B-18731, AUGUST 16, 1941, 21 COMP. GEN. 146

B-18731: Aug 16, 1941

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REGULARLY EMPLOYED AND WHOSE SALARY IS FIXED ON AN ANNUAL BASIS. PROVIDED SUCH SERVICE IS NOT PERFORMED DURING A REGULAR TOUR OF DUTY. 1941: I HAVE YOUR LETTER OF JULY 10. TWO SPECIFIC CASES ARE UNDER CONSIDERATION BY THE DEPARTMENT WHEREIN A MAIL MESSENGER AND A JOB CLEANER REGULARLY EMPLOYED IN THE BOSTON POST OFFICE HAVE RENDERED ADDITIONAL SERVICES AS SPECIAL DELIVERY MESSENGERS AND THE EFFECT OF SUCH ADDITIONAL EMPLOYMENT HAS BEEN TO INCREASE THEIR COMPENSATION TO A SUM IN EXCESS OF $2. IT IS REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER SPECIAL DELIVERY MESSENGERS WHO ARE PAID ENTIRELY ON A FEE BASIS COME WITHIN THE RESTRICTIVE PROVISIONS OF THE DUAL COMPENSATION STATUTES. IT IS UNDERSTOOD THAT MAIL MESSENGERS AND JOB CLEANERS ARE REGULAR EMPLOYEES OF THE POST OFFICE DEPARTMENT.

B-18731, AUGUST 16, 1941, 21 COMP. GEN. 146

COMPENSATION - DOUBLE - POSTAL EMPLOYEES SERVING AS SPECIAL DELIVERY MESSENGERS MAIL MESSENGERS AND JOB CLEANERS AT FIRST AND SECOND CLASS POST OFFICES, REGULARLY EMPLOYED AND WHOSE SALARY IS FIXED ON AN ANNUAL BASIS, MAY BE PAID THE FEES AUTHORIZED BY LAW AND REGULATION FOR SERVICE AS SPECIAL DELIVERY MESSENGERS IN ADDITION TO THEIR REGULAR SALARY WITHOUT CONTRAVENING ANY OF THE DUAL COMPENSATION STATUTES, PROVIDED SUCH SERVICE IS NOT PERFORMED DURING A REGULAR TOUR OF DUTY.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 16, 1941:

I HAVE YOUR LETTER OF JULY 10, 1941, AS FOLLOWS:

QUESTION HAS BEEN RAISED AS TO THE APPLICATION OF THE DUAL COMPENSATION STATUTES IN THE CASE OF SPECIAL DELIVERY MESSENGERS. TWO SPECIFIC CASES ARE UNDER CONSIDERATION BY THE DEPARTMENT WHEREIN A MAIL MESSENGER AND A JOB CLEANER REGULARLY EMPLOYED IN THE BOSTON POST OFFICE HAVE RENDERED ADDITIONAL SERVICES AS SPECIAL DELIVERY MESSENGERS AND THE EFFECT OF SUCH ADDITIONAL EMPLOYMENT HAS BEEN TO INCREASE THEIR COMPENSATION TO A SUM IN EXCESS OF $2,000 IN EACH INSTANCE.

IN VIEW OF THE DECISION OF YOUR OFFICE REPORTED IN 16 C.G. 909, IT IS REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER SPECIAL DELIVERY MESSENGERS WHO ARE PAID ENTIRELY ON A FEE BASIS COME WITHIN THE RESTRICTIVE PROVISIONS OF THE DUAL COMPENSATION STATUTES.

IT IS UNDERSTOOD THAT MAIL MESSENGERS AND JOB CLEANERS ARE REGULAR EMPLOYEES OF THE POST OFFICE DEPARTMENT, WHOSE COMPENSATION OR SALARY IS FIXED ON AN ANNUAL BASIS (39 U.S.C. 101, TAKEN FROM THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1060).

SECTION 175, TITLE 39, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * AT FIRST- AND SECOND-CLASS POST OFFICES THE POSTMASTER GENERAL MAY ESTABLISH RULES UNDER WHICH SPECIAL DELIVERY MAY BE EFFECTED BY ANY SALARIED CLERK OR EMPLOYEE THEREOF, AND THE LAWFUL SPECIAL DELIVERY FEES ALLOWED THEREFOR, IN CASES WHERE SUCH DELIVERY CAN NOT BE MADE BY REGULAR MESSENGERS. ( JUNE 2, 1900, C. 613, SEC. 1, 31 STAT. 260.) COMPARE 39 U.S.C. 167, TAKEN FROM THE ACT OF AUGUST 4, 1886, 24 STAT. 220, RELATIVE TO THE USE OF EMPLOYEES AT THIRD- AND FOURTH-CLASS POST OFFICES AS SPECIAL -DELIVERY MESSENGERS.

SECTION 169 (A), TITLE 39, U.S. CODE, PROVIDES:

SPECIAL DELIVERY; MESSENGER SERVICE; SCHEDULE OF RATES. FOR MAKING SPECIAL DELIVERY THERE MAY BE PAID TO THE MESSENGER OR OTHER PERSON MAKING SUCH DELIVERY 9 CENTS, FOR MATTER OF THE FIRST CLASS WEIGHING NOT IN EXCESS OF TWO POUNDS, 10 CENTS FOR MATTER OF OTHER THAN THE FIRST CLASS WEIGHING NOT IN EXCESS OF TWO POUNDS, 15 CENTS FOR MAIL MATTER OF ANY CLASS WEIGHING MORE THAN TWO POUNDS BUT NOT IN EXCESS OF TEN POUNDS, AND 20 CENTS FOR MAIL MATTER OF ANY CLASS WEIGHING IN EXCESS OF TEN POUNDS. MAR. 2, 1931, C. 372, SEC. 3, 46 STAT. 1469.)

SECTION 1096 (3), POSTAL LAWS AND REGULATIONS, 1940, READS AS FOLLOWS:

WHEN DELIVERY OF SPECIAL-DELIVERY MATTER CAN NOT BE MADE PROMPTLY BY REGULAR SPECIAL-DELIVERY MESSENGERS, POSTMASTERS MAY CAUSE SUCH DELIVERY TO BE MADE BY ANY REGULAR CLERK OR EMPLOYEE, WHO SHALL BE ALLOWED THE SAME COMPENSATION AS REGULAR MESSENGERS, EXCEPT THAT, AT OFFICES OF THE FIRST AND SECOND CLASSES, REGULAR CLERKS OR EMPLOYEES (OTHER THAN RURAL CARRIERS AND CLERKS IN CHARGE OF RURAL STATIONS) SHALL NOT RECEIVE FEES FOR DELIVERING SPECIAL-DELIVERY MAIL DURING THEIR REGULAR TOURS OF DUTY, AND SUBSTITUTES SHALL NOT RECEIVE FEES FOR EFFECTING SPECIAL DELIVERIES DURING THE TIME FOR WHICH THEY ARE PAID AT THE HOURLY RATE.

SECTIONS 1764 AND 1765, REVISED STATUTES, PROVIDE:

SEC. 1764. NO ALLOWANCE OR COMPENSATION SHALL BE MADE TO ANY OFFICER OR CLERK, BY REASON OF THE DISCHARGE OF DUTIES WHICH BELONG TO ANY OTHER OFFICER OR CLERK IN THE SAME OR ANY OTHER DEPARTMENT; AND NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1765. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY 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, * * *

ALSO, SEE 39 U.S.C. 136, WHICH PROVIDES:

MAIL MESSENGERS AND OTHER POSTAL EMPLOYEES; EMPLOYMENT IN DUAL CAPACITY; EXTRA DUTIES; COMPENSATION. POSTMASTERS AND ACTING POSTMASTERS ARE AUTHORIZED, WHEN IN THE JUDGMENT OF THE POSTMASTER GENERAL THE NEEDS AND INTERESTS OF THE POSTAL SERVICE REQUIRE, TO EMPLOY MAIL MESSENGERS AND OTHER POSTAL EMPLOYEES IN A DUAL CAPACITY, OR TO ASSIGN EXTRA DUTIES TO SUCH MAIL MESSENGERS AND OTHER EMPLOYEES; AND, NOTWITHSTANDING THE PROVISIONS OF SECTIONS 58 (1916 DUAL COMPENSATION STATUTE), 69 (1764, REVISED STATUTES), AND 70 (1765, REVISED STATUTES) OF TITLE 5, COMPENSATION SHALL BE PAID TO SUCH MAIL MESSENGERS AND OTHER EMPLOYEES FOR SUCH SERVICES IF THE TOTAL COMPENSATION ACTUALLY PAID FOR ALL SERVICES DOES NOT EXCEED $2,000 FOR ANY ONE FISCAL YEAR. ( MAR. 1, 1929, C. 442, SEC. 1, 45 STAT. 1441.)

THE COMPENSATION PAID FOR SPECIAL DELIVERY OF MAIL MATTER IS NOT BASED UPON ANY ELEMENT OF TIME BUT CONSTITUTES A PAYMENT OF AN INDEFINITE AND UNDETERMINED AGGREGATE MADE UP OF CHARGES FOR SEPARATE SERVICES DEPENDENT ENTIRELY UPON CONTINGENCIES BEYOND THE CONTROL OF THE GOVERNMENT OR THE EMPLOYEE, AND, ACCORDINGLY, DOES NOT CONSTITUTE "SALARY" WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTE OF 1916, SUPRA. 16 COMP. GEN. 909; 18 COMP. GEN. 768, 773; 20 ID. 730.

AS FEES FOR SPECIAL DELIVERY SERVICE ARE FIXED BY LAW, AND AS THE ACT OF JUNE 2, 1900, 31 STAT. 260 (39 U.S.C. 175, SUPRA) EXPRESSLY AUTHORIZED THE POSTMASTER GENERAL TO ESTABLISH RULES UNDER WHICH THE SPECIAL DELIVERY OF MAIL MAY BE EFFECTED BY ANY SALARIED CLERK OR EMPLOYEE AT FIRST- AND SECOND-CLASS POST OFFICES AND THE LAWFUL FEES ALLOWED FOR SUCH SERVICE, SUCH PAYMENTS HAVE NOT BEEN CONSIDERED AS COMING WITHIN THE INHIBITION OF SECTION 1764 AND 1765, REVISED STATUTES, SINCE THE DATE OF THE ENACTMENT OF SAID ACT OF JUNE 2, 1900. IN THIS CONNECTION SEE SAUNDERS V. UNITED STATES, 120 U.S. 126; UNITED STATES V. MCCANDLESS, 147 U.S. 692. SEE, ALSO, DECISION OF THIS OFFICE DATED JULY 19, 1924, 4 COMP. GEN. 84, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

(THE POSITION OF LABORER IN THE CUSTODIAN SERVICE, TREASURY DEPARTMENT, WITH COMPENSATION FIXED BY LONG-ESTABLISHED PRACTICE, HAVING THE FORCE OF A REGULATION, ALTHOUGH NOT PUBLISHED AS SUCH, IS SEPARATE AND DISTINCT FROM THAT OF SPECIAL-DELIVERY MESSENGER IN THE POSTAL SERVICE, THE FEES PAYABLE FOR SPECIAL DELIVERY BEING ALSO FIXED BY REGULATION, THE HOLDING OF BOTH POSITIONS IS NOT BARRED BY SECTION 1765, REVISED STATUTES, NOR BY THE ACT OF MAY 10, 1916, 39 STAT. 120, FEES FOR SPECIAL-DELIVERY SERVICE NOT BEING SALARY WITHIN THE MEANING OF THE LATTER ACT.

ACCORDINGLY, AT THE TIME OF THE APPROVAL OF THE ACT OF MARCH 1, 1929, 45 STAT. 1441 (39 U.S.C. 136, SUPRA), THERE WAS NO LEGAL OBJECTION TO THE EMPLOYMENT OF, AND PAYMENT TO, POSTAL EMPLOYEES AT FIRST- AND SECOND-CLASS POST OFFICES FOR SPECIAL-DELIVERY SERVICE. OBVIOUSLY, THE LIMITATION FIXED IN THAT REMEDIAL STATUTE FOR PAYMENTS TO POSTAL EMPLOYEES IN ADDITION TO THEIR REGULAR SALARY FOR SERVICES IN A "DUAL CAPACITY" OR WHEN ASSIGNED TO "EXTRA DUTIES" COULD NOT HAVE BEEN INTENDED TO RELATE TO PAYMENT OF FEES FOR SPECIAL-DELIVERY SERVICE WHICH THERETOFORE HAD BEEN EXPRESSLY AUTHORIZED BY LAW. COMPARE 8 COMP. GEN. 487; ID. 578; ID. 610, WHEREIN CASES WERE CONSIDERED INVOLVING THE ACT OF MARCH 1, 1929.

IT IS CONCLUDED, THEREFORE, THAT POSTAL EMPLOYEES OF THE CLASSES MENTIONED IN YOUR LETTER WHO ARE AUTHORIZED BY THE REGULATIONS OF THE POST OFFICE DEPARTMENT TO BE EMPLOYED AS SPECIAL-DELIVERY MESSENGERS MAY BE PAID THE AUTHORIZED FEES FIXED BY LAW AND REGULATION FOR SUCH SERVICE IN ADDITION TO THEIR REGULAR SALARY WITHOUT CONTRAVENING ANY OF THE DUAL COMPENSATION STATUTES. IF SPECIAL-DELIVERY SERVICE AT BOSTON, MASS., A FIRST-CLASS OFFICE, WAS PERFORMED BY THE EMPLOYEES MENTIONED IN YOUR LETTER DURING THEIR REGULAR TOURS OF DUTY, NO PAYMENT WOULD BE AUTHORIZED FOR SUCH SPECIAL-DELIVERY SERVICE. SECTION 1096 (3) OF THE POSTAL LAWS AND REGULATIONS, SUPRA. ..END :