B-31791, JANUARY 21, 1943, 22 COMP. GEN. 685

B-31791, JANUARY 21, 1943, 22 COMP. GEN. 685

STATUS OF EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942 WHILE POSITIONS OF EMPLOYEES OF THE OFFICE OF REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA ARE CLASSIFIED UNDER THE CLASSIFICATION ACT ON THE BASIS OF THE INCLUSION OF EMPLOYEES OF THE ,MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA" THEREUNDER, SUCH EMPLOYEES ARE REGARDED AS ,UNDER THE JUDICIAL BRANCH/ES) " OF THE GOVERNMENT WITHIN THE MEANING OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 194 AND, AS SUCH, ARE ENTITLED UNDER THE LATTER ACT TO ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS RATHER THAN TO INCREASE IN COMPENSATION ON "OVERTIME" BASIS AS AUTHORIZED FOR EMPLOYEES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT.

COMPTROLLER GENERAL WARREN TO THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, JANUARY 21, 1943:

I HAVE YOUR LETTER OF JANUARY 5, 1943, AS FOLLOWS:

I AM IN RECEIPT OF GENERAL REGULATIONS NO. 54, SUPPLEMENT NO. 14, ISSUED IN ACCORDANCE WITH SENATE JOINT RESOLUTION 170, APPROVED DECEMBER 22, 1942, EXTENDING UNTIL APRIL 30, 1943, TOGETHER WITH ADDITIONAL SALARY TABLES ISSUED DECEMBER 29, 1942, WHICH SALARY TABLES COVER "OVERTIME INCREASE OF COMPENSATION.'

SINCE MY DUTIES AS CLERK OF THE PROBATE COURT AND CUSTODIAN OF THE RECORDS OF SAID COURT ( D.C. CODE 1940, SEC. 19-409) CONSTITUTE THE ESSENTIAL ACTIVITY OF THIS OFFICE, I ASSUME THAT YOU WILL AGREE WITH MY OWN JUDGMENT THAT THIS OFFICE WILL COME UNDER THE PROVISIONS OF SAID JOINT RESOLUTION COVERING "EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES" WHICH THE ACT PROVIDES "SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM," ETC.

I ASSUME FURTHER THAT A SUPPLEMENT TO GOVERNMENT SALARY TABLES COVERING THE LEGISLATIVE AND JUDICIAL BRANCHES HAS BEEN PREPARED, OR WILL BE PREPARED IN DUE COURSE AND THAT COPIES OF SUCH SUPPLEMENT TABLES WILL BE SUPPLIED THIS OFFICE WHEN THEY ARE AVAILABLE.

ALSO, I AM IN RECEIPT OF LETTER DATED JANUARY 14, 1943, FROM THE CHIEF JUSTICE, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, IN PERTINENT PART, AS FOLLOWS:

WHILE THE PRESIDENT APPOINTS THE REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA, THE PRIMARY DUTIES OF THAT OFFICIAL, AND OF HIS OFFICE FORCE, COME WITHIN MY PURVIEW, UNDER THE STATUTES WHICH MAKE HIM EX OFFICIO CLERK OF THE PROBATE COURT, AND REQUIRE HIM TO ACT IN EVERY RESPECT UNDER ITS CONTROL AND DIRECTION IN REFERENCE TO MATTERS COMING WITHIN THE JURISDICTION OF THAT COURT ( D.C. CODE 1940, TITLE 19, SEC. 403, 409).

THUS I AM IMMEDIATELY INTERESTED IN THE ANSWER MR. VICTOR S. MERSCH, PRESENT INCUMBENT, OBTAINS FROM YOU TO HIS LETTER OF JANUARY 5, 1943.

MR. MERSCH AND I ARE AGREED IN OUR OPINION THAT HIS OFFICE FORCE IS WITHIN THE "EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES" WHO ARE TO RECEIVE A TEN PERCENT RAISE UNDER THE ACT APPROVED DECEMBER 22, 1942. AS THE REGISTER OF WILLS, HIMSELF AND THROUGH HIS OFFICE FORCE, TAKES PROOF OF WILLS, TAKES PROBATE OF CLAIMS, EXAMINES RECEIPTS AND AUDITS ACCOUNTS, AND BESIDES PERFORMS THE DUTIES GENERALLY REQUIRED OF A CLERK OF THE COURT, IT IS CLEAR TO ME THAT HE IS NOT BE BE BRACKETED WITH THE RECORDER OF DEEDS, EVEN THOUGH I APPRECIATE THAT BOTH OF THEM ARE APPOINTED BY THE PRESIDENT, AND BOTH OF THEM DERIVE THEIR REVENUES THROUGH DISTRICT OF COLUMBIA APPROPRIATIONS.

SECTION 1 OF THE JOINT RESOLUTION APPROVED DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, READS, IN PART, AS FOLLOWS:

* * * PROVIDED, THAT THE AUTHORIZATION CONTAINED HEREIN TO PAY OVERTIME COMPENSATION TO CERTAIN GROUPS OF EMPLOYEES IS HEREBY EXTENDED, EFFECTIVE DECEMBER 1, 1942 * * * TO THOSE EMPLOYEES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED * * * EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES, SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM, AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH ADDITIONAL COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM.

THE QUESTION HERE FOR CONSIDERATION IS WHETHER THE EMPLOYEES IN THE OFFICE OF REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA, ARE EMPLOYEES OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITHIN THE MEANING OF THE STATUTORY PROVISION AUTHORIZING AN INCREASE IN COMPENSATION ON AN "OVERTIME" BASIS, OR ARE EMPLOYEES IN OR UNDER THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF THE STATUTORY PROVISION AUTHORIZING ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS.

IT IS UNDERSTOOD THE POSITIONS OF THE EMPLOYEES INVOLVED HAVE BEEN REGARDED AS SUBJECT TO THE CLASSIFICATION ACT OF 1923 AND THAT THE SALARY RATES OF THE EMPLOYEES HAVE BEEN FIXED AND ADJUSTED UNDER THAT STATUTE, AS AMENDED. THE AUTHORITY FOR THAT ACTION IS UNDERSTOOD TO BE THE PROVISION IN SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488, DEFINING THE TERM "DEPARTMENT" TO INCLUDE "THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.'

HOWEVER, THERE ARE FOR CONSIDERATION, ALSO, THE FOLLOWING PROVISIONS OF THE DISTRICT OF COLUMBIA CODE, 1940:

SEC. 19-402 (29:2). BOND.

THE REGISTER OF WILLS SHALL, BEFORE HE ACTS AS SUCH, GIVE A BOND TO THE UNITED STATES, WITH TWO OR MORE SURETIES, TO BE APPROVED OF BY THE CHIEF JUSTICE OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT,IN THE SUM OF FIVE THOUSAND DOLLARS, FAITHFULLY TO DISCHARGE THE DUTIES OF HIS OFFICE AND SEASONABLY TO RECORD THE DECREES AND ORDERS OF THE JUSTICE OF THE DISTRICT COURT HOLDING THE SPECIAL TERM FOR PROBATE COURT BUSINESS FOR THE DISTRICT, AND ALL WILLS PROVED BEFORE HIM OR THE COURT, AND ALL OTHER MATTERS DIRECTED TO BE RECORDED IN THE COURT OR IN THE OFFICE OF THE REGISTER, WHICH BOND SHALL BE ENTERED IN FULL UPON THE MINUTES OF THE COURT, AND THE ORIGINAL FILED WITH THE RECORDS THEREOF.

SEC. 19-403 (29:3). POWERS.

THE SAID REGISTER OF WILLS MAY RECEIVE INVENTORIES AND ACCOUNTS OF SALES, EXAMINE VOUCHERS, AND STATE ACCOUNTS OF EXECUTORS, ADMINISTRATORS, COLLECTORS, AND GUARDIANS, SUBJECT TO FINAL PASSAGE OR REJECTION OF SAME BY THE COURT, MAY TAKE PROBATE OF CLAIMS AGAINST THE ESTATES OF DECEASED PERSONS THAT ARE PROPER TO BE BROUGHT BEFORE HIM, AND PASS ANY CLAIMS NOT EXCEEDING THREE HUNDRED DOLLARS; MAY TAKE THE PROBATE OF WILLS AND ACCEPT THE BONDS OF EXECUTORS, ADMINISTRATORS, COLLECTORS, AND GUARDIANS, SUBJECT TO APPROVAL BY THE COURT. IT SHALL BE HIS DUTY TO MAKE FULL AND FAIR ENTRIES OF THE PROCEEDINGS OF SAID COURT, AND ALSO TO MAKE A FAIR RECORD IN A STRONG BOUND BOOK OR BOOKS OF ALL WILLS PROVED BEFORE HIM OR SAID COURT, AND OF ALL OTHER MATTERS BY LAW DIRECTED TO BE RECORDED IN SAID COURT, AND TO LODGE EVERY ORIGINAL PAPER FILED WITH HIM IN SUCH PLACE OF SAFETY AS THE COURT MAY APPOINT. HE SHALL MAKE OUT AND ISSUE EVERY SUMMONS, PROCESS, AND ORDER OF THE COURT, AND IN EVERY RESPECT ACT UNDER ITS CONTROL AND DIRECTION IN REFERENCE TO MATTERS COMING WITHIN THE JURISDICTION OF SAID COURT. HE SHALL BE, AND HEREBY IS, AUTHORIZED TO APPOINT TWO DEPUTIES, WHO MAY DO AND PERFORM ANY AND ALL THE ACTS NECESSARY IN THE ADMINISTRATION OF HIS OFFICE AND THE CERTIFICATION OF THE RECORDS OF SAID COURT WHICH HE HIMSELF IS AUTHORIZED TO DO; ALSO TO APPOINT AND FIX THE NUMBER AND THE COMPENSATION OF THE EMPLOYEES OF SAID PROBATE COURT AND OFFICE OF REGISTER OF WILLS: PROVIDED, THAT THE EMPLOYEES OF SAID OFFICE SHALL NOT BE IN EXCESS OF THE NUMBER ACTUALLY NECESSARY FOR THE PROPER CONDUCT OF THE OFFICE OF SAID REGISTER OF WILLS.

SEC. 19-405 (29:5). EXPENSES TO BE INCLUDED IN ANNUAL ESTIMATES.

THE ANNUAL ESTIMATES OF APPROPRIATIONS FOR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL INCLUDE ESTIMATES OF APPROPRIATIONS FOR THE OPERATION AND MAINTENANCE OF THE OFFICE OF REGISTER OF WILLS.

SEC. 19-409 (29:9). TO ACT AS CLERK OF PROBATE COURT.

THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA SHALL BE, AND HEREBY IS, AUTHORIZED, EMPOWERED, AND DIRECTED TO ACT AS CLERK OF THE SAID PROBATE TERM, TO KEEP AND CERTIFY ITS RECORDS AND GENERALLY, WITH RESPECT TO SAID TERM, TO EXERCISE ALL THE POWERS AND PERFORM ALL THE DUTIES WHICH MIGHT OTHERWISE BE PROPERLY EXERCISED OR PERFORMED BY THE CLERK OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA.

IN DECISION OF AUGUST 19, 1925, 5 COMP. GEN. 130, 131, WHEREIN WAS CONSIDERED THE HISTORY OF THE OFFICE OF THE REGISTER OF WILLS, IT WAS STATED:

SUMMING UP THE VARIOUS ACTS, THE REGISTER OF WILLS IS APPOINTED BY THE PRESIDENT OF THE UNITED STATES; HIS OFFICIAL DUTIES ARE PERFORMED LARGELY UNDER THE CONTROL OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHICH COURT MUST CERTIFY ALL EXPENDITURES MADE BY HIM, AND SUCH EXPENDITURES ARE SUBJECT TO AUDIT BY THIS OFFICE; HIS DUTIES ARE NOT DIRECTLY CONNECTED WITH THOSE OF THE EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS, BUT ARE CONFINED SOLELY TO MATTERS ARISING IN CONNECTION WITH THE DISTRICT LAWS AND LOCAL GOVERNMENT. THE FACT THAT THE EXPENDITURES MUST BE CERTIFIED BY THE SUPREME COURT OF THE DISTRICT WOULD INDICATE AN INTENT THAT SUCH EXPENDITURES ARE TO BE MADE ON THE SAME OR A SIMILAR BASIS AS EXPENDITURES OF THAT COURT. * * *

THE QUOTED STATUTES AND THE DECISION JUST REFERRED TO SHOW THAT THE REGISTER OF WILLS SERVES IN A DUAL CAPACITY, THAT IS, (1) AS THE RECORDER OF WILLS AND (2) AS THE CLERK OF THE PROBATE COURT, A BRANCH OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA. HOWEVER, AS SUGGESTED IN THE LETTER, SUPRA, FROM THE CHIEF JUSTICE, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, BOTH FUNCTIONS ARE PERFORMED EXCLUSIVELY IN CONNECTION WITH THE BUSINESS OF THE COURT. THAT THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA IS A PART OF THE JUDICIAL BRANCH OF THE GOVERNMENT, THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT. SEE THE ACT OF JUNE 25, 1936, 49 STAT. 1921, CHANGING THE NAME OF THE COURT AS ORIGINALLY ESTABLISHED BY THE ACT OF MARCH 3, 1863, 12 STAT. 762, TO THE NAME IT NOW BEARS, AND SECTION 308 OF THE JUDICIAL CODE, AS AMENDED BY THE ACT OF AUGUST 7, 1939, 53 STAT. 1223, INCLUDING SAID COURT WITHIN THE JURISDICTION OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. SEE, ALSO JAMES V. UNITED STATES, 202 U.S. 401; AND O DONOGHUE AND HITZ V. UNITED STATES, 289 U.S. 516. WHILE THE OFFICE OF THE REGISTER OF WILLS IS NOT A PART OF THE COURT PROPER, BY LEGISLATION, ITS FUNCTIONS ARE REQUIRED TO BE, AND ARE, PERFORMED SOLELY AS AN ADJUNCT OF THE COURT. HENCE, IT IS BELIEVED THAT THE EMPLOYEES OF SAID OFFICE MAY BE REGARDED AS "IN OR UNDER" THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF THE JOINT RESOLUTION OF DECEMBER 22, 1942. WHILE THE FUNDS FOR THE OFFICE OF THE REGISTER OF WILLS ARE PROVIDED FOR IN THE ANNUAL APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA, THAT FACT DOES NOT, PER SE, CONSTITUTE THE OFFICE A PART OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR THE PURPOSE OF APPLYING THE LAW HERE UNDER CONSIDERATION. SEE 10 COMP. GEN. 356, 357. NEITHER DOES THE FACT THAT THE POSITIONS OF THE EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS ARE CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, CONSTITUTE THE OFFICE A PART OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR THE PURPOSE OF THE PRESENT SITUATION. THE POSITIONS OF CERTAIN EMPLOYEES IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT --- LIBRARY OF CONGRESS AND ARCHITECT OF THE CAPITOL--- ARE SUBJECT TO THE CLASSIFICATION ACT. NEVERTHELESS, THEY COME WITHIN THE PURVIEW OF THOSE PROVISIONS OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, AUTHORIZING PAYMENT OF ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS. SEE DECISIONS OF JANUARY 2, 1943, B-31316, 22 COMP. GEN. 589, AND JANUARY 13, 1943, B 31619, 22 COMP. GEN. 649.

IN VIEW OF WHAT IS STATED ABOVE, IT IS CONCLUDED THAT THE EMPLOYEES OF THE OFFICE OF REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA ARE PROPERLY FOR REGARDING AS "UNDER" THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, AND, AS SUCH, ARE ENTITLED TO ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS UNDER THE PROVISIONS OF THAT STATUTE.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT THIS OFFICE DOES NOT CONTEMPLATE THE ISSUANCE OF SPECIAL SALARY TABLES FOR ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS. HOWEVER, THE RULES FOR APPLYING THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM TO EMPLOYEES WHO ARE PAID ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS WERE STATED IN THE DECISION OF JANUARY 2, 1943, B-31316, 22 COMP. GEN. 589, TO THE ARCHITECT OF THE CAPITOL, A COPY OF WHICH IS ENCLOSED.