B-132808, AUGUST 26, 1957, 37 COMP. GEN. 138

B-132808, AUGUST 26, 1957, 37 COMP. GEN. 138

OFFICERS AND EMPLOYEES - ACCEPTANCE OF FOREIGN PRESENTS, EMOLUMENTS, ETC. - COURT EMPLOYEES AN INDIVIDUAL WHO IS IN RECEIPT OF A WORLD WAR II PENSION FROM THE BRITISH GOVERNMENT AND WHO IS APPOINTED AS A COURT CRIER IN A UNITED STATES DISTRICT COURT WITH REGULARLY PRESCRIBED DUTIES AND COMPENSATION FIXED BY LAW AND PAYABLE FROM APPROPRIATED FUNDS IS REGARDED AS RECEIVING AN EMOLUMENT FROM A FOREIGN GOVERNMENT AND IS A PERSON HOLDING AN OFFICE OF PROFIT OR TRUST WITHIN THE MEANING OF ARTICLE 1, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION, SO AS TO PRECLUDE THE PAYMENT OF COMPENSATION CONCURRENTLY WITH THE RECEIPT OF PENSION PAYMENTS FROM THE BRITISH GOVERNMENT WITHOUT THE CONSENT OF CONGRESS.

TO W. L. ELLIS, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AUGUST 26, 1957:

ON AUGUST 1, 1957, YOU ASKED US TO DECIDE WHETHER A RECENTLY APPOINTED COURT CRIER MAY BE PAID THE COMPENSATION OF HIS POSITION CONCURRENTLY WITH THE RECEIPT OF PENSION PAYMENTS FROM THE BRITISH GOVERNMENT FOR SERVICES IN WORLD WAR II.

YOU RELATE THAT A DISTRICT COURT JUDGE HAS JUST EMPLOYED A NEW COURT CRIER WHO IS A BRITISH CITIZEN AND THAT ALTHOUGH HE IS IN THE PROCESS OF NATURALIZATION, HE DOES NOT EXPECT TO LOSE HIS PENSION WHEN HE BECOMES AN AMERICAN CITIZEN. YOU SAY THAT HE CANNOT CONTINUE IN THE JOB AS COURT CRIER, WHICH PAYS ONLY $3,415 A YEAR, UNLESS HE CAN CONTINUE TO RECEIVE HIS PENSION, WHICH WE UNDERSTAND IS FOR SERVICE IN THE BRITISH ARMY.

ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION OF THE UNITED STATES READS IN PART AS OLLOWS:

AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM (THE UNITED STATES), SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE. (PARENTHETICAL PORTION ADDED.)

THE ISSUES RAISED BY YOUR LETTER ARE, THEREFORE, WHETHER A COURT CRIER HOLDS AN OFFICE OF PROFIT OR TRUST AND WHETHER THE PENSION RECEIVED IS A PRESENT OR EMOLUMENT FROM A FOREIGN STATE.

28 U.S.C. 755 PROVIDES THAT EACH DISTRICT JUDGE MAY APPOINT A CRIER FOR THE COURT IN WHICH HE PRESIDES WHO SHALL PERFORM ALSO THE DUTIES OF BAILIFF AND MESSENGER. 28 U.S.C. 604 (A) (5) PROVIDES THAT THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SHALL FIX THE COMPENSATION OF THE COURT CRIERS.

AN OFFICE IS A PUBLIC STATION OR EMPLOYMENT, CONFERRED BY THE APPOINTMENT OF GOVERNMENT. THE TERM EMBRACES THE IDEAS OF TENURE, DURATION, EMOLUMENT, AND DUTIES. UNITED STATES V. HARTWELL, 6 WALL. 393; BASKINS V. UNITED STATES, 32 F.1SUPP. 518; HAWTHORNE V. FISHER, 33 F.1SUPP. 891. AN OFFICER OF THE UNITED STATES WITHIN THE CONSTITUTIONAL MEANING IS ONE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, BY THE COURTS OF LAW OR BY THE HEAD OF SOME EXECUTIVE DEPARTMENT OF THE GOVERNMENT. ARTICLE II, SECTION 2, CLAUSE 2 OF THE CONSTITUTION; UNITED STATES V. MARCUS, 106 F.2D 497; BROOKS V. UNITED STATES, 33 F.1SUPP. 68; UNITED STATES V. MOUAT, 124 U.S. 303. THE WORD "COURT" IS COMMONLY USED SYNONYMOUSLY OR INTERCHANGEABLY WITH THE WORD "JUDGE.' UNITED STATES V. MCCABE, 129 F. 708; IN RE WATKINS' ESTATE, 104 P.2D 389; STATE V. SULLIVAN CIRCUIT COURT, 88 NE2D 326. THUS, IT HAS BEEN HELD THAT APPOINTMENT BY A DISTRICT JUDGE CONSTITUTES APPOINTMENT BY A COURT OF LAW WITHIN THE MEANING OF ARTICLE II, SECTION 2, CLAUSE 2 OF THE CONSTITUTION. 4 COMP. DEC. 297. THE COURT CRIER HOLDS HIS APPOINTMENT FROM A COURT OF LAW; HE RECEIVES FOR HIS SERVICES A COMPENSATION PAID FROM APPROPRIATED FUNDS WHICH IS FIXED PURSUANT TO LAW; HE HAS REGULARLY PRESCRIBED SERVICES TO PERFORM; AND IN THIS CASE WE UNDERSTAND HIS DUTIES ARE CONTINUING AND PERMANENT, NOT OCCASIONAL OR TEMPORARY. CONSEQUENTLY, HE IS A "PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST" WITHIN THE MEANING OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION. CF. 27 OP.ATTY.GEN.

A PENSION IS A PERIODICAL ALLOWANCE OF MONEY GRANTED BY A GOVERNMENT IN CONSIDERATION OR RECOGNITION OF MERITORIOUS PAST SERVICES. 70 C.J.S. 423. IT IS CONSIDERED A GRATUITY WHERE GRANTED FOR SERVICES PREVIOUSLY RENDERED AND WHICH AT THE TIME THEY WERE RENDERED GAVE RISE TO NO LEGAL OBLIGATION. RIGGS V. DISTRICT RETIREMENT BOARD OF LOS ANGELES CITY SCHOOLS, 132 P.2D 1. ON THE OTHER HAND A PENSION IS CONSIDERED AS DEFERRED COMPENSATION WHERE IT WAS PROVIDED FOR BY LAW AT THE TIME THE SERVICES WERE RENDERED. DAVID V. VEITSCHER MAGNESITWERKE ACTION GESELLSCHAFT, 35 A.2D 346; SCHIEFFELIN V. BERRY, 216 N.Y.S. 367; WRIGHT V. CRAIG, 195 N.Y.S. 391.

THE TERM "PRESENT" IS DEFINED IN BLACK'S LAW DICTIONARY, THIRD EDITION AS "A GIFT; A GRATUITY; ANYTHING PRESENTED OR GIVEN.' IN WEBB V. UNITED STATES, 249 U.S. 96, A "PRESENT" HAS BEEN HELD TO BE A "GIFT" AND IN COMMISSIONER OF INTERNAL REVENUE V. MONTAGUE, 126 F.2D 948, A "GIFT" HAS BEEN HELD TO BE A "GRATUITY.' THUS, A PENSION WHICH IS A GRATUITY MUST BE CONSIDERED A "PRESENT" WITHIN THE MEANING OF ARTICLE I, SECTION 9, CLAUSE 8.

THE TERM "EMOLUMENT" IS DEFINED IN BLACK'S LAW DICTIONARY, THIRD EDITION, AS "THE PROFIT ARISING FROM OFFICE OR EMPLOYMENT; THAT WHICH IS ANNEXED TO THE POSSESSION OF AN OFFICE AS SALARY, FEES, AND PERQUISITES; ADVANTAGE; GAIN, PUBLIC OR PRIVATE.' IT HAS ALSO BEEN HELD TO BE THAT WHICH IS RECEIVED AS COMPENSATION FOR SERVICES. REALS V. SMITH, 56 P. 690; VANSANT V. STATE, 53 A. 711; TOWN OF BRUCE V. DICKEY, 6 N.E. 435. THUS, A PENSION WHICH IS IN THE NATURE OF DEFERRED COMPENSATION FOR SERVICES PREVIOUSLY RENDERED MUST BE REGARDED AS AN "EMOLUMENT" WITHIN THE MEANING OF ARTICLE I, SECTION 9, CLAUSE 8.

WE ARE UNABLE TO DETERMINE FROM THE RECORD PRESENTLY AVAILABLE WHETHER THE PENSION RECEIVED BY THE COURT CRIER IN QUESTION IS TO BE CLASSED AS A GRATUITY OR AS DEFERRED COMPENSATION UNDER THE PRINCIPLES DISCUSSED ABOVE. HOWEVER, IN EITHER EVENT, IT FALLS WITHIN THE PURVIEW OF THE CONSTITUTIONAL PROHIBITION. THEREFORE, WE CONCLUDE THAT THE COURT CRIER MAY NOT CONTINUE TO BE PAID THE COMPENSATION OF HIS POSITION CONCURRENTLY WITH THE RECEIPT OF PENSION PAYMENTS FROM THE BRITISH GOVERNMENT WITHOUT THE CONSENT OF CONGRESS.