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there was no response, but on the same date that the auditor disallowed the claim there was filed in his office an application for the same pay and allowances by Allen S. Mebane as administrator of the estate of said officer, the application being accompanied by a certified copy of letters of administration granted on the officer's estate by the Supreme Court of the District of Columbia.
Subsequently, on May 23, 1913, Allen S. Mebane as administrator filed in this office an application for a revision of the settlement hereinbefore referred to made by the auditor. Without deciding whether or not any allowance could be made upon the claim for pay and allowances alleged to be due for the service of the deceased officer, or whether or not the decision in 14 Comp. Dec., 795, should be followed, the question for decision in this office at the present time is whether or not the application for revision is made by a party who can be recognized under the law.
The application for administration upon the estate of John A. Mebane was made by a petition signed by Allen S. Mebane and presented to the Supreme Court of the District of Columbia. In the petition it is alleged that Allen S. Mebane, the petitioner, is a citizen of the United States and a resident of Knoxville, Tenn.; that John A. Mebane, late an officer in the United States Army, died while in the service September 27, 1854; that the officer's parents died many years ago; that he was unmarried; and that the only and nearest living next of kin, all being adults, were those whose names were set forth in the petition. It was further alleged that no previous letters of administration had been granted; that there were no debts, and that the only asset was the claim for longevity pay and allowances, amounting to $215, and that the strict proof of heirship required under the rules of the Treasury Department could not be furnished because the officer had been dead some 58 years.
Upon this petition it was adjudged by the court that it appearing to the satisfaction of the court that John A. Mebane died intestate that letters of administration be granted to Allen . Mebane upon his giving bond in the sum of $100. This bond was given.
The act of June 30, 1906 (34 Stat., 750), provides that in the settlement of accounts of deceased officers or enlisted men of the Army where the amount due the decedent's estate is less than $500 and no demand is presented by a duly appointed legal representative of the estate, the accounting officers may allow the amount found due to the decedent's widow or legal heirs in the order of precedence stated in the law.
This statute providing or authorizing payment to a “duly authorized ” legal representative makes it necessary for the accounting officers to determine whether an administrator is duly appointed, otherwise payment must be made to the heirs named in the act. A
payment to an administrator not duly appointed might require a second payment by the United States. In the present case the applicant for letters of administration did not state the place of death of the officer nor his domicile at that time. It appears that he died in the service at Port Hudson, La. The appellant did, however, specifically state that there were no debts and no assets other than the claim against the United States.
Upon this state of facts I am of opinion that Allen S. Mebane can not be recognized as the duly appointed administrator of the estate of John A. Mebane, for the reason that the accounting officers can not recognize an administrator appointed by the courts of the District of Columbia where jurisdiction to appoint such administrator is dependent upon the fact that the only asset is a claim against the United States. The same ruling was made by this office in a decision of June 29, 1912 (18 Comp. Dec., 1039), and in many former decisions of this office and of the predecessors to the office of Comptroller of the Treasury. See King v. United States (27 Ct. Cls., 529); Rutherford v. United States (27 Ct. Cls., 539); Vaughan v. Northup (15 Pet., 1); Wyman v. Halstead (109 U. S., 654); Thorman v. Frame (176 U. S., 350), and Borcheling v. United States (185 U. S., 223).
The application of Allen S. Mebane as administrator is dismissed for the reason that as said administrator he has no right to apply for a revision of the settlement made by the auditor of the claim of Allen S. Mebane et al.
This action is taken without prejudice to the rights of those persons whose claim was disallowed by the auditor, to apply for a revision and to file in this office evidence as to who are the heirs entitled to any amount that may be found due, provided application for revision is made within the time limited by law.
TRAVELING ALLOWANCES IN LIEU OF ACTUAL EXPENSES TO SUBSTI
TUTE RAILWAY POSTAL CLERKS.
A substitute railway mail clerk, provided by a railway postal clerk who has
been granted leave of absence under act of March 4, 1913 (37 Stat., 798), is entitled to be paid traveling allowance in lieu of actual expenses the same as the clerk who provided the substitute would have been entitled to receive
when on duty. Comptroller Downey to the Postmaster General, July 9, 1913:
I am in receipt of your letter of the 25th ultimo requesting my decision
" Whether payment by the Post Office Department for travel allowances to substitutes provided by clerks granted leave of absence under the act of March 4, 1913 (37 Stat., 798), is authorized.”
Said act provides:
“That hereafter the Postmaster General may, in his discretion, under such regulations as he may provide, allow any railway postal clerk who is not entitled to annual leave under other provision of law leave of absence with pay for a period not exceeding thirty days, with the understanding that his duties will be performed without expense to the Government during the period for which leave is granted, he to provide a substitute at his own expense.”
The railway postal clerks coming under the above provisions are those whose duties do not require them to work six days or more per week, 52 weeks per year, as distinguished from those whose duties do require them to work for such periods, the latter under the provisions of the act of March 1, 1909 (35 Stat., 667), being allowed “an annual vacation of 15 days with pay,” their substitute's compensation during the leave period being paid from an appropriation annually made therefor.
There is another class of railway postal clerks that may be granted leave of absence under the provisions of the act of March 1, 1909 (35 Stat., 667), as follows:
“That the Postmaster General may hereafter, in his discretion, under such regulations as he may provide, allow a clerk who is sick leave of absence with pay, his duties to be performed without expense to the Government during the period for which he is granted leave, not exceeding thirty days in any fiscal year."
The authority of the Postmaster General to make regulations for the payment of travel allowances to railway postal clerks and substitutes is found in the act of August 24, 1912 (37 Stat., 548), as follows:
That hereafter in addition to the salaries by law provided the Postmaster General is hereby authorized to make travel allowances in lieu of actual expenses, at fixed rates per annum, not exceeding in the aggregate the sum annually appropriated, to railway postal clerks, acting railway postal clerks, and substitute railway postal clerks, including substitute railway postal clerks for railway postal clerks granted leave with pay on account of sickness, assigned to duty in railway post-office cars while on duty, after ten hours from the time of beginning their initial run, under such regulations as he may prescribe, and in no case shall such an allowance exceed one dollar per day."
The appropriation for travel allowances for the current fiscal year is made by the act of March 4, 1913 (37 Stat., 798), as follows:
“For travel allowances to railway postal clerks, acting railway postal clerks, and substitute railway postal clerks, including substitute railway postal clerks for railway postal clerks granted leave with pay on account of sickness, $1,465,030.”
Your doubt as to whether payment may be made of travel allowances to substitutes provided by clerks granted leave of absence under the act of March 4, 1913, supra, arises from the fact that substitutes provided by clerks allowed sick leave are specifically mentioned in the act of August 24, 1912, supra, as a class of substitutes who may be paid such allowances.
In my judgment, the maxim of expressio unius est exclusio alterius has no such application here as to exclude the substitutes who are the subject of your inquiry from the benefits of the acts providing for the payment of travel allowances.
The act of August 24, 1912 (37 Stat., 548), supra, authorizes the payment of travel allowances in lieu of actual expenses “to railway postal clerks, acting railway postal clerks, and substitute railway postal clerks, including substitute railway postal clerks for railway postal clerks granted leave with pay on account of sickness."
This is also the language of the act making appropriation for the travel allowances.
The word “including” is not one of limitation in the sense that it restricts the payment of travel allowances to those substitutes only for railway postal clerks granted leave with pay on account of sickness.
Answering your question specifically, you are advised that payment of travel allowances may be made to substiutes provided by clerks granted leave of absence under the act of March 4, 1913 (37 Stat., 798), quoted above.
This decision leaves the Government in the same position so far as expenditures are concerned as if the clerk in question took no leave under the act. The clerk draws his pay, but turns it over to his substitute; the Government pays the substitute's travel allowances, which are no more and no less than it would have had to pay the clerk, instead of the substitute, was performing the services during the same period.
TRANSFER OF EMPLOYEE FROM A STATUTORY POSITION TO A POSITION UNDER A LUMP-SUM APPROPRIATION AT AN INCREASED COMPENSATION.
Section 7 of the act of August 26, 1912 (37 Stat., 626), does not prohibit the
transfer of a clerk from a position having a specific salary provided by statute to a position at an increased compensation payable from a lumpsum appropriation, provided the duties of the position to which transferred
are of a different nature from those performed in the statutory position. Comptroller Downey to Col. Spencer Cosby, United States Army, July 11, 1913:
I have received your letter of the 9th instant, as follows:
“I have been authorized by the Lincoln Memorial Commission to employ a clerk, at a salary of fifteen hundred dollars a year, to perform the clerical services that will be necessary in this office in connection with the construction of the Lincoln Memorial. This salary will be paid from the lump-sum appropriation of three hundred thousand dollars in the sundry civil act approved June 23, 1913, for commencing work for the erection of the Lincoln Memorial. (Public No. 3, p. 36.)
“A clerk who is employed at a statutory salary of twelve hundred dollars in the office of Public Buildings and Grounds has been selected as having the qualifications and experience necessary to fill this position, the duties of which will be different from those which he is now performing and of a much more responsible nature. As the position is a new one just created, it is difficult to say exactly what rate of compensation has been paid for the same or similar services during the preceding fiscal year, though I am of the opinion that the rate is, if anything, lower than that usually paid for similar services.
“ Your decision is requested as to whether the desired transfer can be made under the law."
The Comptroller has heretofore held that the restriction placed upon transfers from positions with a specific salary to positions under lump-sum appropriations by section 7 of the act of August 26, 1912 (37 Stat., 626), as amended by the act of March 4, 1913 (37 Stat., 790), does not apply where the service to be rendered in the position to which the employee is transferred is not the same or similar to that rendered in the specific position. (Decision of June 6, 1913, to the Secretary of the Interior, a copy of which is inclosed for your information.)
You state that the service to be rendered by this employee is different from the service rendered by him in the statutory position. What constitutes a different” service so as to take it without the rule of the statute as to same or similar service” may, in some cases, be difficult of determination, and the formulation of a fixed rule of construction applicable in all cases is evidently an impossibility. “Heads of departments," it is said, "shall cause this rule to be enforced,” and this provision of the statute places upon them the duty of determining questions of fact arising thereunder.
The clerk in question, in his statutory position, performs “clerical” service, and in his proposed employment by you he will perform
clerical” service, and if that were the true test no employee on a stautory roll performing "clerical" services could ever be transferred to a lump-sum roll and paid for “clerical" services from a lump-sum appropriation. The correction of the evils at which the statute was aimed does not require the invoking of such a rule, and, it would no doubt carry the statutory prohibition far beyond the legislative intent.
Clerical services in one instance may be entirely dissimilar to clerical services in another instance. They may be on an entirely differ