B-5789, FEBRUARY 26, 1940, 19 COMP. GEN. 751

B-5789: Feb 26, 1940

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FOR THE PAYMENT OF EXPENSES OF HIS OFFICE WERE DERIVED FROM FUNDS. " THE POSITION OF CHIEF OF ACCOUNTS IN HIS OFFICE WAS NEVERTHELESS AN "OFFICE" WITHIN THE MEANING OF THE ACT OF JULY 31. TO ANOTHER "OFFICE" TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED BY LAW. WAS VALID OR VOID BECAUSE OF THE SAID PROHIBITION DISCUSSED AND DETERMINED IN FAVOR OF ITS VALIDITY. 1940: I HAVE YOUR LETTER OF AUGUST 25. AS FOLLOWS: YOUR ATTENTION IS INVITED TO THE ATTACHED PHOTOSTATIC COPIES OF STATEMENTS FURNISHING INFORMATION IN CONNECTION WITH APPARENT DUAL SERVICE RENDERED BY MR. A DECISION IS REQUESTED AS TO WHETHER THESE PAYMENTS CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION STATUTE. IT IS UNDERSTOOD THAT MR.

B-5789, FEBRUARY 26, 1940, 19 COMP. GEN. 751

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - ACCEPTANCE OF ONE "OFFICE" VACATING ANOTHER - STATUS OF POSITION IN OFFICE OF ALIEN PROPERTY CUSTODIAN WHILE THE MONEYS AVAILABLE TO THE ALIEN PROPERTY CUSTODIAN APPOINTED TO ADMINISTER THE TRADING WITH THE ENEMY ACT OF OCTOBER 6, 1917, 40 STAT. 411, FOR THE PAYMENT OF EXPENSES OF HIS OFFICE WERE DERIVED FROM FUNDS, ETC., "DUE OR BELONGING TO AN ENEMY, OR ALLY OF ENEMY," THE POSITION OF CHIEF OF ACCOUNTS IN HIS OFFICE WAS NEVERTHELESS AN "OFFICE" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITING APPOINTMENT OF A PERSON HOLDING AN "OFFICE" WITH AN ANNUAL SALARY OF $2,500, TO ANOTHER "OFFICE" TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED BY LAW. QUESTION WHETHER APPOINTMENT TO SAID POSITION OF EMPLOYEE HOLDING AN "OFFICE," WITH SALARY OF MORE THAN $2,500 PER ANNUM, WAS VALID OR VOID BECAUSE OF THE SAID PROHIBITION DISCUSSED AND DETERMINED IN FAVOR OF ITS VALIDITY, THUS REQUIRING REFUND OF SALARY PAID UNDER THE FIRST "OFFICE" AFTER THE SECOND APPOINTMENT. VARIOUS DUAL COMPENSATION ACTS--- SECTIONS 1763, 1764, 1765, REVISED STATUTES; AND ACTS OF JULY 31, 1894, AND MAY 10, 1916, AS AMENDED--- DISCUSSED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, FEBRUARY 26, 1940:

I HAVE YOUR LETTER OF AUGUST 25, 1939, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO THE ATTACHED PHOTOSTATIC COPIES OF STATEMENTS FURNISHING INFORMATION IN CONNECTION WITH APPARENT DUAL SERVICE RENDERED BY MR. HERBERT S. WARD DURING THE PERIOD MAY 25 THROUGH MAY 29, 1925, IN THE DEPARTMENT OF AGRICULTURE AND THE OFFICE OF THE ALIEN PROPERTY CUSTODIAN.

A DECISION IS REQUESTED AS TO WHETHER THESE PAYMENTS CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION STATUTE.

IT IS UNDERSTOOD THAT MR. WARD NOW IS EMPLOYED IN YOUR DEPARTMENT.

IT APPEARS FROM THE EXHIBITS REFERRED TO IN YOUR LETTER, AND FROM OTHER INFORMATION ON FILE IN THIS OFFICE, THAT FROM MAY 25 THROUGH MAY 29, 1925, HERBERT S. WARD RECEIVED SALARY AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE IN THE AMOUNT OF $41.66, PAYMENT HAVING BEEN MADE FROM THE APPROPRIATION SALARIES, OFFICE OF SECRETARY OF AGRICULTURE, 1925. ALSO, IT APPEARS FROM EXHIBITS ATTACHED TO YOUR LETTER THAT MR. WARD RECEIVED SALARY PAYMENTS TOTALING $50 FOR THAT PERIOD ( MAY 25 TO 29, INCLUSIVE) AS AN EMPLOYEE IN THE OFFICE OF THE ALIEN PROPERTY CUSTODIAN, SUCH PAYMENTS HAVING BEEN MADE FROM THE ADMINISTRATIVE EXPENSE FUND, OFFICE OF ALIEN PROPERTY CUSTODIAN.

IT IS STATED IN MEMORANDUM ATTACHED TO YOUR LETTER THAT THE LATTER FUND IS DERIVED FROM INTEREST EARNED BY THE ESTATES OF ALIENS ADMINISTERED BY THE ALIEN PROPERTY CUSTODIAN, AND THE SUGGESTION IS MADE THAT IN VIEW OF THAT FACT THE PROHIBITIONS AGAINST RECEIVING DUAL COMPENSATION AS CONTAINED IN THE ACT OF MAY 10, 1916, AS AMENDED (39 STAT. 120, 582), MAY NOT APPLY IN THE PRESENT CASE. WITH RESPECT TO THAT SUGGESTION IT IS TO BE NOTED THAT THERE IS FOR CONSIDERATION HERE NOT ONLY THE ACT OF MAY 10, 1916, BUT, ALSO, THE SEVERAL OTHER DUAL COMPENSATION STATUTES--- PARTICULARLY SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED (5 U.S.C. 62).

PRIOR TO THE ENACTMENT OF THE 1894 ACT THE PRINCIPAL STATUTORY PROVISIONS AGAINST THE RECEIPT OF DUAL COMPENSATION WERE THOSE CONTAINED IN SECTIONS 1763, 1764, AND 1765, REVISED STATUTES. IT WAS PROVIDED, IN SUBSTANCE, BY THOSE THREE SECTIONS THAT ONE WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500 SHOULD NOT RECEIVE COMPENSATION FOR DISCHARGING THE DUTIES OF ANY OTHER OFFICE; THAT NO ALLOWANCE, ADDITIONAL PAY, OR COMPENSATION IN ANY FORM SHOULD BE MADE TO ANY OFFICER OR CLERK FOR THE DISBURSEMENT OF PUBLIC MONEY OR FOR ANY EXTRA SERVICE WHATEVER, UNLESS AN EXPRESS AUTHORIZATION WAS MADE BY LAW FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION. IN JANUARY 1887 THE SUPREME COURT OF THE UNITED STATES, CONSTRUING SAID THREE SECTIONS TOGETHER, REACHED THE CONCLUSION THAT THEY MERELY PROHIBIT A PERSON WHO HOLDS A DESIGNATED OFFICE OR APPOINTMENT FOR WHICH DEFINITE COMPENSATION IS PROVIDED, FROM RECEIVING EXTRA COMPENSATION FOR ADDITIONAL DUTIES ADDED TO OR CONNECTED WITH THE REGULAR DUTIES OF THE SAME OFFICE, BUT THAT THEY HAVE NO APPLICATION TO A CASE WHERE TWO DISTINCT OFFICES OR EMPLOYMENTS, EACH WITH ITS OWN COMPENSATION FIXED BY LAW OR REGULATION, ARE HELD BY ONE PERSON AT THE SAME TIME. UNITED STATES V. SAUNDERS, 120 U.S. 126, 129. THIS CONSTRUCTION WAS AGAIN EMBRACED AND APPLIED IN MARCH 1893, IN THE CASE OF UNITED STATES V. MCCANDLESS, 147 U.S. 692. THE FOLLOWING YEAR THE ACT OF JULY 31, 1894, 28 STAT. 205, REFERRED TO ABOVE, WAS ENACTED INTO LAW. IT WAS PROVIDED THEREIN HAT:

* * * NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; * * * REFERRING TO THIS ENACTMENT THE COURT OF CLAIMS, IN PACK V. UNITED STATES, 41 CT.1CLS. 414, 428, STATED:

THE EVIDENT PURPOSE OF THE CONGRESS BY THE ACT OF 1894 WAS TO REMEDY THE MISCHIEF WHICH WAS NOT CURED BY THE PREVIOUS LEGISLATION RESPECTING DUAL COMPENSATION OF OFFICERS OF THE GOVERNMENT. THE PREVIOUS LEGISLATION HAD BEEN CONSTRUED AS NOT PROHIBITING THE HOLDING BY THE SAME PERSON OF TWO DISTINCT OFFICES, EACH WITH ITS OWN DUTIES AND COMPENSATION, AND TO THAT END THE ACT OF 1894 WAS PASSED, WHICH IN EXPRESS TERMS PROHIBITS THE APPOINTMENT TO OR THE HOLDING OF AN OFFICE BY ANYONE WHO AT THE TIME HOLDS AN OFFICE WITH A SALARY OF $2,500 ATTACHED, UNLESS SPECIALLY AUTHORIZED BY LAW.

THE ACT OF MAY 10, 1916, REFERRED TO IN THE MEMORANDUM ATTACHED TO YOUR LETTER, DID NOT SUPERSEDE OR DISPLACE THE PRIOR DUAL COMPENSATION LAWS, BUT CONSTITUTED RATHER, AN ADDITION TO THEN EXISTING LEGISLATION UPON THE SUBJECT OF DUAL COMPENSATION. IT PROVIDED IN PERTINENT PART THAT:

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, * * *

THERE APPEARS TO BE NO QUESTION IN THE PRESENT CASE BUT THAT THE POSITION HELD BY MR. WARD IN THE DEPARTMENT OF AGRICULTURE WAS OF A CHARACTER COVERED BY THE TERMS OF BOTH THE 1894 AND THE 1916 ACTS, AND THAT HIS APPOINTMENT TO ANOTHER OFFICE OF THE SAME OR SIMILAR NATURE WHILE OCCUPYING SAID POSITION WAS, IN THE ABSENCE OF SPECIAL STATUTORY AUTHORIZATION, PROHIBITED BY SAID LAWS. HOWEVER, AS PREVIOUSLY NOTED, THE POSITION OF CHIEF OF ACCOUNTS, OFFICE OF ALIEN PROPERTY CUSTODIAN, IS IN CERTAIN RESPECTS DISSIMILAR TO AN OFFICE SUCH AS THE ONE HELD BY WARD IN THE DEPARTMENT OF AGRICULTURE. THEREFORE, IN ORDER TO DETERMINE WHETHER HIS APPOINTMENT TO THE NEW POSITION AND HIS OCCUPANCY THEREOF IN THE OFFICE OF ALIEN PROPERTY CUSTODIAN WHILE HE WAS EMPLOYED, ALSO, IN THE DEPARTMENT OF AGRICULTURE CONSTITUTES A VIOLATION OF THE ABOVE-QUOTED LAWS, OR EITHER OF THEM, IT IS NECESSARY TO CONSIDER THE CHARACTER OF SAID NEW POSITION, THE NATURE OF THE ADMINISTRATIVE EXPENSE FUND, ETC.

BY THE TERMS OF THE TRADING WITH THE ENEMY ACT OF OCTOBER 6, 1917, 40 STAT. 411, THE PRESIDENT WAS AUTHORIZED TO APPOINT AN ALIEN PROPERTY CUSTODIAN AND SUCH OTHER EMPLOYEES AS WERE NECESSARY ,FOR THE DUE ADMINISTRATION OF THE PROVISIONS OF THIS ACT.' THE ALIEN PROPERTY CUSTODIAN WAS EMPOWERED TO RECEIVE MONEY AND PROPERTY IN THE UNITED STATES "DUE OR BELONGING TO AN ENEMY OR ALLY OF ENEMY.' SECTION 6 OF THE ACT. THE MONEY SO RECEIVED WAS TO "BE DEPOSITED FORTHWITH IN THE TREASURY OF THE UNITED STATES" AND MIGHT BE INVESTED AND REINVESTED BY THE SECRETARY OF THE TREASURY IN UNITED STATES BONDS OR CERTIFICATES OF INDEBTEDNESS UNDER SUCH RULES AND REGULATIONS AS THE PRESIDENT SHOULD PRESCRIBE. ALL THE OTHER PROPERTY TRANSFERRED OR DELIVERED TO THE ALIEN PROPERTY CUSTODIAN PURSUANT TO THE TERMS OF THE ACT WAS TO BE HELD AND ADMINISTERED BY HIM (WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT), AND HE WAS EMPOWERED BY SECTION 12 OF SAID ACT, AS AMENDED (40 STAT. 411 AND 460), TO "MANAGE SUCH PROPERTY AND DO ANY ACT OR THINGS IN RESPECT THEREOF OR MAKE ANY DISPOSITION THEREOF OR OF ANY PART THEREOF, BE OR BECOME APPURTENANT THERETO OR TO THE OWNERSHIP THEREOF IN LIKE MANNER AS THOUGH HE WERE THE ABSOLUTE OWNER THEREOF * * *.' FROM THE FUNDS AND PROPERTY SO HELD THE ALIEN PROPERTY CUSTODIAN WAS AUTHORIZED, BY THE ACT OF MARCH 4, 1923 (42 STAT. 1516), AMONG OTHER THINGS, TO PAY THE NECESSARY EXPENSES INCURRED BY HIM "IN PROTECTING OR ADMINISTERING THE SAME"--- SAID EXPENSES TO BE PAID "OUT OF THE MONEY OR OTHER PROPERTY * * * IN RESPECT OF WHICH SUCH EXPENSES ARE INCURRED, OR (IF SUCH MONEY OR OTHER PROPERTY IS INSUFFICIENT) OUT OF ANY OTHER MONEY OR PROPERTY HELD FOR THE SAME PERSON.' SECTION 24 OF THE ACT. WITH RESPECT TO THE PAYMENT OF SUCH EXPENSES IT IS PROVIDED, ALSO, IN SECTION (3) (B) OF EXECUTIVE ORDER 2813, DATED FEBRUARY 26, 1918, THAT---

THE ALIEN PROPERTY CUSTODIAN MAY PAY ALL REASONABLE AND PROPER EXPENSES WHICH MAY BE INCURRED IN OR ABOUT SECURING POSSESSION OR CONTROL OF MONEY OR OTHER PROPERTY AND IN OR ABOUT COLLECTING DIVIDENDS, INTEREST, AND OTHER INCOME THEREFROM, AND IN OTHERWISE PROTECTING AND ADMINISTERING THE SAME. SO FAR AS MAY BE, ALL SUCH EXPENSES SHALL BE PAID OUT OF, AND IN ANY EVENT RECORDED AS A CHARGE AGAINST, THE ESTATE TO WHICH SUCH MONEY OR OTHER PROPERTY BELONGS. ALSO, SEE SECTION 8 OF " POWERS OF MANAGEMENT AND ADMINISTRATION, INCLUDING SALE OR OTHER DISPOSITION" AS CONTAINED IN EXECUTIVE ORDER 2916 OF JULY 16, 1918. APPARENTLY IT WAS PURSUANT TO AUTHORITY THUS PROVIDED THAT MR. WARD WAS EMPLOYED AS CHIEF OF ACCOUNTS, OFFICE OF ALIEN PROPERTY CUSTODIAN, AND THAT THERE WAS ESTABLISHED THE ADMINISTRATIVE EXPENSE FUND FROM WHICH HIS SALARY, AS SUCH OFFICIAL, WAS PAID.

IT WILL THUS BE NOTED THAT HE WAS APPARENTLY APPOINTED PURSUANT TO THE TERMS OF THE TRADING WITH THE ENEMY ACT TO ASSIST IN THE ADMINISTRATION OF SAID LAW. THE POSITION WHICH HE HELD, HAVING BEEN ESTABLISHED PURSUANT TO AUTHORITY CREATED BY FEDERAL LAW, WAS CLEARLY "A PUBLIC STATION, OR EMPLOYMENT, CONFERRED BY THE APPOINTMENT OF GOVERNMENT" AND EMBRACED "THE IDEAS OF TENURE, DURATION, EMOLUMENT, AND DUTIES.' ACCORDINGLY, IT CONFORMS TO THE ACCEPTED AND FREQUENTLY QUOTED DEFINITION OF THE TERM "OFFICE.' UNITED STATES V. HARTWELL, 6 WALL. 385, 393. THE TERM "OFFICER" BEING ONE "INSEPARABLY CONNECTED WITH AN OFFICE" ( METCALF AND EDDY V. MITCHELL, 269 U.S. 514, 520), IT FOLLOWS THAT MR. WARD OCCUPIED SAID OFFICE IN THE OFFICE OF ALIEN PROPERTY CUSTODIAN, IN THE CAPACITY OF AN OFFICER OF THE UNITED STATES.

AS PREVIOUSLY NOTED, IT IS CLEAR, ALSO, THAT THE POSITION OCCUPIED BY MR. WARD IN THE DEPARTMENT OF AGRICULTURE IS WITHIN THE DEFINITION OF THE TERM "OFFICE.' SINCE HIS COMPENSATION AS OCCUPANT OF THIS "OFFICE" WAS $3,000 PER YEAR, IT FOLLOWS THAT SO LONG AS HE HELD IT HE WAS A PUBLIC OFFICER HOLDING "AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTED TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894. THEREFORE, THE TERMS OF THIS ACT, SO LONG AS HE CONTINUED TO OCCUPY THE DEPARTMENT OF AGRICULTURE POSITION HE WAS PROHIBITED FROM BEING APPOINTED TO OR HOLDING "ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW.' NO SUCH SPECIFIC AUTHORIZATION HAVING BEEN MADE, IT FOLLOWS THAT IF HIS APPOINTMENT TO THE OFFICE OF CHIEF OF ACCOUNTS IN THE ALIEN PROPERTY CUSTODIAN'S OFFICE WAS TO BE EFFECTIVE PRIOR TO HIS SEPARATION FROM THE OFFICE HELD BY HIM IN THE DEPARTMENT OF AGRICULTURE, THE NEW APPOINTMENT "MIGHT WELL BE HELD TO BE VOID, LEAVING THE PERSON IN POSSESSION OF THE FIRST OFFICE.' UNITED STATES V. HARSHA, 172 U.S. 567, 572.

THE QUESTION REMAINS AS TO WHETHER THE APPOINTMENT AS CHIEF OF ACCOUNTS OCCURRED WHILE WARD WAS IN FACT AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, AND WAS THEREFORE VOID, OR WHETHER IT OCCURRED AFTER HIS SEPARATION FROM SERVICE IN SAID DEPARTMENT, AND WAS THEREFORE VALID. COURSE, IF THE NEW APPOINTMENT WAS VOID, THE ONLY COMPENSATION TO WHICH WARD WAS ENTITLED DURING THE PERIOD HERE IN QUESTION WAS THAT PROVIDED BY THE POSITION IN THE DEPARTMENT OF AGRICULTURE. ON THE OTHER HAND, IF THE NEW APPOINTMENT WAS VALID, IT MUST BE BECAUSE AT THE TIME IT WAS MADE WARD WAS NO LONGER OCCUPYING THE POSITION IN THE DEPARTMENT OF AGRICULTURE, IN WHICH EVENT THE ONLY COMPENSATION PROPERLY FOR PAYMENT WAS THAT PROVIDED BY THE NEW POSITION IN THE OFFICE OF THE ALIEN PROPERTY CUSTODIAN.

IT IS NOT TO BE PRESUMED THAT THE PARTIES TO THIS NEW APPOINTMENT INTENDED TO ACT IN VIOLATION OF LAW. AS STATED BY THE COURT OF CLAIMS IN MCMUTH V. UNITED STATES, 51 CT.1CLS., 356, 361: "WE SHOULD CONSTRUE THE ACT OF APPOINTMENT IN SUCH MANNER AS TO GIVE IT VALIDITY INSTEAD OF INVALIDITY WHEN THAT COURSE CAN BE ADOPTED.' AFFIRMED, 248 U.S. 151. ACCORDINGLY, THERE APPEARS FOR APPLICATION HERE THE RULE THAT "AN OFFICER WHO ACCEPTS ANOTHER APPOINTMENT INCONSISTENT WITH THE FIRST WILL BE REGARDED AS HAVING RESIGNED OR VACATED THE FIRST OFFICE.' 3 COMP. GEN. 1012, 1013, AND CASES THERE CITED. IT FOLLOWS THAT WARD WAS NOT LEGALLY IN THE EMPLOY OF THE DEPARTMENT OF AGRICULTURE DURING THE PERIOD MAY 25 TO MAY 29, 1925, INCLUSIVE, AND THAT APPROPRIATE STEPS SHOULD BE TAKEN TO EFFECT COLLECTION OF THE $41.66 PAID TO HIM FOR THIS PERIOD BY A. ZAPPONE, DISBURSING CLERK, DEPARTMENT OF AGRICULTURE, ON D.O. VOUCHER 209909. ANY MONEY SO COLLECTED SHOULD BE DEPOSITED INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION, 101500, SALARIES, OFFICE OF SECRETARY OF AGRICULTURE, 1925.