B-78215, AUGUST 4, 1948, 28 COMP. GEN. 80

B-78215: Aug 4, 1948

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ARE FOR APPLICATION TO THE PER DIEM COMPENSATION OF SUPERVISING CONCILIATION COMMISSIONERS OF THE JUDICIAL BRANCH OF THE GOVERNMENT UPON A PRORATED DAILY BASIS. ARE NOT APPLICABLE TO OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS FIXED UPON A FEE BASIS. I HAVE YOUR LETTER OF JULY 8. IS APPLICABLE TO THE COMPENSATION OF UNITED STATES COMMISSIONERS. WHOSE RATE OF COMPENSATION IS INCREASED BY SECTION 2. WAS AMENDED BY THE ACT OF AUGUST 1. INSTRUCTIONS WERE ISSUED TO COMMISSIONERS FOR THE DISTRICT OF ALASKA BY THE ATTORNEY GENERAL. WHICH INSTRUCTIONS YOU STATE WERE ADOPTED BY THE ADMINISTRATIVE OFFICE. THE FEES OF CONCILIATION COMMISSIONERS AND THE PER DIEM COMPENSATION OF SUPERVISING CONCILIATION COMMISSIONERS HAVE BEEN HELD SUBJECT TO THE INCREASES IN THE 1945 AND 1946 PAY ACTS.

B-78215, AUGUST 4, 1948, 28 COMP. GEN. 80

POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 - COMPENSATION ON PER DIEM BASIS; COMPENSATION ON FEE BASIS THE PROVISIONS OF SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 WHICH, IN CONTEMPLATION OF A FULL YEAR'S SERVICE, AUTHORIZE THE PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF $330 PER ANNUM, ARE FOR APPLICATION TO THE PER DIEM COMPENSATION OF SUPERVISING CONCILIATION COMMISSIONERS OF THE JUDICIAL BRANCH OF THE GOVERNMENT UPON A PRORATED DAILY BASIS, BY ADDING 1/260 OF $330 TO THE PREVIOUS PER DIEM RATE AS INCREASED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. THE PROVISIONS OF SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, AUTHORIZING THE PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF $330 PER ANNUM, ARE NOT APPLICABLE TO OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS FIXED UPON A FEE BASIS, AND, THEREFORE, NO ADDITIONAL COMPENSATION MAY BE PAID THEREUNDER TO UNITED STATES COMMISSIONERS, UNITED STATES COMMISSIONERS IN ALASKA, OR CONCILIATION COMMISSIONERS.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AUGUST 4, 1948;

I HAVE YOUR LETTER OF JULY 8, 1948, REQUESTING DECISION WHETHER SECTION 301, TITLE III, OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, PUBLIC LAW 900, IS APPLICABLE TO THE COMPENSATION OF UNITED STATES COMMISSIONERS, UNITED STATES COMMISSIONERS IN ALASKA, SUPERVISING CONCILIATION COMMISSIONERS, AND CONCILIATION COMMISSIONERS, AND, IF SO, THE FORMULAS TO BE USED IN APPLYING THE INCREASES TO THEIR RESPECTIVE COMPENSATIONS.

SECTION 301 OF THE ACT OF JULY 3, 1948, PUBLIC LAW 900, 62 STAT. 1267, PROVIDES:

SEC. 301. EXCEPT AS PROVIDED IN SECTION 303, EACH OFFICER AND EMPLOYEE OF THE FEDERAL GOVERNMENT, AND EACH OFFICER AND EMPLOYEE OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, WHOSE RATE OF COMPENSATION IS INCREASED BY SECTION 2, 3, 4, 5, OR 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 SHALL RECEIVE ADDITIONAL COMPENSATION AT THE RATE OF $330 PER ANNUM; PROVIDED, THAT ANY EMPLOYEE PAID ON AN HOURLY OR PART-TIME BASIS SHALL RECEIVE ADDITIONAL COMPENSATION AT THE RATE OF 20 CENTS PER HOUR.

SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, WHICH PRESCRIBED THE FEES WHICH MIGHT BE CHARGED BY UNITED STATES COMMISSIONERS, WAS AMENDED BY THE ACT OF AUGUST 1, 1946, 60 STAT. 752, 753, WHICH PROVIDES IN PERTINENT PART;

SEC. 21. THE FEES OF THE UNITED STATES COMMISSIONERS FOR THE FOLLOWING SERVICES IN CONNECTION WITH CRIMINAL CASES SHALL BE PROVIDED IN THE FOLLOWING SUBDIVISION OF THIS SECTION. THE ADDITIONAL COMPENSATION PROVIDED FOR BY SECTION 521 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, SHALL APPLY TO THE FEES FOR THE SPECIFIED SERVICES PRESCRIBED IN THIS ACT.

SEC. 3. 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).

SEC. 4. NONE OF THE PROVISIONS HEREOF SHALL APPLY TO UNITED STATES COMMISSIONERS IN THE TERRITORY OF ALASKA.

WITH RESPECT TO UNITED STATES COMMISSIONERS IN ALASKA, 48 U.S.C. 116 PROVIDES:

SEC. 116. ACCOUNTS OF FEES AND EXPENSES.

AN ACCURATE DETAILED ACCOUNT OF ALL FEES EARNED AND EXPENSES INCURRED BY COMMISSIONERS AND DEPUTY MARSHALS SHALL BE PREPARED IN DUPLICATE QUARTERLY, DULY VERIFIED BY THE OATH OF THE COMMISSIONER OR DEPUTY MARSHAL RENDERING THE ACCOUNT, AND FORWARDED TO THE CLERK FOR THE PROPER DIVISION OF THE DISTRICT COURT AND APPROVED BY THE JUDGE THEREOF, IF FOUND TO BE IN ACCORDANCE WITH LAW. AFTER APPROVAL BY THE JUDGE THE ORIGINAL OF EACH SUCH ACCOUNT SHALL BE FORWARDED BY THE CLERK TO THE DEPARTMENT OF JUSTICE FOR REVISION AND THE DUPLICATE FILED IN THE COURT. ALL NET FEES EARNED IN EXCESS OF THE SUM OF $3,000 PER CALENDAR YEAR OR IN EXCESS OF THAT RATE FOR A LESS PERIOD, BY ANY COMMISSIONER OR DEPUTY MARSHAL, SHALL BE ANNUALLY PAID TO THE CLERK OF THE PROPER DIVISION OF THE COURT TO BE AVAILABLE FOR INCIDENTAL EXPENSES OF THE DISTRICT COURT OF THE PROPER DIVISION, SUCH PAYMENT OF SUCH INCIDENTAL EXPENSES TO BE ACCOMPANIED BY A VERIFIED DETAILED STATEMENT OF SAID CLERK.

INSTRUCTIONS WERE ISSUED TO COMMISSIONERS FOR THE DISTRICT OF ALASKA BY THE ATTORNEY GENERAL, JANUARY 1, 1911, WHICH INSTRUCTIONS YOU STATE WERE ADOPTED BY THE ADMINISTRATIVE OFFICE, UNITED STATES COURTS. SECTION 1568 OF SUCH INSTRUCTIONS INCORPORATES THEREIN VERBATIM THE PROVISIONS OF SECTION 5 OF THE ACT OF MARCH 3, 1909, 35 STAT. 841, 48 U.S.C. 116, SUPRA.

SECTIONS 521 AND 522 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 301, 302, PROVIDE FOR ADDITIONAL COMPENSATION TO EACH OFFICER AND EMPLOYEE IN OR UNDER THE JUDICIAL BRANCH. SECTION 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 217, ALSO GRANTS ADDITIONAL COMPENSATION TO SUCH EMPLOYEES.

THE FEES OF CONCILIATION COMMISSIONERS AND THE PER DIEM COMPENSATION OF SUPERVISING CONCILIATION COMMISSIONERS HAVE BEEN HELD SUBJECT TO THE INCREASES IN THE 1945 AND 1946 PAY ACTS, 25 COMP. GEN. 158 AND 907. WITH RESPECT TO THE APPLICATION OF THE ALTERNATIVE LUMP-SUM INCREASE OF $250 IN THE 1946 PAY ACT TO THE PER DIEM RATES PAYABLE TO SUPERVISING CONCILIATION COMMISSIONERS, IT WAS STATED IN 25 COMP. GEN. 907, AT PAGE 908:

WITH RESPECT TO YOUR SECOND QUESTION, IT APPEARS THAT A REASONABLE INTERPRETATION OF THE STATUTORY PROVISION IN QUESTION REQUIRES THE CONCLUSION THAT THE ALTERNATE INCREASE OF $250 PER ANNUM PRESCRIBED THEREBY CONTEMPLATES PERSONS IN A PAY STATUS ON EACH WORKDAY IN A YEAR AND IS FOR APPLICATION ON A PRO RATA BASIS IN THE CASE OF PERSONS NOT SO EMPLOYED. COMPARE IN THIS CONNECTION THE PROVISIONS OF 604 (D) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 304, PRESCRIBING THE RULE FOR FOLLOWING IN A CASE WHERE IT IS NECESSARY TO CONVERT A BASIC MONTHLY OR ANNUAL RATE TO A BASIC WEEKLY, DAILY, OR HOURLY RATE. AS THE INCREASE OF 14 PERCENTUM ON THE MAXIMUM BASIC DAILY RATE OF $11.46 PREVIOUSLY PAYABLE TO A SUPERVISING CONCILIATION COMMISSIONER GIVES A DAILY INCREASE OF $1.60 AND THERE ARE 260 WORKING DAYS IN A YEAR IT IS OBVIOUS THAT THE INCREASE EXCEEDS THE RATE OF $250 PER ANNUM. CONSEQUENTLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

AS THE $330 INCREASE GRANTED BY THE 1948 ACT ALSO CONTEMPLATED A FULL YEAR'S SERVICE, IT FOLLOWS, IN LINE WITH THE DECISION JUST QUOTED, THAT IT SHOULD BE APPLIED TO THE PER DIEM COMPENSATION OF SUPERVISING CONCILIATION COMMISSIONERS UPON A PRORATED DAILY BASIS BY ADDING 1/260 OF $330 TO THE PREVIOUS PER DIEM RATE AS INCREASED BY THE 1945 AND 1946 PAY ACTS.

WITH RESPECT TO THE APPLICATION OF THE 1945 PAY ACT TO THE FEES OF CONCILIATION COMMISSIONERS, IT WAS STATED IN 25 COMP. GEN. 158, AT PAGE 161:

IT IS UNDERSTOOD THAT THERE ARE NO FIXED PAY PERIODS FOR CONCILIATION COMMISSIONERS WHO USUALLY ARE PAID ON VOUCHERS AS THEY ARE PRESENTED, AND THAT SUPERVISING CONCILIATION COMMISSIONERS USUALLY ARE PAID ONCE A MONTH. IN VIEW THEREOF, YOU ARE AUTHORIZED TO ADOPT SUCH PROCEDURE IN MAKING PAYMENTS OF THE INCREASED RATES TO THESE OFFICERS IN ACCORDANCE WITH THE ABOVE STATED FORMULAS AS ARE DEEMED ADMINISTRATIVELY EXPEDIENT, SUCH AS THE PROCEDURE PREVIOUSLY ADOPTED UNDER THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, TO WHICH YOU CALL ATTENTION; PROVIDED, HOWEVER, THAT THE LIMITATIONS PRESCRIBED BY THE STATUTE ARE NOT EXCEEDED DURING THE FISCAL YEAR.

HOWEVER, AS THE INCREASES IN THE 1945 AND 1946 PAY ACTS WERE UPON A PERCENTAGE BASIS, THE FORMULAS USED IN APPLYING SUCH INCREASES TO THE FEES OF CONCILIATION COMMISSIONERS ARE NOT PRACTICABLE OF APPLICATION TO THE LUMP-SUM OF $330 PROVIDED BY THE 1948 PAY ACT.

CONCILIATION COMMISSIONERS ARE PAID UPON A FEE BASIS WITHOUT REGARD TO THE TIME NECESSARY TO HEAR A PARTICULAR CASE. IN OTHER WORDS, THEY ARE NOT PAID UPON A TIME BASIS.

UNITED STATES COMMISSIONERS, BOTH IN THE UNITED STATES AND ALASKA, ARE ALSO PAID UPON A FEE BASIS, SOME SUBMITTING REGULAR REPORTS EVERY QUARTER AND OTHERS SUBMITTING ACCOUNTS IRREGULARLY BECAUSE OF SMALL SALARY EARNINGS OR BECAUSE NO FEES WHATEVER ARE INVOLVED IN A PARTICULAR QUARTER. WHILE THE FEES OF UNITED STATES COMMISSIONERS AND UNITED STATES COMMISSIONERS FOR ALASKA AND CONCILIATION COMMISSIONERS WERE ALL INCREASED PURSUANT TO SECTION 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 AND THUS COME WITHIN THE LITERAL SCOPE OF THE LANGUAGE USED IN SECTION 301 OF THE 1948 PAY ACT, I FIND NO PRACTICAL MEANS--- AND NONE HAS BEEN SUGGESTED BY YOU--- OF APPLYING THE 1948 LAW TO OFFICERS AND EMPLOYEES PAID UPON A FEE BASIS. IT IS NOT BELIEVED THAT IT WAS THE INTENTION OF THE CONGRESS TO GRANT ADDITIONAL COMPENSATION TO SUCH OFFICERS OR EMPLOYEES.

IN CONSTRUING THE APPLICATION OF A STATUTE THE COURTS HAVE HELD THAT IT IS PERMISSIBLE TO LOOK TO ITS EVIDENT SPIRIT AND PURPOSE AS WELL AS TO THE STRICT LETTER OF THE LAW; THAT THE STRICT LETTER MUST YIELD TO ITS EVIDENCED SPIRIT AND PURPOSE WHEN NECESSARY TO GIVE EFFECT TO THE INTENT OF THE CONGRESS; THAT UNJUST OR ABSURD CONSEQUENCES ARE, IF POSSIBLE, TO BE AVOIDED; THAT IT WILL ALWAYS BE PRESUMED THAT THE LEGISLATIVE BODY INTENDED EXCEPTIONS TO ITS LANGUAGE WHICH WOULD AVOID RESULTS OF THIS CHARACTER; AND THAT CONSTRUCTIONS OF STATUTES ARE TO BE MADE ACCORDING TO THE INTENTION OF THE MAKERS AND SOMETIMES ARE TO BE EXPOUNDED AGAINST THE LETTER OF THE LAW TO PRESERVE THE INTENT. SEE 19 COMP. GEN. 516, AND CASES THEREIN CITED.

IT SHOULD BE BORNE IN MIND THAT TITLE III OF THE 1948 PAY ACT WAS EVOLVED IN THE CLOSING HOURS OF THE CONGRESS, WITHOUT TIME FOR MATURE STUDY IN FORMULATING THE LANGUAGE USED. AS INDICATIVE OF THE PROBABLE INTENT OF THE CONGRESS, ATTENTION MAY BE INVITED TO TITLE I OF THAT ACT, GRANTING ADDITIONAL COMPENSATION TO POSTAL EMPLOYEES, WHICH HAD MORE MATURE CONSIDERATION BY THE CONGRESS. SECTION 101 OF TITLE I, 62 STAT. 1260, GRANTS A FLAT INCREASE TO POSTAL EMPLOYEES SIMILAR TO THE FLAT RATE GRANTED FEDERAL EMPLOYEES GENERALLY, AND SECTION 102 OF THAT ACT, 62 STAT. 1261, ROVIDES:

SEC. 102. THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO SKILLED TRADES EMPLOYEES OF THE MAIL-EQUIPMENT SHOPS, JOB CLEANERS IN FIRST AND SECOND- CLASS POST OFFICES, AND EMPLOYEES WHO ARE PAID ON A FEE OR CONTRACT BASIS. ( ITALICS SUPPLIED.)

TO ATTEMPT TO APPLY THE $330 ADDITIONAL COMPENSATION TO FEE BASIS OFFICERS OR EMPLOYEES MIGHT RESULT IN SUCH AN AMOUNT BEING PAID A NUMBER OF INDIVIDUALS WHO EARNED NO FEES WHATEVER OR WHOSE FEES IN A PARTICULAR YEAR AMOUNTED TO MUCH LESS THAN THE ADDITIONAL COMPENSATION. THAT WOULD RESULT IN AN ABSURDITY--- CERTAINLY NOT INTENDED BY THE CONGRESS. COMP. GEN. 736; 19 ID. 516. ACCORDINGLY, THERE APPEARS JUSTIFIED THE CONCLUSION THAT SECTION 301 OF THE PAY ACT OF 1948, PUBLIC LAW 900, IS NOT APPLICABLE TO ANY OFFICER OR EMPLOYEE WHOSE COMPENSATION IS FIXED UPON A FEE BASIS; HENCE, NO ADDITIONAL COMPENSATION MAY BE PAID THEREUNDER TO UNITED STATES COMMISSIONERS, UNITED STATES COMMISSIONERS IN ALASKA, OR CONCILIATION COMMISSIONERS.