B-9769, MAY 24, 1940, 19 COMP. GEN. 951

B-9769: May 24, 1940

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IS CLEARLY IN THE DISCHARGE OF A PUBLIC DUTY AND. ANY EXPENSE INCIDENT THERETO IS AN OFFICIAL EXPENSE AS DISTINGUISHED FROM A PERSONAL EXPENSE INCIDENT TO THE MAKING OF OATHS TO EXPENSE ACCOUNTS OF GOVERNMENT EMPLOYEES. 17 COMP. 1940: I HAVE YOUR LETTER OF APRIL 20. THIS STATUTE APPEARS TO SUPPLY THE EXPRESS AUTHORITY WHICH WAS FOUND WANTING IN 4 C.G. 925 AND 9 C.G. 139. WILL YOU PLEASE ADVISE ME WHETHER THE FUNDS OF THE ALASKA ROAD COMMISSION. ARE AVAILABLE TO PAY SUCH FEES. AN OATH OF DISINTERESTEDNESS IS NOT A PART OF THE FORMALITY OF RENDERING A PERSONAL ACCOUNT. IS REQUIRED BY LAW IN THE DISCHARGE OF A PUBLIC DUTY. THE DECISIONS OF THE SUPREME COURT AND OF THE FORMER COMPTROLLER OF THE TREASURY REFERRED TO IN THE LAST PARAGRAPH OF YOUR SUBMISSION ALL RELATE TO OATHS TO EXPENSE ACCOUNTS AND ARE NOT NECESSARILY FOR APPLICATION IN A MATTER SUCH AS YOU SUBMIT FOR CONSIDERATION.

B-9769, MAY 24, 1940, 19 COMP. GEN. 951

OATHS OF DISINTERESTEDNESS - FEES FOR ADMINISTERING THE MAKING OF "OATHS OF DISINTERESTEDNESS" AS REQUIRED BY SECTION 3745, REVISED STATUTES, IS CLEARLY IN THE DISCHARGE OF A PUBLIC DUTY AND, THEREFORE, ANY EXPENSE INCIDENT THERETO IS AN OFFICIAL EXPENSE AS DISTINGUISHED FROM A PERSONAL EXPENSE INCIDENT TO THE MAKING OF OATHS TO EXPENSE ACCOUNTS OF GOVERNMENT EMPLOYEES. 17 COMP. DEC. 469, DISTINGUISHED. POSTMASTERS IN ALASKA MAY NOT BE PAID FEES FROM THE ALASKA ROAD COMMISSION APPROPRIATION FOR ADMINISTERING, UNDER THE ACT OF AUGUST 5, 1939, 53 STAT. 1219, THE "OATHS OF DISINTERESTEDNESS" REQUIRED BY SECTION 3745, REVISED STATUTES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MAY 24, 1940:

I HAVE YOUR LETTER OF APRIL 20, 1940, AS FOLLOWS:

THE ACT OF AUGUST 5, 1939, PUBLIC, NO. 294, 76TH CONGRESS, FIRST SESSION, EMPOWERS POSTMASTERS IN ALASKA TO ADMINISTER OATHS AND "EXCEPT AS OTHERWISE PROVIDED OR REQUIRED BY AN ACT OF CONGRESS" TO CHARGE AND RECEIVE FEES FOR SUCH SERVICE. THIS STATUTE APPEARS TO SUPPLY THE EXPRESS AUTHORITY WHICH WAS FOUND WANTING IN 4 C.G. 925 AND 9 C.G. 139, AND THE SOLICITOR OF THE POST OFFICE DEPARTMENT HAS RULED THAT POSTMASTERS IN ALASKA MAY CHARGE FEES FOR ADMINISTERING TO EMPLOYEES OF THE ALASKA ROAD COMMISSION OATHS OF DISINTERESTEDNESS AS REQUIRED BY 41 U.S.C., SEC. 17.

WILL YOU PLEASE ADVISE ME WHETHER THE FUNDS OF THE ALASKA ROAD COMMISSION, APPROPRIATED FOR THE FISCAL YEAR 1940 (53 STAT. 734), ARE AVAILABLE TO PAY SUCH FEES. IT SEEMS TO ME THAT SUCH FEES CONSTITUTE ADMINISTRATIVE EXPENSES PAYABLE UNDER THE RULE EXPRESSED IN 12 C.D. 285 AND IN THE CASE OF H. J. PACK, CITED IN 12 C.D. 291. I AM AWARE THAT IN 17 C.D. 469, THE COMPTROLLER OF THE TREASURY FELT CONSTRAINED TO REACH A CONTRARY RESULT WITH RESPECT TO THE VERIFICATION OF EXPENSE ACCOUNTS BECAUSE OF THE DECISION IN JONES V. UNITED STATES, 193 U.S. 528. HOWEVER, AN OATH OF DISINTERESTEDNESS IS NOT A PART OF THE FORMALITY OF RENDERING A PERSONAL ACCOUNT, BUT IS REQUIRED BY LAW IN THE DISCHARGE OF A PUBLIC DUTY.

THE DECISIONS OF THE SUPREME COURT AND OF THE FORMER COMPTROLLER OF THE TREASURY REFERRED TO IN THE LAST PARAGRAPH OF YOUR SUBMISSION ALL RELATE TO OATHS TO EXPENSE ACCOUNTS AND ARE NOT NECESSARILY FOR APPLICATION IN A MATTER SUCH AS YOU SUBMIT FOR CONSIDERATION, INVOLVING "OATHS OF DISINTERESTEDNESS" AS REQUIRED BY SECTION 3745, REVISED STATUTES, IT APPEARING THAT THE MAKING OF SUCH OATHS OF DISINTERESTEDNESS IS CLEARLY IN THE DISCHARGE OF A PUBLIC DUTY AND, THEREFORE, ANY EXPENSE INCIDENT THERETO MUST BE CONSIDERED AN OFFICIAL EXPENSE AS DISTINGUISHED FROM A PERSONAL EXPENSE INCIDENT TO A PERSONAL ACCOUNT AS INVOLVED IN THE CASE OF JONES V. UNITED STATES, 193 U.S. 528, AND IN 17 COMP. DEC. 469. HOWEVER, ASSUMING THAT EMPLOYEES OF THE ALASKA ROAD COMMISSION MAY BE REIMBURSED FOR EXPENSES PROPERLY INCURRED BY THEM FOR OATHS OF DISINTERESTEDNESS IN PROPER CASES WHERE SUCH EXPENSES ARE INCURRED IN THE DISCHARGE OF A PUBLIC DUTY, IT DOES NOT NECESSARILY FOLLOW THAT THE ALASKA ROAD COMMISSION APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF FEES TO POSTMASTERS FOR SUCH OATHS UNDER THE ACT OF AUGUST 5, 1939, 53 STAT. 1219, WHICH PROVIDES:

THAT EACH POSTMASTER WITHIN THE TERRITORY OF ALASKA IS HEREBY AUTHORIZED AND DIRECTED TO ADMINISTER OATHS AND AFFIRMATIONS AND TO TAKE ACKNOWLEDGMENTS, AND TO MAKE AND EXECUTE CERTIFICATES THEREOF, AND TO PERFORM ALL OTHER FUNCTIONS OF A NOTARY PUBLIC WITHIN SAID TERRITORY, WHENEVER AN OATH, AFFIRMATION, OR ACKNOWLEDGMENT OR A CERTIFICATE THEREOF IS AUTHORIZED, PERMITTED, OR REQUIRED BY ANY ACT OR ACTS OF CONGRESS.

SEC. 2. EACH CERTIFICATE OF OATH, AFFIRMATION, OR ACKNOWLEDGMENT (SIC) EXECUTED BY A POSTMASTER WITHIN THE TERRITORY OF ALASKA UNDER THE AUTHORITY OF THIS ACT SHALL BE SIGNED BY THE POSTMASTER, WITH A DESIGNATION OF HIS TITLE AS SUCH POSTMASTER, SHALL HAVE AFFIXED THERETO THE CANCELLATION STAMP OF THE POST OFFICE, AND SHALL STATE THE NAME OF THE POST OFFICE AND THE DATE ON WHICH SUCH OATH OR AFFIRMATION IS ADMINISTERED OR SUCH ACKNOWLEDGMENT IS TAKEN.

SEC. 3. EXCEPT AS OTHERWISE PROVIDED OR REQUIRED BY AN ACT OF CONGRESS, FOR ADMINISTERING AN OATH OR AFFIRMATION, OR TAKING AN ACKNOWLEDGMENT, OR PERFORMING ANY OTHER FUNCTION OF A NOTARY PUBLIC WITHIN THE TERRITORY OF ALASKA AS HEREIN PROVIDED, THE POSTMASTER IS AUTHORIZED TO CHARGE AND RECEIVE THE FEES PRESCRIBED BY LAW FOR A NOTARY PUBLIC FOR SIMILAR SERVICES IN SAID TERRITORY.

UNDER SECTION 1 OF THE ACT THE POSTMASTERS IN ALASKA ARE REQUIRED TO ADMINISTER OATHS OF DISINTERESTEDNESS WHEN REQUESTED TO DO SO, SUCH OATHS BEING REQUIRED BY AN ACT OF CONGRESS--- SECTION 3745, REVISED STATUTES. SECTION 3 OF THE ACT PROVIDES THAT FOR ADMINISTERING OATHS THE POSTMASTERS IN THE TERRITORY OF ALASKA ARE AUTHORIZED TO CHARGE AND RECEIVE FEES PRESCRIBED BY LAW FOR A NOTARY PUBLIC FOR SIMILAR SERVICES IN SAID TERRITORY "EXCEPT AS OTHERWISE PROVIDED OR REQUIRED BY AN ACT OF CONGRESS.' MANIFESTLY, IN VIEW OF THIS CLAUSE, THERE COULD BE NO CHARGING OR RECEIVING OF FEES BY THE POSTMASTERS IN ALASKA FOR ADMINISTERING OATHS AS REQUIRED BY THE ACT OF AUGUST 29, 1890, 26 STAT. 571 (RELATING TO OATHS OF EMPLOYEES UPON THEIR APPOINTMENT OR PROMOTION) OR BY SECTION 8 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487 (RELATING TO OATHS ON EXPENSE ACCOUNTS), IT BEING SPECIFICALLY PROVIDED IN SAID ACTS THAT SUCH OATHS, WHEN ADMINISTERED BY OFFICIALS OR EMPLOYEES IN THE FEDERAL SERVICE, SHALL BE ADMINISTERED FREE OF CHARGE. HOWEVER, THERE DOES NOT APPEAR TO BE ANY ACT OF CONGRESS SPECIFICALLY PROVIDING OR REQUIRING THAT POSTMASTERS IN ALASKA SHALL ADMINISTER THE OATHS OF DISINTERESTEDNESS REQUIRED BY SECTION 3745, REVISED STATUTES, WITHOUT BEING COMPENSATED THEREFOR. CONSEQUENTLY, IN SUCH CASES, THE PROVISION ,EXCEPT AS PROVIDED OR REQUIRED BY AN ACT OF CONGRESS" IN SECTION 3 OF THE SUBJECT ACT WOULD NOT APPEAR, OF ITSELF, TO PRECLUDE POSTMASTER IN THE TERRITORY OF ALASKA FROM CHARGING AND RECEIVING ,THE FEES PRESCRIBED BY LAW FOR A NOTARY PUBLIC FOR SIMILAR SERVICES IN SAID TERRITORY.'

ON THE OTHER HAND, WHILE THERE APPEARS NO SPECIFIC PROVISION OF LAW REQUIRING POSTMASTERS TO ADMINISTER OATHS OF DISINTERESTEDNESS WITHOUT BEING COMPENSATED THEREFOR--- THOUGH THERE IS DOUBT THAT THE ACT CONTEMPLATES OR INTENDS THAT POSTMASTERS SHOULD CHARGE FEES FOR ADMINISTERING SUCH OATHS--- ATTENTION IS INVITED TO SECTION 1765, REVISED STATUTES, WHICH PROVIDES AS FOLLOWS:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IN THE DECISION OF JUNE 23, 1916, 22 COMP. DEC. 693, THE FORMER COMPTROLLER OF THE TREASURY HELD THAT SECTION 1765, REVISED STATUTES, DID NOT PROHIBIT THE PAYMENT OF CERTAIN NOTARY FEES TO A GOVERNMENT EMPLOYEE, UNDER THE CIRCUMSTANCES THERE CONSIDERED, BECAUSE THE POSITION OF NOTARY PUBLIC WAS SEPARATE AND DISTINCT FROM THE EMPLOYEE'S POSITION AS CLERK, THE TWO POSITIONS WERE NOT INCOMPATIBLE, AND THE POSITION OF NOTARY PUBLIC HAD ITS OWN SEPARATE DUTIES WHICH HAD NOT BEEN ADDED TO OR CONNECTED WITH THE DUTIES OF THE OTHER POSITION. THAT DECISION WAS BASED ON THE HOLDINGS OF THE COURTS THAT THE STATUTE DOES NOT APPLY TO A CASE WHERE THE SAME PERSON HOLDS TWO SEPARATE OFFICES, PLACES, OR POSITIONS, EACH WITH ITS OWN DUTIES AND ITS OWN COMPENSATION FIXED BY LAW OR REGULATIONS, UNITED STATES V. SAUNDERS, 120 U.S. 126; WOODWELL V. UNITED STATES, 214 U.S. 82. NOTARY PUBLIC IS A PUBLIC OFFICER WHO, IN DISCHARGING THE DUTIES OF A NOTARY PUBLIC IS DISCHARGING THE DUTIES OF AN OFFICE, HAROLD J. PACK V. THE UNITED STATES, 41 CT.1CLS. 414.

THE PRINCIPLES APPLIED IN THE SAID DECISION OF JUNE 23, 1916, ARE NOT APPLICABLE TO THE PRESENT MATTER, HOWEVER. THERE, THE EMPLOYEE INVOLVED HELD TWO DISTINCT OFFICES UNDER TWO SEPARATE APPOINTMENTS--- THE OFFICE OF A NOTARY PUBLIC AND THE OFFICE OF A GOVERNMENT CLERK. HERE, THE POSTMASTERS DO NOT HOLD TWO DISTINCT OFFICES, THE ONLY OFFICE INVOLVED BEING THAT OF POSTMASTER. THE ACT OF AUGUST 5, 1939, DID NOT PURPORT TO APPOINT THE POSTMASTERS TO THE "OFFICE" OF NOTARY PUBLIC. IT MERELY IMPOSED ADDITIONAL DUTIES UPON THEM AS POSTMASTERS AND THE OATHS, ACKNOWLEDGMENT, ETC., ARE REQUIRED TO BE ADMINISTERED BY THEM AS POSTMASTERS--- NOT AS NOTARIES PUBLIC.

IN A LATER DECISION, 25 COMP. DEC. 987, THE FORMER COMPTROLLER OF THE TREASURY HELD THAT SECTION 1765, REVISED STATUTES, PROHIBITED THE PAYMENT OF NOTARY FEES TO A GOVERNMENT EMPLOYEE, UNDER THE CIRCUMSTANCES THERE INVOLVED, BECAUSE IN THAT CASE IT APPEARED THAT THE NOTARIAL ACTS PERFORMED BY THE EMPLOYEE WERE REQUIRED AS A PART OF THE OFFICIAL DUTIES OF HIS REGULAR POSITION FOR WHICH HE WAS PAID COMPENSATION FIXED BY LAW. THE PRINCIPLE APPLIED THERE FINDS SUPPORT IN THE SAUNDERS AND WOODWELL CASES, SUPRA, WHEREIN IT WAS STATED THAT THE PURPOSE OF SECTIONS 1763, 1764, AND 1765, REVISED STATUTES, WAS---

* * * TO PREVENT A PERSON HOLDING AN OFFICE OR APPOINTMENT, FOR WHICH THE LAW PROVIDES A DEFINITE COMPENSATION BY WAY OF SALARY OR OTHERWISE, WHICH IS INTENDED TO COVER ALL THE SERVICES WHICH, AS SUCH OFFICER, HE MAY BE CALLED UPON TO RENDER, FROM RECEIVING EXTRA COMPENSATION, ADDITIONAL ALLOWANCES, OR PAY FOR OTHER SERVICES WHICH MAY BE REQUIRED OF HIM EITHER BY ACT OF CONGRESS OR BY ORDER OF THE HEAD OF HIS DEPARTMENT, OR IN ANY OTHER MODE, ADDED TO OR CONNECTED WITH THE REGULAR DUTIES OF THE PLACE WHICH HE HOLDS; * * * SUCH BEING THE PURPOSE OF THE STATUTES IT IS CLEAR THAT SECTION 1765, REVISED STATUTES, PROHIBITS THE PAYMENT OF ADDITIONAL COMPENSATION TO THE POSTMASTERS IN ALASKA FOR ADMINISTERING OATHS OF DISINTERESTEDNESS,"UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE OR COMPENSATION," BECAUSE THE DUTY OF ADMINISTERING SUCH OATHS IS IMPOSED UPON THE POSTMASTERS BY AN ACT OF CONGRESS, SUCH DUTIES BEING "ADDED TO OR CONNECTED WITH THE REGULAR IES," OF POSTMASTERS.

THE ADMINISTERING OF OATHS OF DISINTERESTEDNESS BY POSTMASTERS IN ALASKA "IS AUTHORIZED BY AW"--- THE ACT OF AUGUST 5, 1939--- WITHIN THE MEANING OF SECTION 1765, REVISED STATUTES, BUT THAT IS NOT ENOUGH TO AUTHORIZE PAYMENT OF FEES THEREFOR TO SUCH POSTMASTERS. THERE MUST, ALSO, BE AN APPROPRIATION THEREFOR WHICH "EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.' WHILE THE SAID ACT AUTHORIZES POSTMASTERS IN ALASKA "TO CHARGE AND RECEIVE" FEES THE ACT CERTAINLY DOES NOT MAKE AN APPROPRIATION FOR THE PAYMENT OF SUCH FEES. SEE WOODWELL V. THE UNITED STATES, 41 CT.1CLS. 357, AFFIRMED 214 U.S. 82, WHEREIN THE COURT STATED:

IN THE PRESENT CASE, CONCEDING THAT THE RENDITION OF THE SERVICES WAS AUTHORIZED BY LAW, CERTAINLY THERE WAS NO "APPROPRIATION THEREFOR EXPLICITLY STATING THAT IT WAS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION" * * *

AS HEREINBEFORE STATED, THE MAKING OF AN OATH OF DISINTERESTEDNESS IS IN THE DISCHARGE OF A PUBLIC DUTY AND CONSEQUENTLY THE EXPENSE INCIDENT THERETO MUST BE CONSIDERED AN OFFICIAL EXPENSE NECESSARILY INCURRED IN THE EXECUTION OF THE POWERS AND DUTIES CONFERRED UPON THE ALASKA ROAD COMMISSION AND, CONSEQUENTLY, PROPERLY CHARGEABLE, GENERALLY, TO FUNDS OF THE SAID COMMISSION. BUT THE MERE FACT THAT THE APPROPRIATION IS AVAILABLE, GENERALLY, FOR THE PAYMENT OF SUCH AN EXPENSE DOES NOT, OF ITSELF, MAKE THOSE FUNDS AVAILABLE TO PAY SUCH EXPENSES WHEN TO DO SO WOULD RESULT IN THE PAYMENT OF "ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION" TO POSTMASTERS OR AN "OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS.' TO BE AVAILABLE FOR SUCH A PAYMENT IT IS NECESSARY, BY REASON OF SECTION 1765, REVISED STATUTES, THAT THE APPROPRIATION "EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.' THE APPROPRIATION FOR THE ALASKA ROAD COMMISSION FOR THE FISCAL YEAR 1940, 53 STAT. 734, DOES NOT EXPLICITLY SO STATE. IT MAY BE STATED, INCIDENTALLY, THAT SUCH APPROPRIATION WAS MADE SEVERAL MONTHS BEFORE ENACTMENT OF THE ACT OF AUGUST 5, 1939, WHICH AUTHORIZED AND DIRECTED POSTMASTERS TO ADMINISTER OATHS OF THE KIND UNDER CONSIDERATION.

ASSUMING FOR PRESENT PURPOSES, WITHOUT CONCEDING, THAT THE ACT OF AUGUST 5, 1939, CONTEMPLATES AND INTENDS THAT POSTMASTERS IN ALASKA SHOULD CHARGE AND RECEIVE FROM THE GOVERNMENT, DIRECTLY OR INDIRECTLY, FEES FOR ADMINISTERING OATHS OF DISINTERESTEDNESS, THE SAID ACT DID NOT MAKE AN APPROPRIATION THEREFOR AND THE APPROPRIATION FOR THE ALASKA ROAD COMMISSION DOES NOT EXPLICITLY STATE THAT IT IS AVAILABLE FOR THE PAYMENT OF SUCH FEES TO POSTMASTERS IN ALASKA. CONSEQUENTLY, IN VIEW OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES, IT MUST BE HELD THAT SUCH APPROPRIATION IS NOT AVAILABLE FOR THE PAYMENT OF FEES TO POSTMASTERS IN ALASKA FOR ADMINISTERING OATHS OF DISINTERESTEDNESS REQUIRED BY SECTION 3745, REVISED STATUTES.