B-80582, OCTOBER 22, 1948, 28 COMP. GEN. 254

B-80582: Oct 22, 1948

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REQUESTING ADVICE WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO PAYMENT OF FEES TO FIELD DEPUTY UNITED STATES MARSHALS IN VIEW OF THE FACT THAT PREVIOUS LEGISLATION SPECIFICALLY AUTHORIZING COMPENSATION IN THAT MANNER TO SUCH DEPUTIES WAS REPEALED BY THE 1948 REVISION OF THE JUDICIAL CODE AND A NEW SECTION ENACTED PROVIDING FOR THE FIXING OF SALARIES OF MARSHALS. THOSE SECTIONS OF THE CODE AS WELL AS OTHER SECTIONS RELATING TO COMPENSATION OF DEPUTY MARSHALS WERE REPEALED BY SECTION 39 OF PUBLIC LAW 773. SECTION 552 OF TITLE 28 OF THE CODE WAS REVISED TO READ AS FOLLOWS: THE ATTORNEY GENERAL SHALL FIX THE SALARIES OF UNITED STATES MARSHALS AND THEIR DEPUTIES AND CLERICAL ASSISTANTS. FAIL TO CONTAIN ANY INFORMATION INDICATING WHETHER IT WAS THE INTENTION OF SECTION 552 OF THE REVISED CODE TO ELIMINATE THE EMPLOYMENT OF FIELD DEPUTY MARSHALS UPON A FEE BASIS.

B-80582, OCTOBER 22, 1948, 28 COMP. GEN. 254

COMPENSATION - FIELD DEPUTY UNITED STATES MARSHALS - SALARY V. FEE BASIS THE PROVISIONS OF SECTION 552 OF TITLE 28 OF THE U.S.C. AS REVISED BY THE ACT OF JUNE 25, 1948, AUTHORIZING THE ATTORNEY GENERAL TO FIX THE SALARIES OF UNITED STATES MARSHALS AND THEIR DEPUTIES AND CLERICAL ASSISTANTS, WHEN CONSIDERED IN THE LIGHT OF SECTION 39 OF SAID ACT, EXPRESSLY REPEALING PREVIOUS LEGISLATION SPECIFICALLY AUTHORIZING THE PAYMENT OF COMPENSATION UPON A FEE BASIS TO SUCH FIELD DEPUTY UNITED STATES MARSHALS, MAY NOT BE REGARDED AS PERMITTING THE EMPLOYMENT OF FIELD DEPUTY MARSHALS UPON A FEE, AS DISTINGUISHED FROM A SALARY, BASIS.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 22, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 24, 1948, REQUESTING ADVICE WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO PAYMENT OF FEES TO FIELD DEPUTY UNITED STATES MARSHALS IN VIEW OF THE FACT THAT PREVIOUS LEGISLATION SPECIFICALLY AUTHORIZING COMPENSATION IN THAT MANNER TO SUCH DEPUTIES WAS REPEALED BY THE 1948 REVISION OF THE JUDICIAL CODE AND A NEW SECTION ENACTED PROVIDING FOR THE FIXING OF SALARIES OF MARSHALS, DEPUTIES, AND CLERICAL ASSISTANTS BY THE ATTORNEY GENERAL.

PRIOR TO THE REVISION OF THE JUDICIAL CODE BY THE ACT OF JUNE 25, 1948, PUBLIC LAW 773, 80TH CONGRESS, 62 STAT. 992, THE COMPENSATION AUTHORIZED FOR DEPUTY MARSHALS AND FIELD DEPUTY MARSHALS APPEARED IN 28 U.S.C. 582, 583, IN PERTINENT PART, AS FOLLOWS:

SECTION 582.

EXCEPT AS PROVIDED IN SECTION 591 OF THIS TITLE, OFFICE DEPUTIES AND CLERICAL ASSISTANTS OF THE MARSHAL SHALL RECEIVE SALARIES TO BE FIXED BY THE ATTORNEY GENERAL, FROM TIME TO TIME, AND PAID AS PROVIDED IN SECTION 588 OF THIS TITLE. * * *

SECTION 583.

EXCEPT AS PROVIDED IN SECTION 591 OF THIS TITLE, FIELD DEPUTIES TO THE MARSHAL SHALL EACH, AS HIS COMPENSATION, RECEIVE THE GROSS FEES, INCLUDING MILEAGE, AS PROVIDED BY LAW, EARNED BY HIM, NOT TO EXCEED $1,500 PER FISCAL YEAR, OR AT THE RATE FOR ANY PART OF A FISCAL YEAR; AND IN ADDITION SHALL BE ALLOWED HIS ACTUAL NECESSARY EXPENSES, NOT EXCEEDING $2 A DAY, WHILE ENDEAVORING TO ARREST, UNDER PROCESS, A PERSON CHARGED WITH OR CONVICTED OF CRIME. A FIELD DEPUTY MAY ELECT TO RECEIVE ACTUAL EXPENSES ON ANY TRIP IN LIEU OF MILEAGE. IN SPECIAL CASES, WHERE IN HIS JUDGMENT JUSTICE REQUIRES, THE ATTORNEY GENERAL MAY MAKE AN ADDITIONAL ALLOWANCE, NOT, HOWEVER, IN ANY CASE TO MAKE THE AGGREGATE ANNUAL COMPENSATION OF ANY FIELD DEPUTY IN EXCESS OF $2,500 NOR MORE THAN THE GROSS FEES EARNED BY SUCH FIELD DEPUTY.

THOSE SECTIONS OF THE CODE AS WELL AS OTHER SECTIONS RELATING TO COMPENSATION OF DEPUTY MARSHALS WERE REPEALED BY SECTION 39 OF PUBLIC LAW 773, AND, IN LIEU THEREOF, SECTION 552 OF TITLE 28 OF THE CODE WAS REVISED TO READ AS FOLLOWS:

THE ATTORNEY GENERAL SHALL FIX THE SALARIES OF UNITED STATES MARSHALS AND THEIR DEPUTIES AND CLERICAL ASSISTANTS.

THE LEGISLATIVE HISTORY AND THE REVISER'S NOTES ACCOMPANYING THE BILL, H.R. 1374, WHICH BECAME PUBLIC LAW 773, FAIL TO CONTAIN ANY INFORMATION INDICATING WHETHER IT WAS THE INTENTION OF SECTION 552 OF THE REVISED CODE TO ELIMINATE THE EMPLOYMENT OF FIELD DEPUTY MARSHALS UPON A FEE BASIS. HOWEVER, IN THE REVISER'S NOTES IT IS STATED THAT "THIS SECTION EXTENDS THE SALARY FIXING POWERS OF THE ATTORNEY GENERAL TO THE MARSHALS AND THEIR DEPUTIES. SECTION 582 OF TITLE 28 U.S.C., 1940 ED., REFERRED ONLY TO OFFICE DEPUTIES AND CLERICAL ASSISTANTS.'

IN CONSTRUING THE TERM,"SALARY," AS USED IN FEDERAL STATUTES, THIS OFFICE GENERALLY HAS DISTINGUISHED BETWEEN "SALARY" AND "FEE," IN THAT "SALARY" DENOTES A PERIODICAL PAYMENT BASED UPON A TIME ELEMENT (PER HOUR, DAY, ETC.) WHEREAS "FEE" REPRESENTS COMPENSATION FOR A PARTICULAR ACT HAVING NO RELATION TO TIME ELEMENTS. 18 COMP. GEN. 768; 22 ID. 362; AND 25 ID. 578. LIKEWISE, THE COURTS GENERALLY ARE OF THE VIEW THAT THE WORD,"SALARY," DOES NOT EMBRACE "FEES.' STATE EX REL HARRISON V. PATTERSON, 132 S.W. 1183; BLICK V. MERCANTILE TRUST AND DEPOSIT COMPANY, 77 A. 844, 46; COCHISE COUNTY V. WILCOX, 127 P. 758. FOR A DEFINITION OF "SALARY," SEE BENEDICT V. UNITED STATES, 176 U.S. 357.

IT IS NOT UNDERSTOOD, AND IT IS NOT CONTENDED, THAT THE AUTHORITY OF THE ATTORNEY GENERAL, AS IT FORMERLY EXISTED UNDER 28 U.S.C. 582, TO FIX THE SALARIES OF OFFICE DEPUTY MARSHALS INCLUDED THE AUTHORITY TO FIX SUCH SALARIES UPON A FEE BASIS. HENCE, THE EXTENSION OF THAT AUTHORITY TO FIX THE COMPENSATION OF FIELD DEPUTY MARSHALS BY THE USE OF SUBSTANTIALLY IDENTICAL LANGUAGE CANNOT BE SAID TO HAVE CONFERRED ANY DIFFERENT AUTHORITY UPON THE ATTORNEY GENERAL IN THE ABSENCE OF A CLEAR INDICATION TO THE CONTRARY.

ACCORDINGLY, I AM OF THE VIEW THAT THE WORD,"SALARY," AS USED IN SECTION 552 OF THE REVISED JUDICIAL CODE SHOULD BE GIVEN ITS ORDINARY AND GENERALLY ACCEPTED MEANING AS NOT EMBRACING "FEES," AND THAT THE EMPLOYMENT OF FIELD DEPUTY MARSHALS UPON A FEE BASIS IS NOT AUTHORIZED THEREUNDER.