B-106884, JANUARY 17, 1952, 31 COMP. GEN. 305

B-106884, JANUARY 17, 1952, 31 COMP. GEN. 305

COMPENSATION - PROMOTIONS - SIMULTANEOUS STATUTORY PROMOTION RESTRICTION ENACTMENT THE PROVISIONS OF SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, PROVIDING THAT NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST A YEAR IN THE NEXT LOWER GRADE, IS EFFECTIVE FROM THE BEGINNING OF THE DAY OF APPROVAL, SINCE THE EXACT HOUR OF THE SIGNING OF THE ACT CANNOT BE ASCERTAINED WITH ANY DEGREE OF EXACTNESS, AND THEREFORE, THE PROMOTION OF AN EMPLOYEE EFFECTIVE AT THE BEGINNING OF BUSINESS ON NOVEMBER 1, 1951, IS SUBJECT TO THE RESTRICTIONS CONTAINED IN THE CITED ACT.

COMPTROLLER GENERAL WARREN TO JUANITA S. MAYOLA, OFFICE OF PRICE STABILIZATION, JANUARY 17, 952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1951, (JSM/2933), TRANSMITTING A PAY ROLL VOUCHER IN FAVOR OF VINCENT J. AUGLIERE FOR THE DIFFERENCE IN SALARY BETWEEN GRADES GS-12 ($7,240 PER ANNUM) AND GS-13 ($8,360 PER ANNUM) DURING THE PERIOD NOVEMBER 1 TO 24, 1951, AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

IT APPEARS THAT MR. AUGLIERE WAS APPOINTED TO A GS-12 POSITION ON MAY 1, 1951, WHILE SERVING IN A GS-11 POSITION. BECAUSE OF THE EMPLOYEE'S EXPERIENCE AND QUALIFICATIONS IT WAS DETERMINED THAT HE SHOULD BE PROMOTED TO GS-13. HOWEVER, SINCE THE EMPLOYEE HAD NOT BEEN IN GRADE GS-12 FOR A PRECEDING PERIOD OF SIX MONTHS AS SPECIFIED IN SECTION 810 (B) OF THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION, IN EFFECT AT THAT TIME, IT WAS NECESSARY TO SUBMIT THE PROPOSED PROMOTION TO THE COMMISSION FOR APPROVAL. THE REQUEST FOR APPROVAL OF THE PROMOTION WAS FIRST SUBMITTED TO THE CIVIL SERVICE COMMISSION ON AUGUST 7, 1951, AND WAS DISAPPROVED. A SECOND REQUEST FOR RECONSIDERATION WAS MADE ON AUGUST 7, 1951, AND WAS DISAPPROVED. A SECOND REQUEST FOR RECONSIDERATION MADE ON AUGUST 21, 1951, AND ON OCTOBER 8, 1951, THE COMMISSION APPROVED THE REQUEST BUT WITH THE STIPULATION THAT THE PROMOTION SHOULD NOT BE MADE EFFECTIVE EARLIER THAN NOVEMBER 1, 1951. ACCORDINGLY, A PERSONNEL ACTION WAS PREPARED ON OCTOBER 12, 1951, PROMOTING MR. AUGLIERE TO GS-13 EFFECTIVE AT THE BEGINNING OF BUSINESS ON NOVEMBER 1, 1951.

THE QUESTION NOW ARISES WHETHER THE PROMOTION BECAME EFFECTIVE ON NOVEMBER 1, 1951, IN VIEW OF THE ENACTMENT ON THE SAME DATE OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, PUBLIC LAW 253, 82D CONGRESS, 65 STAT. 758, CONTAINING THE SO-CALLED " WHITTEN RIDER" (SECTION 1310C OF THE ACT) WHICH PROVIDES THAT " NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE.' THE ACT MAKES CERTAIN EXCEPTIONS TO SUCH RESTRICTION BUT PRESUMABLY THEY ARE NOT APPLICABLE IN MR. AUGLIERE'S CASE AS YOUR LETTER MAKES NO MENTION OF ANY SUCH EXCEPTIONS. HOWEVER, YOU DO POINT OUT THAT INFORMAL ADVICE OBTAINED FROM THE WHITE HOUSE IS TO THE EFFECT THAT THE SUPPLEMENTAL APPROPRIATION ACT FOR 1952 WAS NOT SIGNED BY THE PRESIDENT UNTIL 5:15 P.M. ON NOVEMBER 1, 1951. THUS, IF SUCH ACT DID NOT BECOME EFFECTIVE UNTIL THE HOUR OF THE DAY IT REASONABLY WOULD FOLLOW THAT THE PROMOTION OF THE EMPLOYEE TO GRADE GS-13 WHICH PREVIOUSLY HAD BEEN FIXED AS EFFECTIVE AT THE BEGINNING OF BUSINESS ON NOVEMBER 1, BECAME CONSUMMATED PRIOR TO THE OPERATION OF SECTION 1310 OF SAID APPROPRIATION ACT.

GENERALLY, A STATUTE IS HELD TO BE EFFECTIVE FROM THE BEGINNING OF THE DAY OF APPROVAL BY THE CHIEF EXECUTIVE, PARTICULARLY SO WHERE THERE IS NO EVIDENCE TO SHOW WHAT HOUR OF THE DAY HE APPROVED THE STATUTE. UNITED STATES V. NORTON, 97 U.S. 164; LAPEYRE V. UNITED STATES, 17 WALL. 91; AND LEHIGH CARRIAGE COMPANY, ET AL. V. STENGEL, ET AL., 95 F. 637. HOWEVER, IN CERTAIN CASES, WHERE THERE IS EVIDENCE OF THE ACTUAL TIME OF DAY THAT THE CHIEF EXECUTIVE SIGNS A BILL AND WHERE, IN ORDER TO DO SUBSTANTIAL JUSTICE OR TO PROTECT VESTED RIGHTS, THE COURTS HAVE LOOKED ON THE ACTUAL TIME OF THE SIGNING OF A BILL AND HAVE GIVEN TO THE SAME ONLY FROM THAT HOUR. LOUISVILLE V. SAVINGS BANK, 104 U.S. 469; BURGESS V. SALMON, 97 U.S. 381; RICHARDSON'S CASE (CASE NO. 11777), 20 FEDERAL CASES 699; AND BRISTOL MFG. 100. V. UNITED STATES, 77 C.1CLS. 182.

IT INFORMALLY HAS BEEN ASCERTAINED FROM THE OFFICE OF THE ASSISTANT EXECUTIVE CLERK AT THE WHITE HOUSE THAT THERE IS NO OFFICIAL RECORD AS TO THE HOUR THE PRESIDENT SIGNED THE SUPPLEMENTAL APPROPRIATION ACT, 1952, AND THAT THE INFORMATION PREVIOUSLY GIVEN OUT AS TO THE HOUR OF SIGNATURE WAS BASED SOLELY UPON THE RECOLLECTION OF OFFICIALS IN THAT OFFICE, SUCH RECOLLECTION, HOWEVER, NOT APPEARING TO HAVE BEEN BASED UPON ANY ACTUAL WITNESSING OF THE SIGNATURE OF THE ACT BUT RATHER UPON NORMAL OFFICE PROCEDURES.

FROM THE FOREGOING, IT APPEARS THAT THE TIME OF THE SIGNING OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, CANNOT BE ASCERTAINED WITH ANY DEGREE OF EXACTNESS. AS A MATTER OF FACT IT IS POSSIBLE THAT THE ACT MAY HAVE BEEN SIGNED IN THE EARLY MORNING HOURS ON NOVEMBER 1. IN ANY EVENT, THIS OFFICE MAY NOT UNDERTAKE--- ON THE BASIS OF SUCH INFORMATION--- TO DETERMINE WHETHER THERE IS FOR APPLICATION THE COURT DECISIONS PREVIOUSLY REFERRED TO WHICH HOLD THAT UNDER CERTAIN CIRCUMSTANCES THE COURT WILL LOOK TO THE ACTUAL HOUR OF THE SIGNING OF AN ACT BY THE CHIEF EXECUTIVE TO ASCERTAIN WHEN IT FIRST BECAME EFFECTIVE. RATHER, THERE IS REQUIRED THE APPLICATION OF THE GENERAL RULE THAT IN THE ABSENCE OF EVIDENCE TO SHOW THE HOUR THE ACT WAS SIGNED IT WILL BE DEEMED TO BE IN FORCE FROM THE BEGINNING OF THE DATE OF APPROVAL.

ACCORDINGLY, IT IS CONCLUDED THAT THE SUPPLEMENTAL APPROPRIATION ACT, 1952, SUPRA, WAS IN EFFECT AT THE TIME THE PROMOTIONS REFERRED TO IN YOUR LETTER WERE TO BECOME EFFECTIVE AND WERE SUBJECT TO THE RESTRICTION CONTAINED IN SECTION 1310 THEREOF.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.