B-35696, AUGUST 12, 1943, 23 COMP. GEN. 94

B-35696: Aug 12, 1943

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IS ENTITLED TO BE PAID COMMISSIONER'S FEES FOR THE QUARTER IN AN AMOUNT WHICH TOGETHER WITH HIS SALARY AS CLERK OF COURT WILL BRING THE AGGREGATE PAYMENTS FOR THE QUARTER TO A SUM NOT EXCEEDING ONE-FOURTH OF THE MAXIMUM PER ANNUM RATE FIXED BY THE SAID ACT. IN THE SETTLEMENT OF ACCOUNTS OF UNITED STATES COMMISSIONERS WHO ARE ALSO CLERKS OF UNITED STATES DISTRICT COURTS. 1943: REFERENCE IS MADE TO YOUR LETTER. WERE MADE IN THE SUMS OF $13.65. DOES NOT REQUIRE THE CONSTRUCTION THAT THE COMPENSATION OF A PERSON HOLDING BOTH OF THE POSITIONS UNITED STATES DISTRICT COURT AND UNITED STATES COMMISSIONER IS BASED ON QUARTERLY PAYMENTS OF $750. YOU URGE THAT SUCH COMPENSATION SHOULD BE COMPUTED UPON THE BASIS OF THE GOVERNMENT FISCAL YEAR PERIOD RATHER THAN UPON THE THREE-MONTH PERIODS FOR WHICH YOU ARE REQUIRED TO SUBMIT YOUR ACCOUNTS.

B-35696, AUGUST 12, 1943, 23 COMP. GEN. 94

SETTLEMENT OF ACCOUNTS OF UNITED STATES COMMISSIONERS ALSO SERVING AS CLERKS OF DISTRICT COURTS UNDER THE ACT OF JUNE 16, 1938, PROVIDING THAT CLERKS OF UNITED STATES DISTRICT COURTS WHO ALSO HOLD OFFICE AS UNITED STATES COMMISSIONERS MAY RECEIVE COMPENSATION FOR BOTH OFFICES IN AN AGGREGATE AMOUNT NOT EXCEEDING THE RATE OF $3,000 PER ANNUM, A UNITED STATES COMMISSIONER, UPON SETTLEMENT OF HIS QUARTERLY ACCOUNT, IS ENTITLED TO BE PAID COMMISSIONER'S FEES FOR THE QUARTER IN AN AMOUNT WHICH TOGETHER WITH HIS SALARY AS CLERK OF COURT WILL BRING THE AGGREGATE PAYMENTS FOR THE QUARTER TO A SUM NOT EXCEEDING ONE-FOURTH OF THE MAXIMUM PER ANNUM RATE FIXED BY THE SAID ACT. IN THE SETTLEMENT OF ACCOUNTS OF UNITED STATES COMMISSIONERS WHO ARE ALSO CLERKS OF UNITED STATES DISTRICT COURTS, ANY FEES EARNED DURING AN ACCOUNTING QUARTER IN EXCESS OF ONE-FOURTH OF THE MAXIMUM RATE OF $3,000 PER ANNUM PRESCRIBED BY THE ACT OF JUNE 16, 1938, SHOULD BE SUSPENDED AND MAY BE APPLIED LATER TO MAKE UP A DEFICIENCY IN ANY SUBSEQUENT QUARTER DURING THE SAME ACCOUNTING YEAR, BUT NO ADJUSTMENT MAY BE MADE OF ANY EXCESS FEES EARNED IN A SUBSEQUENT QUARTER TO COVER A DEFICIT IN A PRECEDING QUARTER OF THE SAME ACCOUNTING YEAR. UNDER THE ACT OF MAY 29, 1928, REQUIRING THE SUBMISSION OF QUARTERLY ACCOUNTS BY UNITED STATES COMMISSIONERS, THE QUARTERLY PERIODS NEED NOT NECESSARILY CONFORM TO THE QUARTERS OF THE CALENDAR YEAR OR THE GOVERNMENT FISCAL YEAR.

COMPTROLLER GENERAL WARREN TO NATHAN A. BROWN, UNITED STATES COMMISSIONER, AUGUST 12, 1943:

REFERENCE IS MADE TO YOUR LETTER, WITHOUT DATE, RECEIVED IN THIS OFFICE MAY 21, 1943, CONCERNING SETTLEMENT NO. 10710866 DATED JANUARY 22, 1943, WHEREIN DEDUCTIONS FROM THE AMOUNT FOUND DUE YOU FOR THE QUARTER ENDED OCTOBER 31, 1942, WERE MADE IN THE SUMS OF $13.65, $71.80 AND $21.50, REPRESENTING EXCESS FEES ALLOWED DURING THE YEARS ENDING JULY 31, 1940, 1941 AND 1942, RESPECTIVELY. YOU CONTEND IN EFFECT THAT THE ACT OF JUNE 16, 1938, 52 STAT. 752, DOES NOT REQUIRE THE CONSTRUCTION THAT THE COMPENSATION OF A PERSON HOLDING BOTH OF THE POSITIONS UNITED STATES DISTRICT COURT AND UNITED STATES COMMISSIONER IS BASED ON QUARTERLY PAYMENTS OF $750, IF EARNED, BUT THAT THE ACT SPECIFICALLY LIMITS THE AMOUNT TO $3,000 PER ANNUM; ALSO, YOU URGE THAT SUCH COMPENSATION SHOULD BE COMPUTED UPON THE BASIS OF THE GOVERNMENT FISCAL YEAR PERIOD RATHER THAN UPON THE THREE-MONTH PERIODS FOR WHICH YOU ARE REQUIRED TO SUBMIT YOUR ACCOUNTS.

THE ACT OF JUNE 16, 1938, SUPRA, PROVIDES:

* * * CLERKS OF UNITED STATES DISTRICT COURTS, THEIR DEPUTIES AND ASSISTANTS, WHO ARE OR MAY BE APPOINTED UNITED STATES COMMISSIONERS, MAY RECEIVE COMPENSATION FOR BOTH OFFICES IN AN AGGREGATE AMOUNT NOT EXCEEDING THE RATE OF $3,000 PER ANNUM.

BY REASON OF THE FOREGOING PROVISION OF LAW, UPON SETTLEMENT OF A QUARTERLY ACCOUNT THE UNITED STATES COMMISSIONER IS ENTITLED TO BE PAID FEES FOR THE QUARTER IN AN AMOUNT WHICH TOGETHER WITH HIS SALARY WILL BRING THE AGGREGATE PAYMENTS FOR THE QUARTER TO A RATE NOT EXCEEDING THE MAXIMUM PER ANNUM RATE FIXED BY THE STATUTE. THE DECISIONS OF THIS OFFICE ARE TO THE EFFECT THAT THE PAYMENTS TO A COMMISSIONER--- WHO IS ALSO A CLERK OR DEPUTY CLERK OF COURT--- OF ANY FEES EARNED DURING AN ACCOUNTING QUARTER IN EXCESS OF ONE-FOURTH OF THE MAXIMUM YEARLY RATE OF COMPENSATION FIXED BY STATUTE SHOULD BE SUSPENDED UNTIL SETTLEMENT OF HIS NEXT QUARTERLY ACCOUNT IN THE SAME ACCOUNTING YEAR, AND ADJUSTED IN CONNECTION WITH THE SETTLEMENT OF THAT ACCOUNT, AND SO ON WITH EACH QUARTER, IN ORDER TO KEEP THE AGGREGATE FOR THE ACCOUNTING YEAR, OR ANY QUARTER OR QUARTERS THEREOF, WITHIN THE MAXIMUM RATE FIXED BY THE STATUTE. HOWEVER, THE STATUTORY LIMITATION OF THE AMOUNT OF THE COMBINED COMPENSATION OF COMMISSIONERS WHO ARE ALSO CLERKS OR DEPUTY CLERKS OF COURTS IS ANNUAL RATHER THAN QUARTERLY. ACCORDINGLY, IN THE SETTLEMENT OF SUCH ACCOUNTS, THE EXCESS IN ANY QUARTER DURING THE SAME ACCOUNTING YEAR IS PROPERLY TO BE APPLIED TO MAKE UP A DEFICIENCY IN ANY SUBSEQUENT QUARTER DURING THE SAME ACCOUNTING YEAR. SEE IN THAT CONNECTION, 1 COMP. GEN. 155; 5 ID. 738; AND ID. 819.

HOWEVER, WHERE THE EARNED FEES PLUS THE SALARY IN THE PRECEDING QUARTER IS LESS THAN THE PRESCRIBED MAXIMUM, ANY ALLOWANCE IN EXCESS OF THE MAXIMUM FOR A SUBSEQUENT QUARTER IS NOT AUTHORIZED. 5 COMP. GEN. 783. THE NECESSITY FOR SUCH RULE IS READILY APPARENT. THE COMPENSATION OF THE RATE NOT TO EXCEED $3,000 PER ANNUM AS PROVIDED BY THE SAID ACT OF JUNE 16, 1938, IS TO BE PAID ONLY IF FEES ARE EARNED TO BRING THE AMOUNT TO THAT FIGURE DURING THE ACCOUNTING YEAR INVOLVED. IF, FOR EXAMPLE, NO FEES ARE EARNED DURING THE LAST TWO QUARTERS, THERE WOULD APPEAR NO LOGICAL REASON FOR APPLYING THE EXCESS TO INCREASE THE COMPENSATION OF THE COMMISSIONER FOR THE FIRST TWO QUARTERS IN WHICH NO SERVICES WERE RENDERED, AND NO FEES EARNED. HOWEVER, A DIFFERENT SITUATION IS PRESENTED WHERE FEES EARNED DURING THE FIRST, SECOND OR THIRD QUARTERS OF AN ACCOUNTING YEAR ARE IN EXCESS OF THE AMOUNT ALLOWABLE BY LAW AND IN SUBSEQUENT QUARTERS THE AMOUNT OF FEES EARNED IS LESS THAN THAT ALLOWABLE BY LAW. AS HERETOFORE INDICATED, IN SUCH CASES THE EXCESS IS FOR CREDITING TO A SUBSEQUENT QUARTER OR QUARTERS OF THE SAME ACCOUNTING YEAR.

WITH RESPECT TO YOUR CONTENTION THAT ADJUSTMENTS OF ACCOUNTS SHOULD BE MADE UPON THE BASIS OF QUARTERS WITHIN THE GOVERNMENT FISCAL YEAR PERIOD, ATTENTION IS INVITED TO THE ACT OF MAY 29, 1928, 45 STAT. 998, WHICH REQUIRES THE ACCOUNTS OF UNITED STATES COMMISSIONERS TO BE SUBMITTED QUARTERLY. FORMERLY ALL UNITED STATES COMMISSIONERS' ACCOUNTS WERE REQUIRED TO BE COMPUTED AND SUBMITTED QUARTERLY ON THE BASIS OF THE FISCAL YEAR ENDING JUNE 30. THE SAID ACT OF MAY 29, 1928, SUPRA, WAS CONSTRUED AS PERMITTING THE SUBMISSION OF COMMISSIONERS' ACCOUNTS IN QUARTERLY PERIODS NOT NECESSARILY CONFORMING TO THE QUARTERS OF THE CALENDAR YEAR OR THE GOVERNMENT FISCAL YEAR AND INSTRUCTIONS WERE ISSUED DIVIDING THE UNITED STATES INTO THREE DISTRICTS, REQUIRING THE ACCOUNTS OF COMMISSIONERS THEREIN TO BE RENDERED QUARTERLY, AS FOLLOWS: DISTRICT NO. 1, FOR QUARTERS ENDING MARCH 31, JUNE 30, SEPTEMBER 30, AND DECEMBER 31; DISTRICT NO. 2, FOR QUARTERS ENDING JANUARY 31, APRIL 30, JULY 31, AND OCTOBER 31; AND DISTRICT NO. 3, FOR QUARTERS ENDING FEBRUARY 28 (OR 29), MAY 31, AUGUST 31, AND NOVEMBER 30. IN THAT CONNECTION, SEE INSTRUCTIONS TO UNITED STATES COMMISSIONERS, 1929, PARAGRAPHS 1700, 1701, 1702 AND 1703. AS UNITED STATES COMMISSIONERS LOCATED IN GEORGIA ARE IN DISTRICT NO. 2, THE END OF THE ANNUAL PERIOD OR ACCOUNTING YEAR FOR FINAL COMPUTATION AND ADJUSTMENT OF YOUR ACCOUNTS IS JULY 31, INSTEAD OF JUNE 30.

IN VIEW OF THE FOREGOING, UPON RECONSIDERATION OF THE MATTER, THE SETTLEMENT OF JANUARY 22, 1943, MUST BE AND IS SUSTAINED.