DAYS AT THE RATE OF $5 PER DAY, A TOTAL OF 123 DAYS, RECEIVING A TOTAL OF $591. AS BAILIFFS MAY RECEIVE PER DIEM COMPENSATION FOR SUNDAYS AND HOLIDAYS UNDER CERTAIN CONDITIONS (SEE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF JUSTICE, ITEM ENTITLED "SALARIES AND EXPENSES OF BAILIFFS, AND SO FORTH," ACT OF APRIL 27, 1938, 52 STAT. 268), THE EQUIVALENT PER ANNUM RATE OF COMPENSATION OF BAILIFFS SHOULD BE COMPUTED ON THE BASIS OF 365 DAYS PER YEAR. ON THIS BASIS THE EQUIVALENT PER ANNUM RATE OF $4.50 PER DIEM IS $1,642.50, AND AT $5 PER DIEM IS $1,825. EITHER OF THESE ANNUAL RATES COMBINED WITH EITHER $600 OR $900 PER ANNUM RECEIVED AS LIBRARIAN EXCEEDS THE MAXIMUM OF $2,000 PER ANNUM FIXED BY THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDING AS FOLLOWS: THAT UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, * * *

THERE IS NO QUESTION BUT THAT THE COMPENSATION PAID AS LIBRARIAN IS SALARY. THE COMPENSATION IS COMPUTED ON A TIME BASIS AND PAID FROM THE ALASKA "C" FUND PROVIDED IN TERMS OF AN APPROPRIATION. SEE 3 COMP. GEN. 190; ID. 468; 12 ID. 344.

UNDER SECTION 715, REVISED STATUTES, AND ACT OF MARCH 3, 1905, 33 STAT. 1259 (28 U.S.C. 595), THE COMPENSATION OF BAILIFFS IS FIXED ON A PER DIEM BASIS. SEE ALSO, INSTRUCTIONS TO UNITED STATES MARSHALS, JULY 1, 1934, SECTION 630, PAGE 117. IT IS UNDERSTOOD THE PRESENT RATE IS $5 PER DIEM AS FIXED IN DEPARTMENT OF JUSTICE ORDER NO. 3009 DATED JULY 30, 1937. IS PERTINENT TO NOTE THAT THE RATE FIXED IN THE ORDER IS FOR "COMPENSATION OF BAILIFFS"--- AND NOT AS FEES--- AND THE APPROPRIATION MADE FOR PAYMENT OF SUCH COMPENSATION REFERS TO SAME AS "SALARY.' SEE APPROPRIATION ACT, 52 STAT. 268, SUPRA. JUDGE ALEXANDER IS CONTENDING THAT THIS PER DIEM COMPENSATION IS A FEE, NOT SALARY, AND, THEREFORE, NOT WITHIN THE RESTRICTION OF THE DUAL COMPENSATION ACT OF 1916.

IT IS TRUE, AS JUDGE ALEXANDER STATES, IF AN EMPLOYEE IS PAID ON A FEE BASIS, AS DISTINGUISHED FROM A SALARY BASIS, IN EITHER OF THE POSITIONS OR EMPLOYMENTS, THE DUAL COMPENSATION STATUTE OF 1916 DOES NOT APPLY. HOWEVER, HE HAS ATTEMPTED TO SHOW THAT THE PER DIEM COMPENSATION OF BAILIFFS FIXED PURSUANT TO STATUTE IS A "FEE" ON THE BASIS OF A DEFINITION OF "SALARY" APPEARING IN THE DECISION OF THE SUPREME COURT IN THE CASE OF BENEDICT V. UNITED STATES, 176 U.S. 357, AND ON THE HOLDINGS MADE IN THREE DECISIONS OF FORMER COMPTROLLERS OF THE TREASURY, VIZ, 22 COMP. DEC. 678; ID 693; AND 24 ID. 532, AND THREE DECISIONS OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, VIZ, 2 COMP. GEN. 37; 3 ID. 563; ID. 1012.

IN NONE OF THESE DECISIONS WAS THERE INVOLVED COMPENSATION FIXED ON A PER DIEM BASIS. THE SUPREME COURT HAD UNDER CONSIDERATION THE QUESTION WHETHER A DISTRICT JUDGE, PAID ON AN ANNUAL BASIS, WAS ENTITLED TO EXTRA COMPENSATION FOR HOLDING COURT OUTSIDE OF HIS OWN DISTRICT AND THE DEFINITION OF "SALARY" QUOTED IN THE LETTER OF JUDGE ALEXANDER, WAS GIVEN WITH PARTICULAR REFERENCE TO THAT CASE. EVEN SO, THE DEFINITION OF THE COURT DID NOT STATE THAT PER DIEM COMPENSATION WAS NOT "SALARY," BUT ON THE CONTRARY THE COURT'S DEFINITION OF "SALARY" WAS "FIXED ANNUAL OR PERIODICAL PAYMENT FOR SERVICES, DEPENDING UPON THE TIME AND NOT UPON THE AMOUNT OF SERVICES RENDERED.' COMPENSATION FIXED PURSUANT TO STATUTE ON THE BASIS OF A DAY CONSTITUTES A PERIODICAL PAYMENT FOR SERVICES DEPENDING UPON THE TIME (DAY) AND NOT UPON THE AMOUNT OF SERVICES RENDERED. BAILIFF IS PAID FOR THE DAY REGARDLESS OF THE AMOUNT OF WORK HE MAY PERFORM DURING THE DAY. IN 22 COMP. DEC. 678, THERE WERE INVOLVED FEES OF A MUSIC TEACHER NOT BASED ON THE TIME SERVED; IN 22 COMP. DEC. 693, NOTARIAL FEES; IN 24 COMP. DEC. 532, FEES OF CLERKS OF UNITED STATES COURTS UNDER LAWS THEN IN FORCE (SEE, HOWEVER, EXISTING LAWS AUTHORIZING PAYMENT OF SALARY TO CLERKS OF UNITED STATES COURTS, SECTIONS 557-9, TITLE 28, U.S. CODE); 2 COMP. GEN. 37, FEES OF A PHYSICIAN FOR PERFORMING AUTOPSIES; IN 3 COMP. GEN. 563, FEES FOR X-RAY EXAMINATIONS; AND IN 3 COMP. GEN. 1012, FEES OF UNITED STATES COMMISSIONERS. AS NONE OF THE PAYMENTS CONSIDERED IN THESE DECISIONS OF THE FORMER ACCOUNTING OFFICERS OF THE UNITED STATES WAS BASED ON TIME ELEMENT BUT, ON THE CONTRARY, WAS MADE UP OF CHARGES FOR SEPARATE SERVICES, THE DECISIONS CORRECTLY CONCLUDED THEY WERE FEES AND NOT SALARIES WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF 1916, BUT NONE OF THESE DECISIONS IS APPLICABLE TO THE SITUATION INVOLVED HERE. SEE, ALSO, MY DECISION OF APRIL 1, 1937, 16 COMP. GEN. 909, 910, INVOLVING THE SERVICES OF A PHYSICIAN ON A CONTRACT BASIS, STATING AS FOLLOWS:

IT HAS BEEN HELD BY THIS OFFICE THAT THE PAYMENT OF AN INDEFINITE AND UNDETERMINED AGGREGATE PER ANNUM MADE UP OF CHARGES FOR SEPARATE SERVICES DEPENDENT ENTIRELY UPON CONTINGENCIES BEYOND THE CONTROL OF THE GOVERNMENT OR THE EMPLOYEE, SUCH AS ARE ORDINARILY DESCRIBED AS "FEES," DOES NOT CONSTITUTE SALARY WITHIN THE PURVIEW OF THE ACT OF MAY 10, 1916, AS AMENDED, SUPRA. 3 COMP. GEN. 563. * * *

THE RECORDS OF THIS OFFICE FAIL TO DISCLOSE ANY ACTION EITHER IN THE AUDIT OF ACCOUNTS OR BY FORMAL DECISION APPROVING THE CONCURRENT PAYMENTS TO MELVIN GRIGSBY AS LIBRARIAN AND EMERGENCY BAILIFF AS ALLEGED.

CONTRARY TO THE APPARENT UNDERSTANDING OF JUDGE ALEXANDER, THE ACCOUNTING OFFICERS OF THE UNITED STATES HAVE CONSISTENTLY APPLIED THE DUAL COMPENSATION STATUTE OF 1916, SUPRA, TO COMPENSATION COMPUTED ON THE BASIS OF A DAY WHETHER FOR FULL TIME OR INTERMITTENT SERVICES. IN FACT, THE DECISIONS HOLD THAT COMPENSATION COMPUTED ON A TIME BASIS IS "SALARY" WHETHER THE MEASURE OF TIME IS THE YEAR, MONTH, DAY, OR HOUR. WHERE THE COMPENSATION IS COMPUTED ON ANY OTHER BASIS THAN THE YEAR, IT IS NECESSARY IN APPLYING THE STATUTE TO DETERMINE THE PER ANNUM EQUIVALENT OF THE RATE BASED ON ANY OTHER MEASURE OF TIME INCLUDING THE DAY. THIS RULE IS STATED AND APPLIED IN 8 COMP. GEN. 261; 17 ID. 238. IN DECISION OF APRIL 24, 1922, 1 COMP. GEN. 592, 593, WHICH IS SQUARELY IN POINT IN THE INSTANT CASE, THERE WAS NEGATIVED DUAL PAYMENT OF COMPENSATION TO THE SAME PERSON DURING THE SAME PERIOD OF TIME ON AN ANNUAL BASIS AS CLERK OF A UNITED STATES CIRCUIT COURT OF APPEALS, AND ON A PER DIEM BASIS AS A BAILIFF, IN THE FOLLOWING LANGUAGE:

THE SALARY OF THE POSITION OF CLERICAL ASSISTANT BEING PAYABLE FROM APPROPRIATED MONEYS OF THE UNITED STATES THE INCUMBENT MAY NOT LAWFULLY BE PAID FROM ANY OTHER APPROPRIATION SALARY AT A RATE BY THE YEAR, MONTH, OR DAY, WHICH WOULD BRING THE AGGREGATE RATE OF COMPENSATION RECEIVED IN EXCESS OF THE RATE OF $2,000 A YEAR. THE STATUTORY PER DIEM OF $3 FOR BAILIFFS, WHICH IS PAYABLE FROM A JUDICIARY APPROPRIATION, WOULD BRING THE AGGREGATE COMPENSATION IN THIS CASE TO A RATE IN EXCESS OF THE STATUTORY MAXIMUM, AND THEREFORE MAY NOT LAWFULLY BE PAID TO THE INCUMBENT OF THE OTHER POSITION.

THE DECISION OF OCTOBER 26, 1923, 3 COMP. GEN. 260, HELD AS FOLLOWS (QUOTING FROM THE YLLABUS):

EMPLOYMENT OF THE SAME PERSON AS LABORER AND AS CLERK AT THE SAME TIME WHEN THE COMBINED SALARIES EXCEED AN AGGREGATE OF $2,000 PER ANNUM IS PROHIBITED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, IT BEING IMMATERIAL THAT BY REASON OF THE INTERMITTENT CHARACTER OF THE EMPLOYMENT THE TOTAL PAY ACTUALLY RECEIVED PER ANNUM DOES NOT AMOUNT TO $2,000.

SEE, ALSO, 5 COMP. GEN. 806.

IT SHOULD BE NOTED THAT THE CITED DECISIONS ALSO ANSWER IN THE NEGATIVE THE CONTENTION OF JUDGE ALEXANDER IN THE LAST PARAGRAPH OF HIS LETTER THAT THE DUAL COMPENSATION STATUTE OF 1916 SHOULD NOT BE APPLIED IN THIS CASE, AS THE AGGREGATE RECEIVED BY MR. HUPP IN THE TWO POSITIONS DID NOT EQUAL $2,000 IN A YEAR--- PARTICULAR ATTENTION BEING INVITED TO 8 COMP. GEN. 261, THE SYLLABUS OF WHICH IS AS FOLLOWS:

IN DETERMINING WHETHER THE COMBINED AMOUNT OF MORE THAN ONE SALARY RECEIVED IN MORE THAN ONE POSITION UNDER THE GOVERNMENT EXCEEDS THE SUM OF $2,000 PER ANNUM, THE MAXIMUM AUTHORIZED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, THE BASIS IS THE RATE PER ANNUM OF THE COMBINED SALARIES AND NOT THE AGGREGATE AMOUNT ACTUALLY RECEIVED DURING A PORTION OF THE YEAR, WHETHER THE MEASURE OF TIME FOR PAYMENT OF SALARY UNDER ONE OR MORE POSITIONS IN PER ANNUM, PER DIEM, OR PER HOUR, IT BEING NECESSARY TO DETERMINE IN EACH INSTANCE THE PER ANNUM RATE EQUIVALENT TO THE RATE BASED ON A MEASURE OF TIME LESS THAN A YEAR. (MODIFIED BY 8 COMP. GEN. 487.)

YOU ARE ADVISED, THEREFORE, THAT THE DECISION OF OCTOBER 11, 1938, MUST BE AND IS AFFIRMED.