B-63048, FEBRUARY 12, 1947, 26 COMP. GEN. 592

B-63048: Feb 12, 1947

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IS NOT TO BE APPLIED TO REQUIRE PAYMENT OF ONLY A PRO-RATA PROPORTION OF $7. IS NOT TO BE APPLIED TO REQUIRE PAYMENT OF ONLY A PRORATA PROPORTION OF $7. 1947: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15. FEES OF UNITED STATES COMMISSIONERS ARE PAID OUT OF THE TREASURY UPON APPROVAL OF THEIR ACCOUNTS BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. IS SUBJECT TO FINAL SETTLEMENT OF THE ACCOUNTS IN THE GENERAL ACCOUNTING OFFICE. 500 LIMITATION IS TO BE CONSIDERED TO TAKE EFFECT FROM SEPTEMBER 1. IN THE EVENT A UNITED STATES COMMISSIONER IS APPOINTED SUBSEQUENT TO JANUARY ST OF ANY CALENDAR YEAR. IS HE ENTITLED TO BE PAID UP TO THE MAXIMUM LIMITATION OF $7. IN THE SETTLEMENT OF AN ACCOUNT OF A UNITED STATES COMMISSIONER WHO ALSO HOLDS THE POSITION OF DEPUTY CLERK A UNITED STATES DISTRICT COURT IT IS PROPOSED THAT IN COMPUTING THE LIMITATION OF THE AGGREGATE COMPENSATION OF $3.

B-63048, FEBRUARY 12, 1947, 26 COMP. GEN. 592

UNITED STATES COMMISSIONERS' FEES THE ACT OF AUGUST 1, 1946--- EFFECTIVE SEPTEMBER 1, 1946--- AMENDING THE ACT OF MAY 28, 1896, TO PROVIDE A NEW SCHEDULE OF FEES FOR UNITED STATES COMMISSIONERS, AND IMPOSING, BY SECTION 3 THEREOF, A LIMITATION OF $7,500 ON THE AMOUNT OF COMPENSATION WHICH MAY BE RECEIVED AS A COMMISSIONER FOR ANY ONE CALENDAR YEAR (EXCLUSIVE OF ADDITIONS UNDER SECTION 521 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED), HAS NO RETROACTIVE OPERATION TO REQUIRE INCLUSION OF FEES EARNED PRIOR TO SEPTEMBER 1, 1946, UNDER THE 1896 ACT AS PART OF THE $7,500 LIMITATION. THE PROVISION OF SECTION 3 OF THE ACT OF AUGUST 1, 1946--- EFFECTIVE SEPTEMBER 1, 1946--- IMPOSING A LIMITATION OF $7,500 ON THE AMOUNT OF COMPENSATION A UNITED STATES COMMISSIONER MAY RECEIVE IN THAT CAPACITY "FOR ANY ONE CALENDAR YEAR" (EXCLUSIVE OF ADDITIONS UNDER SECTION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED), IS NOT TO BE APPLIED TO REQUIRE PAYMENT OF ONLY A PRO-RATA PROPORTION OF $7,500 FOR THE PERIOD SEPTEMBER 1 THROUGH DECEMBER 31, 1946; INSTEAD, A COMMISSIONER MAY BE PAID EARNED FEES UP TO $7,500 FOR SUCH PERIOD. IN THE CASE OF A UNITED STATES COMMISSIONER APPOINTED AFTER JANUARY 1 OF ANY CALENDAR YEAR, THE PROVISION OF SECTION 3 OF THE ACT OF AUGUST 1, 1946, IMPOSING A LIMITATION OF $7,500 ON THE AMOUNT OF COMPENSATION A COMMISSIONER MAY RECEIVE IN THAT CAPACITY "FOR ANY ONE CALENDAR YEAR" (EXCLUSIVE OF ADDITIONS UNDER SECTION 521 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED), IS NOT TO BE APPLIED TO REQUIRE PAYMENT OF ONLY A PRORATA PROPORTION OF $7,500 FOR HIS PERIOD OF SERVICE IN THAT CALENDAR YEAR; INSTEAD, EARNED FEES UP TO $7,500 MAY BE PAID FOR SUCH PERIOD. IN THE SETTLEMENT OF THE ACCOUNTS OF A UNITED STATES COMMISSIONER ALSO HOLDING THE POSITION OF DEPUTY CLERK OF A UNITED STATES DISTRICT COURT, WHO MAY RECEIVE AGGREGATE COMPENSATION NOT EXCEEDING THE RATE OF $3,000 PER ANNUM (28 U.S.C. 569), COMPUTATION OF THE AGGREGATE COMPENSATION LIMITATION SHOULD BE MADE ON A QUARTERLY BASIS.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEBRUARY 12, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1947, AS FOLLOWS:

UNDER PUBLIC LAW 498, 79TH CONGRESS (2ND SESSION), APPROVED JULY 10, 1946, FEES OF UNITED STATES COMMISSIONERS ARE PAID OUT OF THE TREASURY UPON APPROVAL OF THEIR ACCOUNTS BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. SUCH PAYMENT, HOWEVER, IS SUBJECT TO FINAL SETTLEMENT OF THE ACCOUNTS IN THE GENERAL ACCOUNTING OFFICE.

PUBLIC LAW 582, 79TH CONGRESS (2ND SESSION), APPROVED AUGUST 1, 1946, WHICH BECAME EFFECTIVE SEPTEMBER 1, 1946, PRESCRIBES A NEW SCHEDULE OF FEES FOR UNITED STATES COMMISSIONERS.

SECTION 3 OF PUBLIC LAW 582 PROVIDES THAT," NO COMMISSIONER MAY RECEIVE COMPENSATION FOR HIS SERVICES IN THAT CAPACITY IN EXCESS OF $7,500 FOR ANY ONE CALENDAR YEAR (EXCLUSIVE OF ADDITIONS UNDER SECTION 521 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY SECTION 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946).' THE QUESTION HAS ARISEN IN THE APPLICATION OF THIS SECTION TO ACCOUNTS SUBMITTED BY UNITED STATES COMMISSIONERS FOR THE PERIOD, SEPTEMBER 1 THROUGH DECEMBER 31, 1946, AS TO WHETHER A COMMISSIONER MAY EARN UP TO THE $7,500 LIMITATION OF THE BASIC FEES CONTEMPLATED BY LAW AS THE MAXIMUM FOR A CALENDAR YEAR, OR BE HELD TO A PRORATA PROPORTION OF THE YEARLY LIMITATION. THEREFORE, WE SUBMIT FOR YOUR CONSIDERATION THE FOLLOWING QUESTIONS REGARDING THE SETTLEMENT OF ACCOUNTS SUBMITTED BY UNITED STATES COMMISSIONERS FOR FEES EARNED UNDER PUBLIC LAW 582:

1. SHOULD THE FEES EARNED BY A UNITED STATES COMMISSIONER DURING THE CALENDAR YEAR 1946 PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 582( SEPTEMBER 1, 1946), BE INCLUDED AS A PART OF THE $7,500 LIMITATION IMPOSED IN SECTION 3 OF PUBLIC LAW 582?

2. IF NOT, AND THE $7,500 LIMITATION IS TO BE CONSIDERED TO TAKE EFFECT FROM SEPTEMBER 1, 1946, MAY A COMMISSIONER RECEIVE COMPENSATION UP TO THE MAXIMUM OF $7,500 BASIC FEES FOR THE PERIOD FROM SEPTEMBER 1, THROUGH DECEMBER 31, 1946, OR SHOULD HE BE HELD TO A PRORATA SHARE OF 1/3 OF $7,500 FOR THE LAST FOUR MONTHS OF THE CALENDAR YEAR 1946?

3. IN THE EVENT A UNITED STATES COMMISSIONER IS APPOINTED SUBSEQUENT TO JANUARY ST OF ANY CALENDAR YEAR, IS HE ENTITLED TO BE PAID UP TO THE MAXIMUM LIMITATION OF $7,500 BASIC FEES FOR HIS PERIOD OF SERVICE IN THAT YEAR, OR SHOULD THE MAXIMUM LIMITATION ($7,500) BE PRORATED ON THE BASIS OF THE LENGTH OF SERVICE IN THE PARTICULAR YEAR?

4. IN THE SETTLEMENT OF AN ACCOUNT OF A UNITED STATES COMMISSIONER WHO ALSO HOLDS THE POSITION OF DEPUTY CLERK A UNITED STATES DISTRICT COURT IT IS PROPOSED THAT IN COMPUTING THE LIMITATION OF THE AGGREGATE COMPENSATION OF $3,000 PER ANNUM UNDER THE STATUTE (28 U.S.C. 569) SUCH COMPUTATION WILL BE MADE ON A QUARTERLY BASIS WHEN THE COMMISSIONER'S ACCOUNT IS SUBMITTED TO THIS OFFICE. IS THIS CORRECT?

AS WE ARE HOLDING IN ABEYANCE THE PAYMENT OF SEVERAL ACCOUNTS OF UNITED STATES COMMISSIONERS YOUR EARLY CONSIDERATION OF THESE MATTERS WILL BE GREATLY APPRECIATED.

THE REFERRED-TO PUBLIC LAW 582 AMENDED THE ACT OF MAY 28, 1896, 28 U.S.C. 597, UNDER WHICH STATUTE THE FEES EARNED BY UNITED STATES COMMISSIONERS DURING THE CALENDAR YEAR 1946 PRIOR TO SEPTEMBER ST, ARE PAYABLE. SINCE THE 1896 LAW DID NOT PRESCRIBE ANY LIMITATION UPON THE AGGREGATE AMOUNT OF FEES TO BE PAID TO COMMISSIONERS, IT IS EVIDENT THAT INCLUSION OF THE FEES EARNED PRIOR TO SEPTEMBER 1, 1946, AS PART OF THE $7,500 LIMITATION PROVIDED BY SECTION 3 OF PUBLIC LAW 582, 60 STAT. 753, WOULD RESULT IN FIXING A LIMITATION UPON THE AMOUNT OF SAID FEES, WHERE NONE THERETOFORE HAD EXISTED, BY RETROSPECTIVE APPLICATION OF THE TERMS OF SAID SECTION 3.

THE GENERAL RULE IS THAT STATUTES ARE CONSTRUED TO APPLY PROSPECTIVELY AND NOT RETROACTIVELY UNLESS A RETROACTIVE CONSTRUCTION IS REQUIRED BY EXPRESS LANGUAGE OR BY NECESSARY IMPLICATION. SEE 16 COMP. GEN. 1051 AND CASES THERE CITED, INCLUDING UNITED STATES V. ST. LOUIS, ETC., RY. CO., 270 U.S. 1. SEE, ALSO, 20 COMP. GEN. 769, 771; 7 ID. 266, AND AUTHORITIES THERE CITED. WITH RESPECT TO THE EFFECT OF AN AMENDMENT OF A STATUTE IT WAS SAID BY THE SUPREME COURT OF THE UNITED STATES IN BLAIR V. CHICAGO, 201 U.S. 400, 475, THAT:

* * * THE RULE IS CORRECTLY STATED IN ENDLICH ON STATUTES, SECTION 294, AS FOLLOWS: "A STATUTE WHICH IS AMENDED IS THEREAFTER, AND AS TO ALL ACTS SUBSEQUENTLY DONE, TO BE CONSTRUED AS IF THE AMENDMENT HAD ALWAYS BEEN THERE, AND THE AMENDMENT ITSELF SO THOROUGHLY BECOMES A PART OF THE ORIGINAL STATUTE, THAT IT MUST BE CONSTRUED, IN VIEW OF THE ORIGINAL STATUTE, AS IT STANDS AFTER THE AMENDMENTS ARE INTRODUCED AND THE MATTERS SUPERSEDED BY THE AMENDMENTS ELIMINATED.' * * *

IN LEWIS' SUTHERLAND STATUTORY CONSTRUCTION, PARAGRAPH 237, IT IS SAID WITH REFERENCE TO THE EFFECTIVE DATE OF AN AMENDMENT OF STATUTES THAT:

* * * THE NEW PARTS OR THE CHANGED PORTIONS ARE NOT TO BE TAKEN TO HAVE BEEN THE LAW AT ANY TIME PRIOR TO THE PASSAGE OF THE AMENDED ACT. THE CHANGE TAKES EFFECT PROSPECTIVELY ACCORDING TO THE GENERAL RULE. * * *

AND IN BLACK ON INTERPRETATION OF LAWS, 584, IT IS SAID:

AN AMENDATORY STATUTE, LIKE OTHER LEGISLATIVE ACTS, TAKES EFFECT ONLY FROM ITS PASSAGE, AND WILL NOT BE CONSTRUED AS RETROACTIVE OR AS APPLYING TO PRIOR FACTS OR TRANSACTIONS, OR TO PENDING PROCEEDINGS, UNLESS A CONTRARY INTENTION IS EXPRESSLY STATED OR NECESSARILY IMPLIED.

THERE IS NO EXPRESS PROVISION CONTAINED IN PUBLIC LAW 582 MAKING IT RETROACTIVELY EFFECTIVE, NOR DOES AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE MEASURE DISCLOSE ANY BASIS FOR IMPLYING A LEGISLATIVE INTENTION TO GIVE IT SUCH EFFECT. THEREFORE, AND APPLYING TO THE PRESENT MATTER THE RULE OF STATUTORY CONSTRUCTION ABOVE REFERRED TO, IT MAY BE CONCLUDED THAT THE LIMITATION OF $7,500 ESTABLISHED BY SECTION 3 OF PUBLIC LAW 582, IS REFERABLE ONLY TO THE FEES PROVIDED FOR IN SAID ACT. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

WHILE THERE IS A SLIGHT DISTINCTION IN THE FACTUAL SITUATIONS UPON WHICH YOUR SECOND AND THIRD QUESTIONS ARE PREDICATED, IT WOULD APPEAR THAT BOTH QUESTIONS PRESENT THE SAME GENERAL PROBLEM, NAMELY, WHERE THE PERIOD OF SERVICE IS LESS THAN A FULL CALENDAR YEAR, MAY A COMMISSIONER BE PAID EARNED FEES UP TO THE MAXIMUM AMOUNT OF $7,500, OR SHOULD HE BE PAID A PRORATA PROPORTION OF SAID AMOUNT UPON THE BASIS OF THE LENGTH OF SERVICE WITHIN THE YEAR?

THE PROVISION OF LAW HERE INVOLVED LIMITS THE AMOUNT OF COMPENSATION PAYABLE TO A COMMISSIONER ,FOR ANY ONE CALENDAR YEAR.' THE TERM "CALENDAR YEAR" APPEARING IN STATUTES CONSISTENTLY HAS BEEN CONSTRUED TO MEAN THE YEAR FROM JANUARY ST TO DECEMBER 31ST, INCLUSIVE, AN A PERIOD OF 12 MONTHS COMMENCING ON A FIXED DAY OF A DESIGNATED MONTH AND TERMINATING WITH THE CORRESPONDING DAY AND MONTH IN THE NEXT SUCCEEDING YEAR. UNITED STATES V. BUSSEY, 51 F.1SUPP. 996; APPLICATION OF TITLE GUARANTEE AND TRUST CO., 48 N.Y.S.2D 374; BELL V. MACKEY, 3 S.E.2D 816; CARROLL V. WRIGHT, 63 S.E. 260.

THEREFORE, AND SINCE THERE IS NOTHING IN THE INSTANT ACT EXPRESSLY OR BY REASONABLE IMPLICATION PRESCRIBING A MAXIMUM RATE OF COMPENSATION TO BE PAID TO COMMISSIONERS (CF. THE STATUTES INVOLVED IN 20 COMP. GEN. 803; 23 ID. 94), THERE IS JUSTIFIED THE VIEW THAT PAYMENT OF EARNED FEES UP TO THE MAXIMUM AMOUNT OF $7,500 IS AUTHORIZED UNDER THE LAW WHERE THE ENTIRE PERIOD OF SERVICE WITHIN A CALENDAR YEAR IS LESS THAN 12 MONTHS.

IN THAT CONNECTION, THERE WOULD APPEAR TO BE OF PARTICULAR RELEVANCE THE DECISION OF THE SUPREME COURT IN UNITED STATES V. DICKSON, 40 U.S. 141. IN THAT CASE THE DEFENDANT DICKSON WAS EMPLOYED BY THE GOVERNMENT AS A RECEIVER OF PUBLIC MONEYS UNDER A STATUTE WHICH PROVIDED FOR THE PAYMENT TO HIM OF COMPENSATION IN THE FORM OF A COMMISSION OF ONE PERCENT ON THE MONEYS RECEIVED BUT WITH THE PROVISO THAT THE AMOUNT THEREOF SHALL NOT EXCEED THE SUM OF $2,500 "FOR ANY ONE YEAR.' DICKSON HELD OFFICE FROM NOVEMBER 22, 1833, UNTIL JULY 26, 1836, WHEN HE RESIGNED. DICKSON CLAIMED, UNDER THE STATUTE, THE MAXIMUM COMMISSION OF $2,500 FOR EACH YEAR, INCLUDING THE FRACTION OF THE LAST YEAR, VIZ., FROM NOVEMBER 22, 1835, TO JULY 26, 1836. WITH RESPECT TO THIS LESSER PERIOD, THE GOVERNMENT URGED THAT DICKSON WAS ENTITLED TO ONLY A PORTION OF THE COMMISSIONS ON THE MONEY RECEIVED BY HIM, LIMITING THE SAME TO THE PROPORTION OF THE YEAR HE WAS IN OFFICE. THE COURT REJECTED THIS CONTENTION AND HELD THAT THE RECEIVER HAD A RIGHT TO CHARGE THE WHOLE YEARLY MAXIMUM OF COMMISSIONS FOR THE FRACTIONAL PORTION OF THE FINAL YEAR IN WHICH HE SERVED.

THE POINT INVOLVED IN THE FOREGOING DECISION IS NOT DISTINGUISHABLE IN ANY MATERIAL RESPECT FROM THE MATTERS UNDER CONSIDERATION HERE AND, THEREFORE, WOULD APPEAR TO CONTROL THE RESULT TO BE REACHED. ACCORDINGLY, IN ANSWER TO YOUR SECOND QUESTION, IT MAY BE HELD THAT A COMMISSIONER IS ENTITLED TO RECEIVE FEES UP TO THE MAXIMUM OF $7,500 FOR THE PERIOD SEPTEMBER 1 THROUGH DECEMBER 31, 1946; AND, SO FAR AS CONCERNS YOUR THIRD QUESTION, YOU ARE ADVISED THAT WHERE A COMMISSIONER IS APPOINTED SUBSEQUENT TO JANUARY ST OF ANY CALENDAR YEAR HE IS ENTITLED TO BE PAID HIS EARNED FEES UP TO SAID MAXIMUM LIMITATION FOR HIS PERIOD OF SERVICE IN THAT YEAR.

WITH RESPECT TO YOUR FOURTH QUESTION, IT WILL BE NOTED FROM SECTION 21 (B), 70 STAT. 752, THAT FEES ARE PROVIDED FOR THEREIN, VARYING IN AMOUNTS DEPENDENT UPON THE NUMBER OF CASES DISPOSED OF BY COMMISSIONER "DURING THE QUARTERLY ACCOUNTING PERIOD.' THEREFORE, IT IS REQUIRED THAT THE ACCOUNTS OF COMMISSIONERS WHO ALSO HOLD THE POSITION OF DEPUTY CLERK OF A UNITED STATES DISTRICT COURT BE SETTLED ON A QUARTERLY BASIS. SEE, ALSO, 23 COMP. GEN. 94, SUPRA. QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.