A-30866, MAY 1, 1930, 9 COMP. GEN. 455

A-30866, MAY 1, 1930, 9 COMP. GEN. 455

COMPENSATION - PROMOTION - IMMIGRANT INSPECTORS AND TECHNICAL ADVISERS ON THE BASIS OF ADMINISTRATIVE ACTION CREATING THE POSITION OF TECHNICAL ADVISER FOR SERVICE ABROAD IN THE IMMIGRATION SERVICE, AS DISTINGUISHED FROM THE POSITION OF IMMIGRANT INSPECTOR, TECHNICAL ADVISERS ARE NOT CONTROLLED BY, NOR INCLUDED WITHIN, THE PROVISIONS OF THE ACT OF MAY 29, 1928, 45 STAT. 954, PRESCRIBING THE GRADES AND SALARY RATES FOR IMMIGRANT INSPECTORS, AND MAY BE PAID IN EXCESS OF $3,000 PER ANNUM, BUT SERVICE AS A TECHNICAL ADVISER MAY NOT BE INCLUDED IN COMPUTING LONGEVITY OF IMMIGRANT INSPECTORS FOR THE PURPOSE OF AUTOMATIC PROMOTION FROM ONE GRADE TO ANOTHER. 9 COMP. GEN. 424, AMPLIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, MAY 1, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 7, 1930, REQUESTING RECONSIDERATION OF DECISION OF THIS OFFICE DATED APRIL 2, 1930, 9 COMP. GEN. 424, CONSTRUING AND APPLYING THE IMMIGRANT INSPECTORS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 954, IN THE CASE OF IMMIGRANT INSPECTOR WILLIAM M. JOHNSON.

THERE WAS INVOLVED THE QUESTION AS TO THE AUTHORIZED SALARY RATE OF INSPECTOR JOHNSON FROM AND AFTER JULY 1, 1928, PRIOR TO WHICH HE HAD BEEN SERVING AS AN IMMIGRANT INSPECTOR AT NAPLES, ITALY, AND FROM WHICH DATE HIS TITLE WAS CHANGED TO THAT OF "TECHNICAL ADVISER," AND IN REGARD TO WHICH YOU PREVIOUSLY REPORTED "BUT HE CONTINUED TO PERFORM THE SAME DUTIES HE HAD BEEN PERFORMING UNDER THE TITLE OF IMMIGRANT INSPECTOR SINCE JUNE 1, 1927," WHEN HE HAD BEEN TRANSFERRED FROM THE UNITED STATES TO NAPLES, ITALY, AS AN IMMIGRANT INSPECTOR. IT THUS APPEARING THAT ALL OF THE SERVICE PERFORMED BY JOHNSON, BOTH IN THE UNITED STATES AND ABROAD, WAS AS AN IMMIGRANT INSPECTOR, THE DECISION OF APRIL 2, 1930, HELD (QUOTING FROM THE SYLLABUS):

FROM AND AFTER THE EFFECTIVE DATE OF THE IMMIGRANT INSPECTORS CLASSIFICATION ACT, MAY 29, 1928, 45 STAT. 954, THE SALARY RATES THEREIN FIXED FOR IMMIGRANT INSPECTORS WERE AND ARE EXCLUSIVE, AND NO IMMIGRANT INSPECTOR, WHETHER STATIONED AT HOME OR ABROAD, WAS OR IS AUTHORIZED TO BE PAID COMPENSATION IN EXCESS OF THE RATE OF $3000 PER ANNUM, THE MAXIMUM RATE FIXED THEREIN AS FOR GRADE 5.

UPON THE TRANSFER OF AN IMMIGRANT INSPECTOR FROM ONE STATION TO ANOTHER, EITHER IN THE UNITED STATES OR ABROAD, AND FROM A HIGHER TO A LOWER GRADE, THERE MAY BE INCLUDED IN DETERMINING THEREAFTER THE ONE YEAR'S SERVICE FOR THE PURPOSE OF PROMOTION TO THE NEXT HIGHER GRADE, CONTINUOUS SERVICE AS AN IMMIGRANT INSPECTOR PERFORMED PRIOR TO THE TRANSFER IN A HIGHER GRADE.

ON THE BASIS THAT ALL OF THE SERVICE PERFORMED BY JOHNSON WAS AS AN IMMIGRANT INSPECTOR, THE DECISION WAS AND IS CORRECT AND IS AFFIRMED.

YOU NOW STATE AS FOLLOWS:

THE ASSERTION THAT INSPECTOR JOHNSON, WHILE SERVING IN THE CAPACITY OF TECHNICAL ADVISER, PERFORMED THE SAME DUTIES THAT HE HAD BEEN PERFORMING UNDER THE TITLE OF IMMIGRANT INSPECTOR WAS INSERTED IN ERROR BY THE OFFICIAL WHO PREPARED THIS DEPARTMENT'S COMMUNICATION, AND WAS OVERLOOKED BY THE WRITER AT THE TIME THE LETTER WAS SIGNED. AS A MATTER OF FACT, THE LAW DEFINES WHAT THE DUTIES OF AN IMMIGRANT INSPECTOR SHALL BE, AND, AS I AM SURE IT WILL BE READILY APPARENT TO YOU, IT WOULD OBVIOUSLY BE IMPOSSIBLE FOR AN IMMIGRANT INSPECTOR TO PERFORM SUCH DUTIES OUTSIDE OF THE TERRITORIAL LIMITS OF THE UNITED STATES. IN THIS CONNECTION I WOULD RESPECTFULLY INVITE YOUR ATTENTION TO SECTION 16 OF THE ACT OF 1917, WHICH PROVIDES THAT---

"ALL ALIENS ARRIVING AT PORTS OF THE UNITED STATES SHALL BE EXAMINED BY AT LEAST TWO IMMIGRANT INSPECTORS AT THE DISCRETION OF THE SECRETARY OF LABOR AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE. IMMIGRANT INSPECTORS ARE HEREBY AUTHORIZED AND EMPOWERED TO BOARD AND SEARCH FOR ALIENS ANY VESSEL, RAILWAY CAR, OR ANY OTHER CONVEYANCE, OR VEHICLE IN WHICH THEY BELIEVE ALIENS ARE BEING BROUGHT INTO THE UNITED STATES. SAID INSPECTORS SHALL HAVE POWER TO ADMINISTER OATHS AND TO TAKE AND CONSIDER EVIDENCE TOUCHING THE RIGHT OF ANY ALIEN TO ENTER, REENTER, PASS THROUGH OR RESIDE IN THE UNITED STATES AND, WHERE SUCH ACTION MAY BE NECESSARY TO MAKE A WRITTEN RECORD OF SUCH EVIDENCE; * * *. EVERY ALIEN WHO MAY NOT APPEAR TO THE EXAMINING INSPECTOR AT THE PORT OF ARRIVAL TO BE CLEARLY AND BEYOND A DOUBT ENTITLED TO LAND SHALL BE DETAINED FOR EXAMINATION IN RELATION THERETO BY A BOARD OF SPECIAL INQUIRY. * * * THE DECISION OF AN IMMIGRANT INSPECTOR, IF FAVORABLE TO THE ADMISSION OF ANY ALIEN, SHALL BE SUBJECT TO CHALLENGE BY ANY OTHER IMMIGRANT INSPECTOR AND SUCH CHALLENGE SHALL OPERATE TO TAKE THE ALIEN WHOSE RIGHT TO LAND IS SO CHALLENGED BEFORE A BOARD OF SPECIAL INQUIRY FOR ITS INVESTIGATION.

THERE IS ADMINISTRATIVELY URGED THE DISTINCTION BETWEEN THE DUTIES OF IMMIGRANT INSPECTORS AND THE DUTIES OF TECHNICAL ADVISORS AND THAT THE FORMER CAN BE PERFORMED ONLY IN THIS COUNTRY. YOU QUOTE FROM SECTIONS 23 AND 24 OF THE IMMIGRATION ACT OF 1917, ACT OF FEBRUARY 5, 1917, 39 STAT. 892, 893, AS FOLLOWS:

* * * HE (COMMISSIONER GENERAL) MAY, WITH THE APPROVAL OF THE SECRETARY OF LABOR, WHENEVER IN HIS JUDGMENT SUCH ACTION MAY BE NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ACT, DETAIL IMMIGRATION OFFICERS FOR SERVICE IN FOREIGN COUNTRIES; AND, UPON HIS REQUEST, APPROVED BY THE SECRETARY OF LABOR, THE SECRETARY OF THE TREASURY MAY DETAIL MEDICAL OFFICERS OF THE UNITED STATES PUBLIC HEALTH SERVICE FOR THE PERFORMANCE OF DUTIES IN FOREIGN COUNTRIES IN CONNECTION WITH THE ENFORCEMENT OF THIS ACT. * * *

THAT IMMIGRANT INSPECTORS AND OTHER IMMIGRATION OFFICERS, CLERKS, AND EMPLOYEES SHALL HEREAFTER BE APPOINTED AND THEIR COMPENSATION FIXED AND RAISED OR DECREASED FROM TIME TO TIME BY THE SECRETARY OF LABOR, UPON THE RECOMMENDATION OF THE COMMISSIONER GENERAL OF IMMIGRATION, AND IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL-SERVICE ACT OF JANUARY 16, EIGHTEEN HUNDRED AND EIGHTY THREE. * * *

IT WOULD APPEAR FROM YOUR EXPLANATION, ETC., THAT THE ONLY MATERIAL DIFFERENCE BETWEEN THE DUTIES OF AN IMMIGRANT INSPECTOR AND THE DUTIES OF A TECHNICAL ADVISER IS THAT THE IMMIGRANT INSPECTOR TAKES ACTION HIMSELF ON THE INFORMATION DEDUCED FROM THE INSPECTION OR INVESTIGATION OF THE IMMIGRANT IN THIS COUNTRY, WHEREAS THE TECHNICAL ADVISER ADVISES THE CONSULAR OFFICER IN A FOREIGN COUNTRY AS TO WHETHER, IN HIS OPINION THE IMMIGRANT WOULD OR WOULD NOT BE ADMITTED UPON ARRIVAL AT A PORT IN THIS COUNTRY, WHICH ADVICE IS FURNISHED ON THE BASIS OF A SIMILAR INSPECTION OR INVESTIGATION OF THE IMMIGRANT MADE ABROAD.

THERE IS NOTHING EXPRESS IN THE 1917 STATUTE CITED BY YOU, OR OTHERWISE, PRECLUDING AN IMMIGRANT INSPECTOR FROM SERVING ABROAD IN AN ADVISORY CAPACITY. THE TERM "IMMIGRATION OFFICERS" AS USED IN SECTION 23 OF THE ACT OF FEBRUARY 5, 1917, SUPRA, IS BROAD ENOUGH TO INCLUDE IMMIGRANT INSPECTORS. THAT IMMIGRANT INSPECTORS WERE RECOGNIZED BY THE CONGRESS AS IMMIGRATION OFFICERS IS SHOWN BY THE REFERENCE, IN SECTION 24 OF THE SAID ACT OF FEBRUARY 5, 1917, TO "IMMIGRANT INSPECTORS AND OTHER IMMIGRATION OFFICERS.' IN FACT, THE NEW REQUIREMENTS MADE BY THE 1924 STATUTE WOULD SEEM TO JUSTIFY AND REQUIRE THE DETAIL OF THOSE BEST QUALIFIED IN THE IMMIGRATION SERVICE TO ADVISE THE CONSULAR OFFICERS AND IT WOULD APPEAR THAT INSPECTORS BEST MEET THESE QUALIFICATIONS. IN THE INSTANT CASE, JOHNSON ACTUALLY SERVED UNDER THE DESIGNATION OF IMMIGRANT INSPECTOR FROM JUNE 1, 1927, TO JULY 1, 1928, AT NAPLES, ITALY. IF YOUR CONTENTION BE CORRECT THAT IMMIGRANT INSPECTORS MAY NOT SERVE ABROAD, THEN THE SERVICE OF JOHNSON PRIOR TO JULY 1, 1928, WHEN HE WAS APPARENTLY TRANSFERRED TO THE POSITION OF TECHNICAL ADVISER, AT NAPLES, WAS ILLEGAL.

YOU REFER, ALSO, TO A PROVISO IN THE IMMIGRANT INSPECTORS CLASSIFICATION ACT OF MAY 29, 1928, ITSELF, THE ENTIRE TEXT OF WHICH IS AS FOLLOWS:

* * * PROVIDED FURTHER, THAT WHEN INSPECTORS OR OTHER EMPLOYEES OF THE IMMIGRATION SERVICE ARE ORDERED TO PERFORM DUTY IN A FOREIGN COUNTRY, OR TRANSFERRED FROM ONE STATION TO ANOTHER, IN A FOREIGN COUNTRY, THEY SHALL BE ALLOWED THEIR TRAVELING EXPENSES IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY OF LABOR MAY DEEM ADVISABLE, AND THEY MAY ALSO BE ALLOWED, WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF LABOR, THE EXPENSES INCURRED FOR THE TRANSFER OF THEIR WIVES AND DEPENDENT MINOR CHILDREN; THEIR HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY, NOT EXCEEDING IN ALL FIVE THOUSAND POUNDS, INCLUDING THE EXPENSES FOR PACKING, CRATING, FREIGHT, AND DRAYAGE THEREOF: * * *

THE CONGRESS, BY THIS PROVISO, IN EFFECT, RECOGNIZED THAT INSPECTORS, AS WELL AS OTHERS, MIGHT LAWFULLY SERVE ABROAD SINCE INSPECTORS ARE SPECIFICALLY MENTIONED IN THE PROVISION FOR TRAVELING EXPENSES WHEN ORDERED TO A FOREIGN COUNTRY OR TRANSFERRED FROM ONE STATION TO ANOTHER IN A FOREIGN COUNTRY. HOWEVER, I AM NOT DISPOSED TO QUESTION FURTHER THE ACTION OF THE ADMINISTRATIVE OFFICE IN CREATING AND CONTINUING THE POSITION OF TECHNICAL ADVISER AS SEPARATE AND DISTINCT FROM THE POSITION OF IMMIGRANT INSPECTOR. CONSEQUENTLY, THE STATUTE OF MAY 29, 1928, WILL BE CONSTRUED AND APPLIED ON THAT BASIS.

TECHNICAL ADVISERS, AS DISTINGUISHED FROM IMMIGRANT INSPECTORS, ARE NOT CONTROLLED BY, NOR INCLUDED WITHIN, THE PROVISIONS OF SAID ACT OF MAY 29, 1928, AND MAY BE PAID IN EXCESS OF $3,000 PER ANNUM. THEREFORE, CREDIT WILL BE ALLOWED IN THE DISBURSING OFFICER'S ACCOUNTS FOR SALARY PAYMENTS TO WALTER M. JOHNSON AT THE RATE OF $3,500 PER ANNUM FOR THE PERIOD JULY 1, 1928, TO AND INCLUDING JANUARY 31, 1929. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT IMMIGRANT INSPECTORS, WHILE SERVING ABROAD AS SUCH MAY NOT BE PAID IN EXCESS OF $3,000 PER ANNUM, AS HELD IN THE PRIOR DECISION.

SINCE TECHNICAL ADVISERS AND IMMIGRANT INSPECTORS ARE TO BE CONSIDERED AS DISTINCT POSITIONS, SERVICE AS A TECHNICAL ADVISER MAY NOT BE INCLUDED, UNDER THE PROVISIONS OF SAID ACT OF MAY 29, 1928, IN COMPUTING LONGEVITY OF IMMIGRANT INSPECTORS FOR THE PURPOSE OF AUTOMATIC PROMOTION FROM ONE GRADE TO ANOTHER. THAT IS TO SAY, SERVICE AS TECHNICAL ADVISER MAY NOT BE REGARDED AS SERVICE AS AN INSPECTOR IN ANY OF THE FIVE GRADES IN WHICH THE ACT OF 1928 DIVIDES IMMIGRANT INSPECTORS. ON THIS BASIS, AS INSPECTOR JOHNSON ENTERED GRADE 3 OF IMMIGRANT INSPECTOR AT $2,500 PER ANNUM ON FEBRUARY 1, 1928, UPON HIS RETURN TO THIS COUNTRY FROM ABROAD, IT WAS UNLAWFUL TO PROMOTE HIM TO GRADE 4 AT $2,700 PER ANNUM ON JULY 1, 1929, OR AT ANY TIME PRIOR TO FEBRUARY 1, 1930, WHEN HE HAD COMPLETED A YEAR'S SATISFACTORY SERVICE IN GRADE 3. ACCORDINGLY, THERE MUST BE DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER THE DIFFERENCE BETWEEN THE RATE OF $2,500 AND $2,700 PER ANNUM PAID TO JOHNSON FOR THE PERIOD JULY 1, 1929, TO JANUARY 31, 1930, INCLUSIVE, AND INSPECTOR JOHNSON WILL NOT BE ELIGIBLE FOR PROMOTION TO GRADE 5, AT $3,000 PER ANNUM UNTIL FEBRUARY 1, 1931. ALSO, OTHER ACCOUNTS MUST BE ADJUSTED ACCORDINGLY.