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provisions and making the contribution which it requires merely be. cause its legislature sits less than 60 days after it meets.
Taking the statute as a whole the provision that a State shall be entitled to the benefits of the act "until the legislature of such State meets in due course and has been in session sixty days” must be construed as setting a limitation of sixty days after it first convenes within which the legislature must accept and comply with the provi. sions of the act if it is to participate in its benefits.
Having succeeded to the powers and duties of the Comptroller of the Treasury I decide that under the facts stated in your submission the State of South Carolina is not now entitled to the benefits of this act.
PROMOTIONS OF POSTAL EMPLOYEES.
Under the provisions of the act of June 5, 1920, 41 Stat., 1051-2, dividing post
office inspectors and clerks at division headquarters into various grades with fixed salaries for each grade, and authorizing promotions at the beginning of the quarter following a year's satisfactory service in the next lower grade, promotions may be made at the beginning of the quarter following one year's service since the employee's last promotion, whether that promotion was before, on, or after July 1, 1920.
Comptroller General McCarl to the Postmaster General, July 8, 1921:
I have your letter of June 27, 1921, requesting decision of a question presented as follows:
An act approved June 5, 1920, to reclassify postmasters and employees of the postal service and readjust their salaries and compensation on an equitable basis provides as follows with respect to the salaries of clerks-incharge at division headquarters and of post office inspectors:
“ That clerks at division headquarters of postoffice inspectors shall be divided into six grades, as follows: Grade one-salary, $1,600; grade two-salary, $1,700; grade three salary, $1,850; grade four-salary, $2,000; grade five salary, $2,150; grade six-salary, $2,300; and there shall be one chief clerk at each division headquarters at a salary of $2,600. That clerks at division headquarters shall be promoted successively to grade five at the beginning of the quarter following a year's satisfactory service in the next lower grade, and one clerk at each division headquarters may be promoted to grade six after one year's satisfactory service in grade five."
The same act makes the following provision respecting the salaries of post office inspectors:
“That post office inspectors shall be divided into seven grades, as follows: Grade one-salary, $2,300; grade two_salary, $2,500; grade three-salary, $2,700; grade four-salary, $2,900; grade five salary, $3,200; grade sixsalary, $3,500; grade seven-salary, $3,700; and there shall be fifteen inspectors in charge at $4,200. Inspectors shall be promoted successively to grade five at the beginning of the quarter following a year's satisfactory and efficient service in the next lower grade, and to grade six at the beginning of the quarter following the expiration of one year's meritorious service in grade five, and not to exceed 20 per centum of the force to grade seven for specially meritorious service after not less than one year's service in grade six. The three grades of inspectors without per diem allowance and the three senior grades of field inspectors shall be considered on a parity in readjusting the inspectors to the grades provided."
Your decision is requested as to whether a clerk at division headquarters or an inspector who has not been promoted after a year's service in any of the grades enumerated may be promoted at the beginning of the next succeeding quarter, or whether it is necessary before considering him for advancement to await the elapse of another full year.
The question as stated in the last paragraph of your letter is not entirely clear, but I assume that you have reference to employees who prior to July 1, 1920, had been serving in the grades to which they were assigned on July 1, 1920, under the provisions of the act of June 5, 1920, 41 Stat., 1045, and that your doubt in the matter is as to whether the year's service necessary to entitle them to advance automatically to the next higher grade should begin to run from July 1, 1920, or from the date of their promotion to the grade in which they were serving on July 1, 1920.
The act in question contains a provision, page 1053, as follows: All employees herein provided for in automatic grades, who have not reached the maximum grades to which they are entitled to progress automatically, shall be promoted at the beginning of the quarter following the completion of one year's sat.sfactory service since their last promotion, regardless of any increases in salaries granted them by the provisions of this act.
This provision would seem to answer your question by indicating that it is the intent and purpose of the law that automatic promotions be made at the beginning of the quarter following one year's service since the employee's last promotion, whether that promotion was before, on, or after July 1, 1920, and I have to advise that you are authorized to make promotions accordingly.
CLERKS, UNITED STATES COURTS-HOLDING OTHER POSITIONS.
A person holding both the offices of justice of the peace and United States
commissioner should act in his capacity as United States commissioner in committing offenders against Federal laws, or, if he acts as justice of the peace, should be placed in the same position as regards payment of his fees that he would have occupied had he acted as commissioner; hence a clerk of United States court also holding offices of United States commissioner and justice of the peace is prohibited by provisions of the act of March 4, 1921, 41 Stat., 1413, from receiving any compensation for services in either capacity of United States commissioner or justice of the peace in Federal cases other than his regular salary as clerk of the court.
Decision by Comptroller General McCarl, July 9, 1921.
The Auditor for the State and Other Departments submitted to the Comptroller of the Treasury for approval, disapproval, or modification his decision of June 8, 1921, as follows:
The following decision is submitted for approval, disapproval or modification under the Act of July 31, 1894, 28 Stat., 208:
This office has before it for settlement an account submitted by Burns P. Hodgman, as Justice of the Peace, covering the period from March 25 to March 31, 1921, in which he claims fees for services performed during said period in accordance with U, S. Commissioner's fee bill.
Mr. Hodgman is Clerk of the U. S. District Court for the district of New Hampshire and the records of this office show that he also holds the office of U. S. Commissioner for the district of New Hampshire.
The Sundry Civil Appropriation Act approved March 4, 1921, 41 Stat., 1413, eontains the following provision :
" That no clerk or deputy clerk or assistant in the office of the clerk of a United States district court shall receive any compensation or emoluments through any office or position to which he may be appointed by the court, other
than that received as such clerk, deputy clerk, or assistant, whether from the United States or from private litigants."
In Vol. 27 Comp. Dec., page 821, in construing this provision you stated : “ Clerks of courts and their deputies and assistants by recent legislation have been put upon salaries payable by the Government, so that the Government pays for their time and services. The evident purpose of this legislation is to prohibit receipt by them of any compensation from any source other than these salaries."
In Vol. 20 Comp. Dec., page 692, you stated as follows:“ Section 1014, Revised Statutes, confers upon justices of the peace authority and power to act as committing officers in Federal cases, in the same manner and to the same extent that like authority and power is thereby conferred on United States Commissioners. When acting under the section justices of the peace are by virtue of the statute Federal officers engaged in administering Feleral laws."
In view of the above it is the opinion of this office and it so decides :
1st that Mr. Hodgman should have performed the services for which fees are claimed in his official capacity as United States Commissioner; 2d that inasmuch as he performed them as justice of the peace he was by virtue of the statute, as quoted above, a Federal official, and is by the provision of the act of March 4, 1921, quoted above, prohibited from receiving any compensation for these services other than his regular salary as clerk of the court.
While section 1014, Revised Statutes, authorizes justices of the peace to act as Federal committing officers, the duty of committing offenders against Federal laws rests primarily upon United States commissioners. It is only in case no commissioner is available that practice has sanctioned the service of justices of the peace in that capacity. One holding both offices should act in the capacity of commissioner, and if he acts in the other capacity should be placed in the same position as regards payment of his fees that he would have occupied if he had acted as commissioner.
The auditor's decision is approved.
LEASES-TERMINATION AT END OF FISCAL YEAR.
As officers of the Government are prohibited by section 3679, Revised Statutes,
as amended, limiting expenditures of the Government departments to the appropriations for the fiscal year, from executing a lease to run beyond the end of one fiscal year, except when specifically authorized by law, the legal effect of a lease for five years and four months was to bind the United States only to the end of the first fiscal year, with an option from year to year until the end of the term, and the termination of the lease at the close of the first fiscal year did not constitute a breach of contract on the part of the United States which could be made the basis of a claim for damages.
Decision by Comptroller General McCarl, July 12, 1921:
Benjamin Stern, Louis Stern, and Arthur H. IIahlo, executors of the estate of Isaac Stern, applied July 1, 1921, for a revision of the action of the Auditor for the Treasury Department in disallowing by settlement No. 187976, dated June 13, 1921, their claim for $43,288.33 as damages on account of the alleged breach of a lease agreement made and entered into between them and the Commissioner of Internal Revenue on September 12, 1919.
Under the terms of the said agreement the claimants leased to the United States the entire second floor of a certain building in the city of New York “ for the term of five years and four months commencing on the first day of October in the year one thousand nine hundred and nineteen, and terminating on the thirty-first day of January in the year one thousand nine hundred and twenty-five at a yearly rental of $22,000, said rental to be paid monthly in equal payments on the last day of each month.
With reference to termination of the lease the agreement provided :
It is stipulated and agreed that this lease may be terminated by the lessee at the end of the current or any succeeding Government fiscal year thereafter, during the term of this lease, in the event that Congress should fail to make appropriation for payment of rental for the ensuing fiscal year, it being expressly understood that lessee's liability hereunder is limited to successive fiscal years as such appropriations become available.
By letter dated May 11, 1920, the Commissioner of Internal Revenue notified the lessor that owing to the consolidation of the office of the collector for the third district with the office of the collector for the second district on February 1, 1920, it was deemed advisable to terminate the lease now under consideration at the close of the fiscal year 1920, and that accordingly said lease would be terminated and canceled effective June 30, 1920.
Claimants contend that the lease was for a fixed period, which does not expire until January 31, 1925, and that since an appropriation for the Internal Revenue Service was made for the fiscal year beginning July 1, 1920, the surrender of the property on June 30, 1920, and the failure to pay rent therefor after said date constituted a breach of the lease agreement, on account of which the Government is liable in damages.
Section 3732, Revised Statutes, provides that no contract on behalf of the United States shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments in certain cases.
There is no general law authorizing the Commissioner of Internal Revenue to enter into a lease agreement on behalf of the United States. Hence the only authority of law for the agreement made in this case is the provision in the annual appropriation act of March 1, 1919, 40 Stat., 1233, which appropriates for salaries and expenses of collectors of internal revenue * * * rent of offices outside of the District of Columbia * * * and other necessary expenses in collecting internal-revenue taxes.” This provision constitutes the sole authority of law under which the commissioner acted in making the lease agreement now under consideration and said provision does not authorize the making of a lease for any period beyond June 30, 1920. In this connection attention is invited to section 3679, Revised Stat
utes, as amended by the act of March 3, 1905, 33 Stat., 1257, and the act of February 27, 1906, 34 Stat., 48, which contains a provision as follows:
No Executive Department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law.
Since the Commissioner of Internal Revenue exceeded his authority in attempting to make a lease for five years and four months, the legal effect of the agreement was to bind the United States only for the period from October 1, 1919, to June 30, 1920, with an option from year to year until the end of the term. Hence, the termination of the lease at the close of the fiscal year 1920 did not constitute a breach of contract on the part of the United States and can not be made the basis of a claim for damages. Chase v. United States, 155 U. S., 489; M'Collum v. United States, 17 Ct. Cls., 92; Reed Smoot: v. United States, 38 Ct. Cls., 418.
The action of the auditor in disallowing the claim is affirmed.
STENOGRAPHERS TO JUSTICES OF THE SUPREME COURT OF THE
DISTRICT OF COLUMBIA.
As the stenographers authorized for each justice of the Supreme Court of the
District of Columbia are appointed by the court generally without mention of the justice to whom they may be assigned, the termination of the tenure of the office of a justice by death or otherwise does not also terminate the tenure of the position of the stenographer assigned to that justice, but the stenographer may continue to hold the position until the appointment of an official successor.
Comptroller General McCarl to the Attorney General, July 12, 1921:
I have your letter of June 24, 1921, addressed to the Comptroller of the Treasury, as follows:
In order that proper instructions may be given to the disbursing clerk of this Department, your opinion is requested as to whether payment may be authorized, covering the salary of Miss Margaret C. Kroll, as stenographer of the Supreme Court of the District of Columbia for the period of actual service following the death of Justice Gould, for whom she rendered service until May 20, 1921.
The authority of law for stenographers to the Justices of the Supreme Court of the District of Columbia is contained in the annual legislative, executive, and judicial appropriation act, the appropriation for the current year appearing on page 482 of the Digest, and reading as follows:
"Salaries, Supreme Court, District of Columbia, 1921. Supreme Court, District of Columbia : Chief Justice, $8,000; five associate justices, at $7,500 each ; six stenographers, one for the chief justice and one for each associate justice, at $1,100 each; in all, $52,100, one-half of which shall be paid from the revenues of the District of Columbia.-Legislative Act May 29, 1920.” 41. Stat., 687.
The decision of your office pertaining to the termination of the services of stenographers to justices of the Supreme Court of the United States, 4 Comp. Dec., 358, does not appear to be altogether applicable to the conditions existing in the present case, as Miss Kroll was appointed by the Court, and not by Justice Gould. There is transmitted herewith a copy of the order of appoint