B-78512, AUGUST 11, 1948, 28 COMP. GEN. 93

B-78512, AUGUST 11, 1948, 28 COMP. GEN. 93

COMPENSATION - RATES -INCREASES UNDER POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 - OFFICE OF THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT THE PROVISIONS OF SECTION 304 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, EXCLUDING EMPLOYEES "IN OR UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA" FROM THE BENEFITS OF THE SALARY INCREASE PROVISIONS OF THE ACT, DO NOT PRECLUDE PAYMENT OF THE SALARY INCREASES TO EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT, A UNIT OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA WHICH IS A PART OF THE JUDICIAL BRANCH OF THE GOVERNMENT.

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, AUGUST 11, 1948:

I HAVE YOUR LETTER OF JULY 19, 1948, AS FOLLOWS:

SECTION 304 OF THE ENROLLED ACT ( H.R. 6916) 80TH CONGRESS, SECOND SESSION, ENTITLED " AN ACT TO PROVIDE FOR PERMANENT POSTAL RATES AND TO PROVIDE PAY INCREASES FOR GOVERNMENT EMPLOYEES" PROVIDES IN PART AS FOLLOWS:

"THE PROVISIONS OF THIS ACT GRANTING AN INCREASE IN COMPENSATION TO THE EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA SHALL NOT APPLY TO ANY EMPLOYEE IN OR UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA PRIOR TO THE TIME THAT LEGISLATION PROVIDING ADEQUATE REVENUE TO MEET THE OBLIGATION IN THE DISTRICT OF COLUMBIA IS ENACTED BY THE CONGRESS AND BECOMES EFFECTIVE.'

THE OFFICE OF THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT IS IN EVERY RESPECT UNDER THE CONTROL AND JURISDICTION OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA ( SEC. 120 AND SEC. 1020, (AS AMENDED BY THE ACT OF APRIL 24, 1926, 44 STAT. 322) D.C. CODE 1901--- ACT OF JULY 14, 1892, 27 STAT. 153). THERE IS BUT ONE OFFICE, THE REGISTER OF WILLS BEING ALSO THE CLERK OF THE PROBATE COURT IN ACCORDANCE WITH THE ABOVE-MENTIONED SECTION 120 OF THE CODE.

THIS OFFICE IS NOT, NOR HAS IT EVER BEEN, A BRANCH OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, DESPITE THE FACT THAT ITS FUNDS ARE PROVIDED FOR IN THE ANNUAL APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA. IN ITS DECISION OF JANUARY 20, 1943, (22 COMP. GEN. 685) HOLDING THAT THIS OFFICE IS NOT A PART OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA BUT IS A BRANCH OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, YOUR OFFICE STATED IN PART AS FOLLOWS:

" 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 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 OFFICER 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. * * *

"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, * * *.'

SEE ALSO 22 COMP. GEN. 685 AND 25 COMP. GEN. 58 WHICH LIKEWISE HOLD THAT THIS OFFICE IS A BRANCH OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA AND NOT A PART OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

IN VIEW OF THE ABOVE DECISIONS, IT WOULD APPEAR CONCLUSIVELY TO THE UNDERSIGNED THAT THE FORTY-ONE (41) EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT ARE NOT EMPLOYEES "IN OR UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA," BUT ON THE CONTRARY ARE IN OR UNDER THE JUDICIAL BRANCH OF THE FEDERAL GOVERNMENT AND, THAT AS SUCH, THEY SHOULD BE ENTITLED TO THE INCREASE IN PAY PROVIDED OTHER FEDERAL EMPLOYEES BY THE ACT CITED ABOVE, SAID INCREASE BEING EFFECTIVE AS OF JULY 1, 1948. YOUR DECISION ON THE MATTER WOULD BE GREATLY APPRECIATED.

THE DECISION REPORTED IN 22 COMP. GEN. 685, PARTIALLY QUOTED IN YOUR LETTER, WHICH HELD THAT EMPLOYEES IN THE OFFICE OF REGISTER OF WILLS MAY BE REGARDED AS "IN OR UNDER" THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AS WELL AS THE DECISION REPORTED IN 25 COMP. GEN. 58, TO WHICH REFERENCE IS MADE IN YOUR LETTER, SUPRA, WERE BOTH PARTIALLY BASED UPON THE RELATIONSHIP EXISTING BETWEEN THE OFFICE OF REGISTER OF WILLS AND THE DISTRICT COURT OF THE UNITED STATES UNDER LAWS WHICH WERE IN EFFECT AT THE TIME THOSE DECISIONS WERE RENDERED AND WHICH LAWS STILL ARE IN EFFECT. THOSE LAWS INCLUDE CERTAIN PROVISIONS OF THE JUDICIAL CODE, AS AMENDED, AND PURSUANT TO THOSE LAWS IT WAS DETERMINED THAT THERE WAS NO ROOM FOR DOUBT THAT THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA IS A PART OF THE JUDICIAL BRANCH OF THE GOVERNMENT.

THERE RECENTLY HAS BEEN ENACTED PUBLIC LAW 773, APPROVED JUNE 25, 1948, 62 STAT. 869, WHICH IS ENTITLED " AN ACT TO REVISE, CODIFY, AND ENACT INTO LAW TITLE 28 OF THE U.S.C. ENTITLED " JUDICIAL CODE AND JUDICIARY.'" THAT LAW, WHICH BECOMES EFFECTIVE SEPTEMBER 1, 1948, DOES NOT APPEAR TO CHANGE THE STATUS OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA IN ANY MANNER WHICH WOULD WARRANT ARRIVING AT A CONCLUSION DIFFERENT FROM THAT REACHED IN THOSE DECISIONS, WHICH HELD THAT THE OFFICE OF REGISTER OF WILLS WAS "IN OR UNDER" THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF CERTAIN PAY ACTS. THERE HAVE BEEN NO ENACTMENTS SPECIFICALLY AFFECTING THE STATUS OF THE OFFICE OF REGISTER OF WILLS SINCE THOSE DECISIONS.

ACCORDINGLY, I AM REQUIRED TO CONCLUDE THAT UNDER LAWS NOW IN EFFECT EMPLOYEES IN THE OFFICE OF REGISTER OF WILLS WHO ARE "IN OR UNDER" THE JUDICIARY ARE NOT "IN OR UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA" AND, THEREFORE, ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 304 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, PUBLIC LAW 900, APPROVED JULY 3, 1948, 62 STAT. 1268, WHICH, SO FAR AS EMPLOYEES IN OR UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ARE CONCERNED POSTPONES THE DATE OF GRANTING THE INCREASE IN COMPENSATION PROVIDED BY THAT ACT UNTIL SUCH TIME AS LEGISLATION PROVIDING ADEQUATE REVENUES TO MEET THE OBLIGATION IN THE DISTRICT OF COLUMBIA IS ENACTED BY THE CONGRESS AND BECOMES EFFECTIVE.