A-29266, NOVEMBER 6, 1929, 9 COMP. GEN. 190

A-29266, NOVEMBER 6, 1929, 9 COMP. GEN. 190

COMPENSATION - RECESS APPOINTMENTS - FEDERAL FARM BOARD UPON CONFIRMATION BY THE SENATE OF THE MEMBERS OF THE FEDERAL FARM BOARD HOLDING RECESS APPOINTMENTS, THE VACANCIES HAVING OCCURRED DURING A SESSION OF THE SENATE, THE MEMBERS BECOME ENTITLED TO COMPENSATION FOR ALL SERVICES RENDERED UNDER THE RECESS APPOINTMENTS FROM THE DATE SUCH APPOINTMENTS WERE ACCEPTED BY THE TAKING OF THE OATH OF OFFICE.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL FARM BOARD, NOVEMBER 6, 1929:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR DIRECTION, THE FOLLOWING LETTER, DATED OCTOBER 22, 1929, FROM THE SECRETARY OF YOUR BOARD:

BY COMMISSIONS ISSUED BY THE PRESIDENT OF THE UNITED STATES THE FOLLOWING MEMBERS OF THE FEDERAL FARM BOARD WERE APPOINTED, EFFECTIVE JUNE 15, 1929, TO SERVE FOR THE PERIOD INDICATED IN EACH CASE:

ALEXANDER LEGGE, FOR A PERIOD OF ONE YEAR.

CHARLES C. TEAGUE, FOR A PERIOD OF ONE YEAR.

WILLIAM F. SCHILLING, FOR A PERIOD OF TWO YEARS.

SAMUEL R. MCKELVIE, FOR A PERIOD OF TWO YEARS.

C. B. DENMAN, FOR A PERIOD OF THREE YEARS.

CHARLES S. WILSON, FOR A PERIOD OF FOUR YEARS.

JAMES C. STONE, FOR A PERIOD OF FIVE YEARS.

CARL WILLIAMS, FOR A PERIOD OF SIX YEARS.

EACH OF THE APPOINTEES EXECUTED AN OATH OF OFFICE ON JULY 15, 1929, EXCEPT IN THE CASE OF MR. MCKELVIE, WHO EXECUTED HIS OATH ON AUGUST 1, 1929. THE VARIOUS MEMBERS OF THE BOARD HAVE RECEIVED PAYMENT OF THEIR SALARIES AT THE RATES AUTHORIZED BY LAW, BEGINNING WITH THE DATE ON WHICH THEY EXECUTED THE OATH OF OFFICE. THE QUESTION HAS BEEN RAISED, HOWEVER, AS TO WHETHER PAYMENT OF THEIR SALARIES SHOULD NOT HAVE BEEN MADE BEGINNING WITH JUNE 15, 1929, THE EFFECTIVE DATE SPECIFIED IN THEIR COMMISSIONS.

IN THIS CONNECTION THE QUESTION ARISES AS TO WHETHER THE TERM OF OFFICE OF EACH MEMBER OF THE BOARD EXTENDS FOR A PERIOD OF ONE YEAR, TWO YEARS, THREE YEARS, AND SO FORTH, FROM JUNE 15, 1929, OR FROM THE DATE ON WHICH THE OATH OF OFFICE WAS EXECUTED, AND I AM HEREBY SUBMITTING THAT QUESTION TO YOU FOR DECISION. IF, AS I BELIEVE, THE VARIOUS TERMS OF OFFICE EXTEND FROM JUNE 15, 1929, FOR DEFINITE PERIODS, ONE YEAR, TWO YEARS, THREE YEARS, AND SO FORTH, SHOULD THE COMPENSATION TO BE PAID THE MEMBERS CORRESPOND TO SUCH A DEFINITE TERM? IN OTHER WORDS, ARE THEY ENTITLED TO RECEIVE SALARIES AT THE RATES SET FORTH IN THE AGRICULTURAL MARKETING ACT FROM JUNE 15, 1929, UNTIL JUNE 14 OF THE YEAR IN WHICH THEIR COMMISSIONS EXPIRE, UNLESS THEIR SERVICES ARE TERMINATED BEFORE THE EXPIRATION OF THEIR TERMS. I WOULD APPRECIATE YOUR DECISION AS TO WHETHER PAYMENT FOR THE PERIODS INDICATED IS LEGAL AND PROPER.

FOR YOUR INFORMATION I AM SUBMITTING A COPY OF ONE OF THE COMMISSIONS ISSUED TO MEMBERS OF THE BOARD, ALL OF WHICH WERE IN THE SAME FORM.

I MIGHT ALSO ADD THAT WHILE THE ACT CREATING THE FEDERAL FARM BOARD, PUBLIC, NO. 10, 71ST CONGRESS, H.R. 1, WAS APPROVED JUNE 15, 1929, THE ACT PROVIDING THE APPROPRIATION FOR THE ADMINISTRATIVE EXPENSES OF THE BOARD WAS NOT APPROVED UNTIL JUNE 18, 1929, WHICH MAY ENTER INTO YOUR CONSIDERATION OF THE QUESTION.

BY DECISION OF AUGUST 8, 1929, 9 COMP. GEN. 60, YOU WERE ADVISED THAT BECAUSE OF THE PROVISIONS OF SECTION 1761, REVISED STATUTES, MEMBERS OF THE FEDERAL FARM BOARD WERE NOT ENTITLED TO RECEIVE COMPENSATION UNTIL THEIR APPOINTMENTS HAD BEEN CONFIRMED BY THE UNITED STATES SENATE. THE APPOINTMENTS OF ALL THE MEMBERS OF THE BOARD HAVE SINCE BEEN CONFIRMED BY THE SENATE, OCTOBER 16, 1929. HENCE THEY BECOME ENTITLED TO COMPENSATION FOR ALL SERVICES RENDERED UNDER THE RECESS APPOINTMENTS. 21 COMP. DEC. 722; 26 ID. 922. IT IS WELL SETTLED, HOWEVER, THAT PRESIDENTIAL APPOINTMENTS DO NOT VEST IN THE APPOINTEE THE RIGHT TO COMPENSATION PRIOR TO THE DATE THEY ARE ACTUALLY ACCEPTED BY THE APPOINTEES. APPOINTMENTS MAY BE ACCEPTED, AFTER THE ACTION OF THE APPOINTING POWER IS COMPLETE, EITHER FORMALLY, BY TAKING THE OATH OF OFFICE, OR BY ENTERING UPON DUTY SUBSEQUENT TO THE DATE OF APPOINTMENT. 4 COMP. GEN. 845; 7 ID. 96.

IT APPEARS FROM YOUR SUBMISSION THAT ALL OF THE RECESS APPOINTMENTS WERE ISSUED JULY 15, 1929, AND THAT ALL OF THE MEMBERS TOOK THE OATH OF OFFICE ON THAT DATE EXCEPT ONE MEMBER, WHO TOOK THE OATH AUGUST 1, 1929, AND IT IS UNDERSTOOD THAT HE DID NOT ENTER FOR DUTY OR FORMALLY ACCEPT THE APPOINTMENT PRIOR TO AUGUST 1, 1929. IT MUST BE HELD, THEREFORE, THAT NO COMPENSATION IS DUE THE MEMBERS FOR ANY PERIOD PRIOR TO THE DATE OF THEIR RESPECTIVE OATHS, NOTWITHSTANDING THAT THE APPOINTMENTS WERE FOR TERMS OF A YEAR OR A FIXED NUMBER OF YEARS "FROM JUNE 15, 1929.' THE TIME DURING WHICH AN APPOINTEE IS ENTITLED TO COMPENSATION IS NOT NECESSARILY CONCURRENT WITH THE TERM PRESCRIBED IN HIS APPOINTMENT OR FIXED BY STATUTE. A-27118, MAY 8, 1929. OF COURSE, IF THE MEMBER WHO TOOK THE OATH AUGUST 1, 1929, ACTUALLY ENTERED UPON DUTY AT ANY TIME BETWEEN JULY 15 AND AUGUST 1, HE MAY BE PAID COMPENSATION FROM THE DATE HE ACTUALLY ENTERED UPON DUTY.

WITH RESPECT TO THE BEGINNING AND ENDING OF THE TERMS OF THE RESPECTIVE MEMBERS, ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 2 OF THE AGRICULTURAL MARKETING ACT OF JUNE 15, 1929, 46 STAT. 11, WHICH PROVIDES:

* * * THE TERMS OF OFFICE OF THE APPOINTED MEMBERS OF THE BOARD FIRST TAKING OFFICE AFTER THE DATE OF THE APPROVAL OF THIS ACT SHALL EXPIRE, AS DESIGNATED BY THE PRESIDENT AT THE TIME OF NOMINATION, TWO AT THE END OF THE FIRST YEAR, TWO AT THE END OF THE SECOND YEAR, ONE AT THE END OF THE THIRD YEAR, ONE AT THE END OF THE FOURTH YEAR, ONE AT THE END OF THE FIFTH YEAR, AND ONE AT THE END OF THE SIXTH YEAR AFTER SUCH DATE. * * *

THE STATUTE THUS SPECIFICALLY FIXES THE EXPIRATION OF THE TERMS OF THE RESPECTIVE MEMBERS AT THE END OF THE DESIGNATED NUMBER OF YEARS AFTER THE DATE OF THE APPROVAL OF THE ACT; THAT IS, FROM AND AFTER JUNE 15, 1929. HENCE THE TERM OF EACH MEMBER UNDER HIS REGULAR APPOINTMENT, REGARDLESS OF THE DATE OF HIS APPOINTMENT OR THE DATE FROM WHICH HE BECAME ENTITLED TO COMPENSATION, WILL EXPIRE AT THE END OF THE FIRST, SECOND, THIRD, FOURTH, FIFTH, OR SIXTH YEAR, AS THE CASE MAY BE, FROM JUNE 15, 1929.

IT IS TO BE NOTED THAT THE RECESS APPOINTMENTS, BY THEIR EXPRESS TERMS AND AS REQUIRED BY LAW, WOULD IN ANY EVENT TERMINATE AT "THE END OF THE NEXT SESSION OF THE SENATE.' THEREFORE IT IS PRESUMED THAT NEW COMMISSIONS COVERING THE PRESCRIBED TERMS HAVE BEEN OR WILL BE ISSUED PURSUANT TO THE CONFIRMATION OF OCTOBER 16, 1929.