NOVEMBER 20, 1923, 3 COMP. GEN. 319

NOVEMBER 20, 1923, 3 COMP. GEN. 319

VOLUNTARY SERVICES - POSTMASTER ACTING AS MAIL MESSENGER THE ACT OF JULY 28, 1916, 39 STAT., 418, AUTHORIZED THE POSTMASTER GENERAL TO ENTER INTO CONTRACTS WITH POSTMASTERS OF THE THIRD AND FOURTH CLASS POST OFFICES FOR THE PERFORMANCE OF MAIL MESSENGER SERVICE; SERVICE AS MAIL MESSENGER RENDERED BY A POSTMASTER WITHOUT PRIOR CONTRACT OR DESIGNATION BY THE POSTMASTER GENERAL IS VOLUNTARY AND DOES NOT ENTITLE THE POSTMASTER TO ADDITIONAL COMPENSATION FOR SUCH SERVICE. THE AUTHORITY CONTAINED IN THE ACT OF JULY 28, 1916, 39 STAT., 418, FOR THE POSTMASTER GENERAL TO CONTRACT FOR MAIL MESSENGER SERVICE WITH THE POSTMASTERS IN THE THIRD AND FOURTH CLASS OFFICES, BEING OF DOUBTFUL PERMANENCY, BUT HAVING BEEN PRESUMED TO BE PERMANENT AND SO ACTED UPON BY THE ADMINISTRATIVE OFFICERS, WILL BE RECOGNIZED FOR THE FISCAL YEAR 1924 BUT NOT THEREAFTER UNLESS AFFIRMED BY NEW AND SPECIFIC LEGISLATION.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 20, 1923:

THERE HAS BEEN RECEIVED ON BEHALF OF M. J. MERRILL REQUEST FOR REVIEW OF SETTLEMENT NO. 145, DATED NOVEMBER 6, 1923, OF HIS ACCOUNTS, QUARTER ENDED JUNE 30, 1923, AS POSTMASTER, MAINSTREAM, ME., A FOURTH CLASS POST OFFICE, WHEREIN WAS DISALLOWED $30 REPRESENTING AMOUNT OF VOUCHER SUBMITTED BY THE POSTMASTER CHARGING THE GOVERNMENT FOR HIS SERVICES AS A MAIL MESSENGER DURING THE MONTH OF MAY, 1923.

IT APPEARS THAT OSMAN B. CLARK WAS MAIL MESSENGER OF RECORD UNTIL MAY 31, 1923, AT $300 PER ANNUM, AND WAS SUCCEEDED BY RALPH E. LIBBY FROM JUNE 1, 1923, AT $360 PER ANNUM.

IT IS ALLEGED ON BEHALF OF MR. MERRILL THAT CLARK HAD NOTIFIED THE GOVERNMENT OF HIS INTENTION TO CEASE CARRYING THE MAIL FROM THE POST OFFICE TO THE DEPOT AND RETURN ON MAY 1, 1923. HOWEVER, WHEN THAT TIME ARRIVED NO ONE ELSE HAD BEEN SECURED AND THE POSTMASTER VOLUNTARILY PERFORMED THE SERVICES OF MAIL MESSENGER, CARRYING OUT GOING MAIL FROM THE POST OFFICE TO THE DEPOT, AND THE INCOMING MAIL FROM THE DEPOT TO THE POST OFFICE, IN ORDER TO PREVENT THE MAIL FROM PILING UP AT EITHER POINT.

SECTION 3850, REVISED STATUTES, PROVIDES AS FOLLOWS:

NO POSTMASTER, ASSISTANT POSTMASTER, OR CLERK EMPLOYED IN ANY POST OFFICE SHALL BE A CONTRACTOR OR CONCERNED IN ANY CONTRACT FOR CARRYING THE MAIL.

SECTION 226 OF THE CRIMINAL CODE, 35 STAT., 1134, PROVIDES AS FOLLOWS:

WHOEVER, BEING A PERSON EMPLOYED IN THE POSTAL SERVICE, SHALL BECOME INTERESTED IN ANY CONTRACT FOR CARRYING THE MAIL, OR ACT AS AGENT, WITH OR WITHOUT COMPENSATION, FOR ANY CONTRACTOR OR PERSON OFFERING TO BECOME A CONTRACTOR IN ANY BUSINESS BEFORE THE DEPARTMENT, SHALL BE IMMEDIATELY DISMISSED FROM OFFICE, AND SHALL BE FINED NOT MORE THAN FIVE THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.

THE ACT OF JULY 28, 1916, 39 STAT., 418, APPROPRIATING "FOR MAIL MESSENGER SERVICE" FOR THE FISCAL YEAR 1917, CONTAINED A PROVISO AS FOLLOWS:

* * * PROVIDED FURTHER, THAT, IN THE DISCRETION OF THE POSTMASTER GENERAL, POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS AT POST OFFICES OF THE THIRD AND FOURTH CLASSES MAY ENTER INTO CONTRACTS FOR THE PERFORMANCE OF MAIL MESSENGER SERVICES, AND ALLOWANCES MAY BE MADE THEREFOR FROM THIS APPROPRIATION: PROVIDED FURTHER, THAT THE TOTAL AMOUNT PAYABLE UNDER SUCH CONTRACT TO ANY POSTMASTER, ASSISTANT POSTMASTER, OR CLERK SHALL NOT EXCEED $300 IN ANY ONE YEAR.

APPROPRIATIONS FOR "MAIL MESSENGER SERVICE" FOR FISCAL YEARS 1918 TO 1924, INCLUSIVE, DO NOT INCLUDE THIS PROVISO.

THIS PROVISO MADE AN EXCEPTION TO THE PROHIBITION CONTAINED IN SECTION 3850, REVISED STATUTES, AND SECTION 226 OF THE CRIMINAL CODE WITH RESPECT TO PAYMENTS MADE UNDER THE APPROPRIATION "FOR MAIL MESSENGER SERVICE" BUT DID NOT EXTEND TO PAYMENTS UNDER ANY OTHER APPROPRIATION FOR CARRYING THE MAIL. 25 COMP. DEC., 492.

IT IS UNDERSTOOD THAT THE PROVISO HAS BEEN CONSIDERED, SINCE ITS PASSAGE, BY THE POST OFFICE DEPARTMENT AS PERMANENT LEGISLATION. THE WORD "HEREAFTER" WHICH ORDINARILY INDICATES PERMANENCY IS LACKING AND THE ONLY WORDS APPEARING IN THE PROVISO WHICH MAY BE CONSTRUED AS GIVING A PERMANENT CHARACTER THERETO ARE THE LIMITATION OF PAYMENTS TO $300 "IN ANY ONE YEAR.'

THERE IS A SERIOUS DOUBT THAT AN EXPRESSION OF THIS KIND IN AN ANNUAL APPROPRIATION ACT SHOULD BE CONSTRUED AS SUFFICIENT TO MAKE A PERMANENT EXCEPTION TO SUCH STRICT PROHIBITORY STATUTES AS SECTION 3850, REVISED STATUTES, AND SECTION 226, CRIMINAL CODE.

HOWEVER THE PERMANENT CONSTRUCTION HERETOFORE PLACED ON THE PROVISO WILL NOT BE QUESTIONED FOR THE REMAINDER OF THE PRESENT FISCAL YEAR IN ORDER TO AFFORD AN OPPORTUNITY TO OBTAIN A STATUTORY EXPRESSION FROM CONGRESS OF A MORE PERMANENT NATURE.

IN THE PRESENT CASE, WHILE THE POSTMASTER IS WORTHY OF COMMENDATION FOR PERFORMANCE OF THE ADDITIONAL SERVICE AS MESSENGER IN THE EMERGENCY, THERE IS NO AUTHORITY OF LAW TO REIMBURSE HIM THEREFOR, AS IT DOES NOT APPEAR THAT HE HAD ANY PREVIOUS AUTHORITY BY CONTRACT OR DESIGNATION FROM THE POST OFFICE DEPARTMENT TO ACT IN SUCH CAPACITY, WHICH IS ESSENTIAL UNDER THE CONTROLLING STATUTE TO OBLIGATE THE GOVERNMENT FOR PAYMENT. HAVING PERFORMED THE SERVICE VOLUNTARILY HE HAS NO LEGAL CLAIM AGAINST THE UNITED STATES. SEE SECTION 3679, REVISED STATUTES, AS AMENDED BY ACT OF FEBRUARY 27, 1906, 34 STAT., 49.

THERE IS ALSO PROHIBITED PAYMENT UNDER GENERAL OR LUMP-SUM APPROPRIATIONS OF ANY COMPENSATION ATTACHED TO ANY EMPLOYMENT PRIOR TO APPOINTMENT OR DESIGNATION AS ACTING FOR THE OCCUPANT OF ANY OTHER OFFICE OR EMPLOYMENT. SECTION 12, ACT OF JULY 1, 1914, 38 STAT., 680. UNDER THESE STATUTES PAYMENT TO MR. MERRILL OF AN ADDITIONAL AMOUNT FOR SERVICE AS MAIL MESSENGER MAY NOT BE MADE.