SEPTEMBER 3, 1921, 1 COMP. GEN. 107

SEPTEMBER 3, 1921, 1 COMP. GEN. 107

CLERKS, UNITED STATES COURTS - COMPENSATION WHERE THE SALARY OF A CLERK OF A UNITED STATES COURT WAS INADVERTENTLY FIXED IN A LOWER GRADE THAN HE WAS ENTITLED TO UNDER PROVISIONS OF THE ACT OF FEBRUARY 26, 1919, 40 STAT., 1182, THE CERTIFICATE OF THE ATTORNEY GENERAL CORRECTING THE ERRONEOUS ACTION OF HIS PREDECESSOR, BY PLACING THE CLERK IN THE PROPER GRADE, MAY BE GIVEN RETROACTIVE EFFECT TO JULY 1, 1919, THE DATE THE CONTROLLING ACT BECAME EFFECTIVE, AND PAYMENT OF BACK PAY TO THAT DATE AT THE INCREASED RATE IS AUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 3, 1921:

THE CHIEF, STATE AND OTHER DEPARTMENTS DIVISION, HAS SUBMITTED FOR APPROVAL, DISAPPROVAL, OR MODIFICATION, MEMORANDUM DECISION TO THE EFFECT THAT A CERTIFICATE BY THE ATTORNEY GENERAL DATED JUNE 28, 1921, CAN NOT BE GIVEN A RETROACTIVE APPLICATION IN FIXING THE SALARIES OF THE CLERKS OF THE FEDERAL COURTS FOR NORTH DAKOTA AND WYOMING AT $4,000 PER ANNUM FROM JULY 1, 1919, INSTEAD OF $3,500 PER ANNUM, AS STATED IN THE GENERAL SCHEDULE FIXING ALL SUCH SALARIES UNDER THE ACT OF FEBRUARY 26, 1919, 40 STAT., 1182, AND ALSO THAT SAID CERTIFICATE BEING STATED TO CORRECT ERROR IN THE PREVIOUS FIXING OF THE SALARIES, IT IS SUFFICIENT TO AUTHORIZE THE PAYMENT OF SUCH SALARIES AT $4,000 PER ANNUM AFTER JUNE 28, 1921.

THE CERTIFICATE OF THE ATTORNEY GENERAL IS AS FOLLOWS:

DEPARTMENT OF JUSTICE,

WASHINGTON, D.C., JUNE 28, 1921.

ORDER NO.

IN ORDER TO CORRECT ERROR ARISING THROUGH INADVERTENTLY FAILING TO TAKE INTO CONSIDERATION CERTAIN VITAL FACTS AFFECTING THE RELATIVE EARNINGS OF THE CLERK OF THE UNITED STATES DISTRICT COURTS, FOR THE JUDICIAL DISTRICTS OF NORTH DAKOTA AND WYOMING, AND PECULIAR TO SAID DISTRICTS, WHICH IF THEY HAD BEEN TAKEN INTO CONSIDERATION WOULD HAVE PLACED SAID CLERKS IN THE CLASS FOR WHICH SALARIES OF $4,000 PER ANNUM WERE FIXED, THE SALARIES OF THE CLERKS OF THE UNITED STATES DISTRICT COURTS FOR SAID DISTRICT ARE HEREBY FIXED AT $4,000 PER ANNUM, RESPECTIVELY, FROM JULY 1, 1919, INSTEAD OF $3,500 PER ANNUM, AS STATED IN THE GENERAL SCHEDULE FIXING ALL SUCH SALARIES UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 26, 1919, ENTITLED "AN ACT FIXING THE SALARIES OF THE CLERKS OF THE UNITED STATES DISTRICT COURTS, AND TO PROVIDE FOR THEIR OFFICE EXPENSES AND FOR OTHER PURPOSES," AND SAID GENERAL SCHEDULE OF SALARIES IS HEREBY MODIFIED ACCORDINGLY.

H. M. DAUGHERTY,

ATTORNEY GENERAL.

THE QUESTION OF THE SALARIES OF THE CLERKS OF THE UNITED STATES DISTRICT COURTS FOR THE JUDICIAL DISTRICTS OF NORTH DAKOTA AND WYOMING WAS THE MATTER OF SEVERAL DECISIONS BY THE FORMER COMPTROLLER OF THE TREASURY. COMP. DEC., 1073, JULY 24, 1920, DECEMBER 10, 1920, AND JUNE 16, 1921. THE FORMER COMPTROLLER OF THE TREASURY WAS OF THE OPINION, AS EXPRESSED IN THESE DECISIONS, THAT WHEN THE SALARIES OF THE CLERKS HAD BEEN FIXED BY THE ATTORNEY GENERAL IN PURSUANCE OF THE ACT OF FEBRUARY 26, 1919, HIS POWER THEREUNDER WAS EXHAUSTED, AND NEITHER HE NOR HIS SUCCESSOR COULD THEREAFTER LAWFULLY READJUST ANY SALARIES SO FIXED IN ANY INDIVIDUAL CASE, BUT ALSO EXPRESSED THE VIEW THAT---

IF, HOWEVER, THROUGH ERROR, OR INADVERTENCE, THE SALARIES OF THESE TWO CLERKS HAVE NOT BEEN ADJUSTED IN ACCORDANCE WITH A CONSTRUCTION OF THE STATUTE AS APPLIED GENERALLY TO CLERK SIMILARLY SITUATED, I THINK THEY ARE STILL OPEN TO ADJUSTMENT UPON SUCH LEGAL BASIS, THE FAILURE OF YOUR PREDECESSOR TO SO ADJUST THEM BEING AN ERROR OF FACT OPEN TO CORRECTION BY YOU.

I UNDERSTAND THAT THE CERTIFICATE OF THE ATTORNEY GENERAL OF JANUARY 28, 1921, IS GIVEN IN CONNECTION WITH THIS VIEW OF THE FORMER COMPTROLLER OF THE TREASURY. THE CERTIFICATE DOES NOT SET OUT IN DETAIL THE FACTS RELATING TO THE ERRORS THEREIN CORRECTED, AND I THINK THAT IT PROPERLY SHOULD HAVE SHOWN THE GENERAL CHARACTER OF THOSE ERRORS. THE RESPONSIBILITY, HOWEVER, IS THAT THE ATTORNEY GENERAL, AND THE ISSUING OF THAT CERTIFICATE JUSTIFIES THE ACCOUNTING OFFICERS IN ASSUMING IN CONNECTION WITH WHAT WAS HERETOFORE SUBMITTED TO THE ACCOUNTING OFFICERS THAT THERE WAS BEFORE HIM EVERYTHING NECESSARY SHOWING ERROR IN THE ACTION OF THE FORMER ATTORNEY GENERAL. IF SUCH ERROR EXISTED IT NECESSARILY MUST HAVE EXISTED IN THE ORIGINAL FIXING OF THE AMOUNT OF THE SALARIES, AND HENCE THE CORRECTION MUST RELATE BACK TO THE ORIGINAL DATE. THIS IS NOT GIVING RETROACTIVE EFFECT IN THE ORDINARY SENSE, BUT MAKING SALARIES THE TRUE SALARIES FROM THEIR PROPER DATE. THE MEMORANDUM DECISION SUBMITTED IS MODIFIED ACCORDINGLY.