A-43098, JANUARY 15, 1935, 14 COMP. GEN. 543

A-43098, JANUARY 15, 1935, 14 COMP. GEN. 543

GOVERNMENT PRINTING OFFICE - APPRENTICE CONTRACTS - ADMINISTRATIVE PROMOTIONS THE PROVISIONS OF SECTION 202 OF THE ECONOMY ACT PROHIBITING ADMINISTRATIVE PROMOTIONS BECOMING EFFECTIVE JUNE 30, 1932, INTERVENED TO DISCONTINUE FURTHER ANNUAL INCREASES IN THE RATE OF COMPENSATION OF APPRENTICES IN THE GOVERNMENT PRINTING OFFICE PURSUANT TO THE TERMS OF THEIR CONTRACTS, WHICH ARE NOT SUCH CONTRACTS AS ARE PRECLUDED FROM MODIFICATION BY A STATUTE ENACTED SUBSEQUENT TO THE EFFECTIVE DATE OF THE CONTRACTS.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 15, 1935:

HARRY BONNETT, AN APPRENTICE IN THE GOVERNMENT PRINTING OFFICE, HAS FILED CLAIM IN THIS OFFICE, AS FOLLOWS:

I HEREBY MAKE CLAIM FOR COMPENSATION DUE ME AS AN EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE IN THE AMOUNT OF $264.00. THE FACTS OUT OF WHICH MY CLAIM ARISES ARE AS FOLLOWS:

ON DECEMBER 31, 1930, I ENTERED INTO A CONTRACT WITH THE UNITED STATES GOVERNMENT PRINTING OFFICE, ACTING THROUGH MR. GEORGE H. CARTER, PUBLIC PRINTER, WHEREBY THE GOVERNMENT PRINTING OFFICE AGREED TO EMPLOY AND INSTRUCT ME AS AN APPRENTICE IN THE TRADE OF PRINTER FOR A PERIOD OF FOUR YEARS FROM JANUARY 12, 1931.

THE GOVERNMENT PRINTING OFFICE FURTHER AGREED TO PAY ME, AS AN APPRENTICE, FOR MY SERVICES, THE FOLLOWING WAGES, IF MY EFFICIENCY RATING WAS SATISFACTORY, TO WIT:

"FOR THE FIRST YEAR, ONE-THIRD OF THE RATE OF WAGES OF MY TRADE;

FOR THE SECOND AND THIRD YEARS, ONE-HALF OF THE RATE OF WAGES OF MY TRADE;

FOR THE FOURTH YEAR, TWO-THIRDS OF THE RATE OF WAGES OF MY TRADE IN THE GOVERNMENT PRINTING OFFICE.'

THERE HAS NEVER BEEN ANY QUESTION AS TO THE SATISFACTORY CHARACTER OF MY EFFICIENCY.

I ENTERED UPON MY SERVICES AS AN APPRENTICE, PURSUANT TO THE AFOREMENTIONED CONTRACT, ON JANUARY 13, 1931.

DURING THE PERIOD HEREINAFTER MENTIONED, THE BASE PAY FOR THE TRADE HAS BEEN ONE DOLLAR ($1.00) PER HOUR.

FROM JANUARY 13, 1931, WHEN I ENTERED UPON THE PERFORMANCE OF MY CONTRACT AS APPRENTICE, TO JANUARY 26, 1932, I RECEIVED THIRTY-THREE AND ONE-THIRD CENTS (33 1/3 CENTS) PER HOUR FOR MY SERVICES, WHICH WAS IN ACCORDANCE WITH THE CONTRACT, WITH THE NEGLIGIBLE EXCEPTION OF THE PERIOD BETWEEN JANUARY 14, 1932, AND JANUARY 26, 1932. FROM JANUARY 26, 1932, TO JANUARY 13, 1934, I RECEIVED FIFTY CENTS (50 CENTS) PER HOUR FOR MY SERVICES, WHICH WAS LIKEWISE IN ACCORDANCE WITH MY CONTRACT. ON JANUARY 14, 1934, I WAS ENTITLED, UNDER THE CONTRACT, TO RECEIVE AN INCREASE IN MY PAY SO THAT I WOULD RECEIVE SIXTY-SIX AND TWO-THIRDS CENTS (66 2/3 CENTS) PER HOUR, THIS INCREASE TO CONTINUE UNTIL THE TERMINATION OF THE APPRENTICESHIP ON JANUARY 13, 1935.

CONTRARY, HOWEVER, TO THE TERMS OF THE CONTRACT BETWEEN THE PUBLIC PRINTER AND ME, THE PUBLIC PRINTER FAILED AND REFUSED TO INCREASE MY COMPENSATION ON JANUARY 14, 1934, TO SIXTY-SIX AND TWO-THIRDS CENTS (66 2/3 CENTS) PER HOUR. ON MARCH 28, 1934, THE PUBLIC PRINTER INCREASED MY PAY TO SIXTY CENTS (60 CENTS) PER HOUR, WHICH WAS, HOWEVER, MERELY AN ADJUSTMENT OF THE FIFTY CENTS (50 CENTS) PER HOUR TO THE 40-HOUR WEEK SCHEDULE. IT WAS NOT UNTIL SEPTEMBER 1, 1934, THAT MY PAY WAS INCREASED TO EIGHTY AND FOUR-TENTHS CENTS (80.4 CENTS) PER HOUR, WHICH WAS AN ADJUSTMENT OF THE SIXTY-SIX AND TWO-THIRDS CENTS (66 2/3 CENTS) PER HOUR WHICH I SHOULD HAVE RECEIVED BEGINNING JANUARY 13, 1934, TO THE 40-HOUR WEEK SCHEDULE. IT WILL THUS BE SEEN THAT BETWEEN JANUARY 13, 1934, TO SEPTEMBER 1, 1934, I WAS NOT RECEIVING THE RATE OF PAY PROVIDED BY MY CONTRACT WITH THE GOVERNMENT PRINTING OFFICE. I SHOULD HAVE RECEIVED BETWEEN THOSE TWO DATES SIXTY SIX AND TWO-THIRDS CENTS (66 2/3 CENTS) PER HOUR, OR EIGHTY AND FOUR TENTHS CENTS (80.4 CENTS), IF THE RATE FOR THAT ENTIRE PERIOD WAS TO BE ADJUSTED TO THE 40-HOUR WEEK SCHEDULE.

IF MY CALCULATION IS CORRECT, THE FAILURE OF THE PUBLIC PRINTER TO PAY ME AT THE RATE BY WHICH I WAS ENTITLED TO BE PAID CAUSED A DEFICIENCY DURING THE PERIOD IN QUESTION OF $264.00, FOR WHICH I NOW MAKE CLAIM. RESPECTFULLY REFER TO THE BRIEF ON THE LAW WHICH MY COUNSEL HAS FILED WITH YOU.

AN ADMINISTRATIVE REPORT, DATED DECEMBER 27, 1934, HAS BEEN RECEIVED FROM THE PUBLIC PRINTER, IN PERTINENT PART AS FOLLOWS:

* * * YOU ARE ADVISED THAT THE CONTRACT ENTERED INTO BY THE PUBLIC PRINTER WITH MR. BONNETT (A PHOTOSTATIC COPY OF WHICH IS ENCLOSED) UPON HIS APPOINTMENT TO THIS OFFICE ON JANUARY 12, 1931 (THE DAY HE REPORTED FOR DUTY), PROVIDES THAT HE SHOULD RECEIVE ONE-THIRD OF THE ESTABLISHED RATE OF PAY FOR HIS PARTICULAR TRADE DURING THE FIRST YEAR OF HIS TRAINING, ONE-HALF OF THE RATE DURING THE SECOND AND THIRD YEARS, AND TWO- THIRDS OF THE RATE DURING THE FOURTH YEAR.

UNDER THIS AGREEMENT, AND THE ESTABLISHED PRACTICE OF THE OFFICE, BONNETT BECAME ELIGIBLE FOR AND RECEIVED A PROMOTION OF $0.17 PER HOUR ON JANUARY 26, 1932, AS ON THE PRECEDING DAY HE HAD COMPLETED ONE YEAR'S ACTUAL SERVICE AND HAD MAINTAINED A SATISFACTORY EFFICIENCY RATING.

HIS THIRD YEAR OF ACTUAL SERVICE EXPIRED ON FEBRUARY 12, 1934, AND AS HE HAD MAINTAINED A SATISFACTORY EFFICIENCY RATING UP TO THAT DATE HE BECAME ELIGIBLE FOR AND WOULD HAVE RECEIVED A PROMOTION FROM $0.50 TO $0.67 PER HOUR HAD IT NOT BEEN FOR YOUR DECISION OF JULY 7, 1932 (A 43098), INTERPRETING SECTIONS 201, 202, AND 203 OF THE ACT OF JUNE 30, 1932, SAID DECISION READING IN PART AS FOLLOWS:

"2. THE ADVANCE IN THE WAGES OF APPRENTICES AND OTHER EMPLOYEES IN TRAINING IS BASED ON INCREASED EFFICIENCY, ADDED EXPERIENCE, OR LENGTH OF SERVICE. THEREFORE, NO ADVANCES IN THE RATES OF COMPENSATION FOR SUCH EMPLOYEES ARE AUTHORIZED DURING THE FISCAL YEAR 1933.'

NO FURTHER CONSIDERATION WAS GIVEN TO THE PROMOTION OF APPRENTICES UNTIL THE PASSAGE OF THE ACT OF MARCH 28, 1934. THE MANY DOUBTFUL QUESTIONS RAISED BY THE PASSAGE OF THIS ACT AND ITS APPLICATION TO THE EMPLOYEES OF THIS OFFICE WERE SUBMITTED TO YOU BY THE PUBLIC PRINTER UNDER DATE OF JUNE 25, 1934, WHICH WAS ANSWERED BY YOUR LETTER OF JULY 3, 1934. JULY 3, HE RESUBMITTED THE QUESTION BY LETTER DATED JULY 24, 1934, FOR THE REASONS OUTLINED THEREIN. THIS RESULTED IN YOUR LETTER OF AUGUST 7, 1934 (A- 56330), WHICH READS IN PERTINENT PART AS FOLLOWS:

"IT IS UNDERSTOOD THAT THE ONLY PROMOTIONS THAT WILL BE MADE WILL BE IN THE ADMINISTRATIVE OR NONPRODUCTION FORCE, THAT IS, AS TO EMPLOYEES IN THE POSITIONS, THE NUMBER OF WHICH DOES NOT NECESSARILY DEPEND UPON HOW MUCH OR HOW LITTLE PRINTING OR BINDING WORK IS TO BE DONE AND WITH RESPECT TO WHOM NO PROMOTIONS WILL BE MADE UNLESS SAVINGS THEREFOR ACCRUE ON AN ANNUAL BASIS.'

UNDER THIS DECISION IT IS BELIEVED THAT THE COMPENSATION TO AN APPRENTICE THROUGHOUT HIS TRAINING PERIOD AND UNTIL HE GRADUATES IS AN EXPENSE APPLICABLE TO THE ADMINISTRATIVE FORCE, AS THE NUMBER OF APPRENTICES TO BE CARRIED ON THE ROLLS DOES NOT DEPEND UPON HOW MUCH OR HOW LITTLE PRINTING AND/OR BINDING WORK IS TO BE DONE, BUT LIES SOLELY IN THE DISCRETION OF THE PUBLIC PRINTER, NOT TO EXCEED, HOWEVER, THE 200 MENTIONED IN THE ACT OF JUNE 7, 1924 (U.S.C., TITLE 44, SEC. 40), AND IS LIMITED ONLY BY THE FUNDS AVAILABLE THEREFOR.

IN VIEW OF THESE FACTS, AND FURTHER FACT THAT SAVINGS WERE AVAILABLE, ON AN ANNUAL BASIS, FOR PROMOTIONS IN THE ADMINISTRATIVE FORCES, UNDER YOUR DECISION OF AUGUST 7, 1934, SUPRA, THE PUBLIC PRINTER PROMOTED THIS APPRENTICE AND OTHER MEMBERS OF THE ADMINISTRATIVE FORCES AS SOON AFTER THE RECEIPT OF YOUR DECISION AS THE NECESSARY ADMINISTRATIVE WORK IN CONNECTION THEREWITH COULD BE PERFORMED, WHICH WAS ON SEPTEMBER 1, 1934.

THIS OFFICE IS IN AGREEMENT WITH THE ADMINISTRATIVE CONCLUSION THAT "THE COMPENSATION TO AN APPRENTICE THROUGHOUT HIS TRAINING PERIOD AND UNTIL HE GRADUATES IS AN EXPENSE APPLICABLE TO THE ADMINISTRATIVE FORCE" WITHIN THE DECISION OF AUGUST 7, 1934, A-56330, 14 COMP. GEN. 94. HENCE, THERE WAS NO LEGAL OBJECTION TO THE ADMINISTRATIVE PROMOTION OF THIS AND OTHER APPRENTICES EFFECTIVE SEPTEMBER 1, 1934, FROM SAVINGS ON AN ANNUAL BASIS.

THE CLAIM HERE PRESENTED IS BASED ON AN ALLEGED RIGHT TO A PROMOTION NOT GRANTED PRIOR TO SEPTEMBER 1, 1934, THAT IS, TO COVER THE PERIOD FROM JANUARY 14 TO AUGUST 31, 1934.

THE CONTRACT ENTERED INTO BETWEEN THE PUBLIC PRINTER AND THE APPRENTICE IN THIS CASE CONTAINS THE FOLLOWING PROVISION:

THE GOVERNMENT PRINTING OFFICE FURTHER AGREES TO PAY TO THE SAID APPRENTICE FOR HIS SERVICES THE FOLLOWING WAGES, IF HIS EFFICIENCY RATING IS SATISFACTORY:

FOR THE FIRST YEAR--- ONE-THIRD OF THE RATE OF WAGES OF HIS TRADE;

FOR THE SECOND AND THIRD YEARS--- ONE-HALF OF THE RATE OF WAGES OF HIS TRADE:

FOR THE FOURTH YEAR--- TWO-THIRDS OF THE RATE OF WAGES OF HIS TRADE IN THE GOVERNMENT PRINTING OFFICE.

IT WILL BE NOTED THAT THE TERMS OF THE CONTRACT OF EMPLOYMENT DO NOT PROVIDE FOR INCREASE IN COMPENSATION BY MERE LAPSE OF TIME, BUT REQUIRE DEFINITE ADMINISTRATIVE ACTION BASED ON A DETERMINATION OF THE EFFICIENCY OF THE EMPLOYEE TO AUTHORIZE EACH INCREASE AND TO PUT INTO EFFECT THE HIGHER RATES OF COMPENSATION STATED IN THE CONTRACT. CONSEQUENTLY, IT WOULD APPEAR THAT ANY INCREASE IN COMPENSATION UNDER SUCH CIRCUMSTANCES WOULD CONSTITUTE AN "ADMINISTRATIVE PROMOTION" WITHIN THE MEANING OF SECTION 202 OF THE ECONOMY ACT, SUPERSEDED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, AND AS AMENDED BY SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, WHICH INSOFAR AS HERE MATERIAL READS: "NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT * * * SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934.' SAME PROVISION CONTINUED FOR 1935. THE CONCLUSION OF THE DECISION OF JULY 7, 1932, 12 COMP. GEN. 5, AS TO THE INCREASE IN COMPENSATION OF THE APPRENTICES IS AFFIRMED.

THE ATTORNEYS FOR CLAIMANT CONTEND, IN PART, AS FOLLOWS:

IT IS RESPECTFULLY SUBMITTED THAT THE TERMS OF SECTIONS 201 AND 202 OF THE ACT OF JUNE 30, 1932, HAVE NO APPLICATION TO THOSE CIRCUMSTANCES WHERE THE GOVERNMENT HAS ENTERED INTO A SOLEMN CONTRACT WITH AN EMPLOYEE WHEREBY IT AGREES TO COMPENSATE HIM AT STATED RATES. WHEN A GOVERNMENT OFFICIAL, WHO IS ACTING PURSUANT TO AUTHORITY VESTED IN HIM BY LAW, ENTERS INTO A CONTRACT OF EMPLOYMENT WITH A PERSON AND AGREES TO PAY THAT PERSON A SPECIFIC AMOUNT GRADUATED OVER A PERIOD OF TIME, FOR THE GOVERNMENT TO ATTEMPT TO ABROGATE SUCH A CONTRACT, BY STATUTE, AFTER THE EMPLOYEE HAS PARTIALLY PERFORMED HIS OBLIGATIONS UNDER THE CONTRACT AND STOOD READY AND WILLING TO PERFORM THE REMAINDER OF THE CONTRACT, CONSTITUTES A GROSS DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW. IT IS NOT TO BE ASSUMED THAT CONGRESS WOULD KNOWINGLY OR LIGHTLY ATTEMPT SUCH A THING. IS SUBMITTED, HOWEVER, THAT CONGRESS DID NOT DO THIS, AND ADMINISTRATIVE OFFICERS SHOULD BE SLOW TO CONSTRUE STATUTES IN SUCH A MANNER AS TO CAST DOUBTS UPON THEIR CONSTITUTIONALITY.

IN A DECISION OF NOVEMBER 5, 1934, BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, IN THE CASE OF WILLIAM FIELD V. THE PUBLIC PRINTER, IT IS STATED AS FOLLOWS:

BUT IT HAS LONG BEEN SETTLED IN THIS COUNTRY, WITH CERTAIN CONSTITUTIONAL EXCEPTIONS NOT HERE INVOLVED, THAT A PUBLIC OFFICE IS NOT PROPERTY WITHIN THE CONSTITUTIONAL GUARANTY; THAT THE EMOLUMENTS THEREOF ARE SUBJECT TO LEGISLATIVE MODIFICATIONS AND CONTROL; AND, IN THE WORDS OF CHIEF JUSTICE FULLER,"GENERALLY SPEAKING, THE NATURE OF THE RELATION OF A PUBLIC OFFICER TO THE PUBLIC IS INCONSISTENT WITH EITHER A PROPERTY OR A CONTRACT RIGHT.' TAYLOR AND MARSHALL V. BECKHAM (NO. 1), 178 U.S. 548, 577.

IN CRENSHAW V. UNITED STATES, 134 U.S. 99, 108, THE SUPREME COURT SAID: "THE GREAT QUESTION OF PROTECTION TO CONTRACT RIGHTS AND VESTED INTERESTS, WHICH FORMS SUCH AN INTERESTING AND IMPORTANT FEATURE OF OUR CONSTITUTIONAL LAW, IS NOT DOMINATED BY THE TURN OF A PHRASE. OUR COURTS, BOTH STATE AND NATIONAL, LOOK ON THESE QUESTIONS THROUGH THE FORM TO THE SUBSTANCE OF THINGS; AND, IN SUBSTANCE, A STATUTE UNDER WHICH ONE TAKES OFFICE, AND WHICH FIXES THE TERM OF OFFICE AT ONE YEAR, OR DURING GOOD BEHAVIOR, IS THE SAME AS ONE WHICH ADDS TO THOSE PROVISIONS THE DECLARATION THAT THE INCUMBENT SHALL NOT BE DISMISSED THEREFROM. WHATEVER THE FORM OF THE STATUTE, THE OFFICER UNDER IT DOES NOT HOLD BY CONTRACT. HE ENJOYS A PRIVILEGE REVOCABLE BY THE SOVEREIGNTY AT WILL; AND ONE LEGISLATURE CANNOT DEPRIVE ITS SUCCESSOR OF THE POWER OF REVOCATION.' SEE ALSO NEWTON V. COMMISSIONERS, 100 U.S. 548; STONE V. MISSISSIPPI, 101 U.S. 814; BLAKE V. UNITED STATES, 103 U.S. 227; O-REILLY DE CAMARA V. BROOKE, 209 U.S. 45; SANCHEZ V. UNITED STATES, 216 U.S. 167; WEEKS V. U.S. EX REL. CREARY, 51 APP.D.C. 195, 277 F. 594; PEOPLE V. MORRIS, 13 WEND. 325; COMMONWEALTH V. BACON, 6 SERG. AND R. 322; BARKER V. PITTSBURGH, 4 BARR 51.

IN THIS CASE, THE PROVISION OF SECTION 202 OF THE ECONOMY ACT, PROHIBITING ADMINISTRATIVE PROMOTIONS BECOMING EFFECTIVE JUNE 30, 1932, INTERVENED DURING THE THIRD YEAR OF THE APPRENTICESHIP CONTRACT TO SUSPEND ANY FURTHER PROMOTIONS IN ACCORDANCE WITH THE TERMS OF THE CONTRACT UNTIL ON AND AFTER JULY 1, 1934, AND THEN ONLY OUT OF AMOUNTS AVAILABLE FROM SAVINGS ON AN ANNUAL BASIS PURSUANT TO THE TERMS OF SECTION 24 OF THE ACT OF MARCH 28, 1934, SUPRA. ..END :