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persons who have performed varied clerical duties connected with customs administration. Samplers (merchandise) are appointed to view and report on imported dutiable merchandise, to take samples when necessary, and to perform allied functions. In order to perform the duties assigned to them, they must of necessity devote from 35 to 50 per cent of their time to duties which are strictly clerical.

"(3) Whether, and to what extent, assignments or transfers have been made prior to July 1, 1928, between the various classes of positions having the abovementioned designations without change in the pav status of the employee.

"As the employees in question had a first-grade clerical status prior to July 1, 1928, as well as at the present time, they were eligible for transfer between the various classes of positions having the above mentioned designations. Under the regulations governing transfers in the Customs Service, such changes were made without loss in compensation unless the transfer was in the nature of a demotion. It is impracticable to state to what extent transfers or promotions between the classes of positions in question were made, but where employees demonstrated fitness they were eligible and were freely given such transfers or promotions under the regulations indicated. Such transfers, unless they were in the nature of a demotion, were without change in pay status, or with an increase in salary. The same is true as to transfers from the classes of positions in question to positions of clerk.

"As indicated in preceding paragraphs, the positions of deputy collector and of cashier usually are filled by the promotion of clerks; transfers from clerk to storekeeper and from storekeeper to clerk have been frequent and usual, such transfers being without change in salary or at an increase; and transfers from sampler (merchandise) to clerk have been freely made with the approval of the Civil Service Commission without further examination and have been effected at the same or at an increased salary. Furthermore, at some of the smaller customs ports employees with the designation of clerk, are performing the duties of storekeeper and of cashier. In practically every district in the Customs Service clerks perform the duties of deputy collector under special authorization of the department.

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"In connection with the positions mentioned in this department's letter of March 1, 1929, it is requested that a decision be made also on the question of transfers from the position of inspector to that of clerk. Inspectors have been appointed during a long period of years from the first-grade clerical register. the same register from which clerks are appointed. During this period the practice has obtained of free intertransfer between these two positions without loss of salary, transfers at the large number of border and smaller seaboard and interior ports from the inspector force to clerical positions usually being considered as a promotion and sometimes carrying an increase in pay. The clerical or 'inside' force, which is usually much smaller than the 'outside' or inspection force at such ports, is recruited for positions involving more than routine duties from the corps of inspectors, by the selection of men who have demonstrated knowledge of customs law, regulations, and procedure, and ability to handle customs problems. The higher positions at such ports, which are a part of the 'inside' force, usually are filled (except 'presidential' positions) by promotion from the clerical ranks. At the larger seaports, especially at New York, it is the usual practice to recruit the inspector ranks from the clerical force, though it is sometimes very desirable from an administrative standpoint, or for the good of the employee, to transfer an inspector to a position of clerk without loss in salary. Inability to transfer inspectors to clerical positions without loss of pay disrupts at many ports the satisfactory and effective method heretofore followed of securing the best-equipped men for 'inside' positions."

Construing the customs classification act of May 29, 1928 (45 Stat. 955), in the light of the past practice of the Customs Service with respect to personnel it may be held that the designation of clerk as used in said statute may be applied to classes of customs field employees, except those given other specific designations in the statute itself, which fulfill the following conditions: (1) The paramount duties of the positions are certified by the administrative office as clerical in character, and (2) the incumbents of the positions are required to have a first grade clerical status under the rules and regulations of the Civil Service Commission. See decision of June 29, 1929, A-27520.

This rule is intended to apply to classes of employees and not to individual positions within a class. It must be assumed that as to the classes of positions given designation other than lerk in the statute with salary ranges differing

from that of clerk, the Congress intended a definite distinction and such classes of employees may not be considered as clerks or credit allowed for services in such positions for computing longevity as clerks. See question and answer 3 in decision of February 27, 1929 (8 Comp. Gen. 467, 469). See also decision of June 28, 1929, A-27392.

Under this rule, and on the basis of the administrative reports received from the Treasury Department and the Civil Service Commission, deputy collectors, storekeepers, and cashiers may be considered as clerks within the meaning of the customs classification act of May 29, 1928, supra. All appointments, transfers, and other changes in the personnel and the pay rolls involving such classes of employees should carry the designation of clerk followed by the appropriate administrative designation; for instance, clerk (deputy collector), clerk (storekeeper), and clerk (cashier). Appropriate changes in the regulations are for consideration.

As to samplers outside of New York City, neither of the two conditions above stated to give them the status of clerk within the meaning of the act are present. As to samplers at New York City, your statement that this class of employees devote only from 35 to 50 per cent of their time to duties which are clerical would not appear to fulfill condition (1), although condition (2) apparently is fulfilled. Accordingly, based on the administrative reports from the Secretary of the Treasury and the Civil Service Commission, it must be concluded that samplers do not have the status of clerks within the meaning of the act of May 29, 1929, and that their salaries may not be adjusted under that act.

Referring to your letter of March 1, 1929, question 1 is answered in the affirmative as to deputy collectors, storekeepers, and cashiers and in the negative as to samplers.

Question 2 may be answered by stating that if the other classes of employees not herein specifically considered fulfill the conditions above stated to give them the status of clerk within the meaning of the statute, the question would be answered in the affirmative. The matter should be governed by regulation containing a clear and definite description of the duties of each class of position and a statement that the administrative office considers the paramount duties of such classes of employees as clerical if such be the fact.

Question 3 is answered in the affirmative as to deputy collectors, storekeepers, and cashiers and in the negative as to samplers.

The unnumbered question contained in the last paragraph of your letter of March 1, 1929, is answered by stating that if deputy collectors are to be classed as clerks, rather than supervisory officials, they may be transferred to a position of inspector only at the minimum salary rate fixed for inspectors. (8 Comp. Gen. 152.)

Referring to your letter of June 29, 1929, your are advised that inspectors may be transferred to the position of clerk only at the minimum salary rate of $1,700 fixed in the act of May 29, 1928. (8 Comp. Gen. 152.)

Respectfully,

A-29202

The SECRETARY OF THE TREASURY.

J. R. MCCARL, Comptroller General of the United States.

WASHINGTON, November 9, 1929.

SIR: There has been received, presumably by your authority, from the Assistant Commissioner of Customs, request dated October 3, 1929, for review of the action of this office in withholding credit in the accounts of Collector of Customs Charles H. Holtzman, Baltimore, Md., for payments made to Customs Clerk John F. Burns, representing the difference in salary between the rates of $1,900 and $2,300 per annum for the period March 28 to May 31, 1929.

By letter of March 5, 1929, this office was informed by the Commissioner of Customs that "John F. Burns at the close of business on July 21, 1928, completed two years of satisfactory clerical service, having been appointed in the Customs Service on July 22, 1926." His name appears on the March 16 to 31, 1929, pay roll as a clerk "not graded," on which roll he was paid at the rate of $1,900 per annum for the period March 16 to 31, 1929. On the April 1 to 15, 1929, pay roll he was paid as a grade CAF-6 clerk, at the rate of $2,300 per annum, the minimum rate established for that grade by the act of May 28, 1928 (45 Stat. 776), known as the Welch Act, amending the original classification act of 1923, together with the difference between the rates of $1,900 and $2,300 per annum for the period March 28 to 31, 1929, the pay roll bearing the following notation: "Inc. from $1,900-3/28-29. D/L 3/27/29."

In the settlement of Collector Holtzman's accounts for April and May, 1929, credit was not allowed for the salary payments made to Burns in excess of the rate of $1,900 per annum, the rate established by section 1 of the customs classification act of May 29, 1928 (45 Stat. 955), for clerks having two years' but less than three years' satisfactory service.

In the request for review it is contended that Burns became legally entitled to salary at the rate of $2,300 per annum by reason of his promotion on March 28, 1929, by administrative action, to an existing vacancy in grade CAF-6, under the provision in section 3 of said act of May 29, 1928, which reads:

"Nothing in this act shall be construed to prevent the promotion of any employee at any time to a vacant position in a higher grade, and when so promoted such employee shall receive the compensation fixed in accordance with law for such position; * * * ""

Section 1 of said customs classification act of May 29, 1928, provides, in so far as here material, as follows:

"That the following annual rates of compensation are hereby established for the employees in the Customs Service hereinafter specified:

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"(c) Clerks, entrance salary, $1,700; clerks having one year's satisfactory service, $1,800; clerks having two years' satisfactory service, $1,900; clerks having three years' satisfactory service, $2,000; clerks having four years' satisfactory service, $2,100; thereafter promotion of clerks to higher rates of compensation shall be in accordance with existing law."

Said act was specifically made effective July 1, 1928. The phrase "existing law," in the provision for promotion of clerks to rates above $2,100, would include section 3 of the act of May 26, 1928, supra, authorizing the heads of the departments to adjust the compensation of certain civilian positions in the field service, the compensation of which was adjusted by the act of December 6, 1924 (43 Stat. 704), as extended through subsequent fiscal years, to correspond, so far as may be practicable, to the rates established by said act of May 28, 1928, for positions in the District of Columbia. But the use of the word "thereafter" in the provisions for promotion of clerks to higher rates precludes from such promotion any clerk with less than four years' satisfactory service. Therefore, on and after July 1, 1928, $2,100 per annum is the maximum salary rate authorized for customs clerks in the field service who have had not more than four years' continuous satisfactory service, but higher rates are authorized "in accordance with existing law," and within available appropriations, for clerks who have had more than four years' continuous satisfactory service.

Section 3 of the statute quoted above on which the assistant collector of customs is basing his request for removal of the disallowances in the accounts of the collector, is not effective to authorize the administrative office to promote a clerk having not more than four years' continuous satisfactory service to rates of compensation in excess of $2,100 per annum while retaining the status of clerk. The section would permit the promotion of a clerk having any number of years' service, with the approval of the Civil Service Commission and subject to the usual limitations as to initial salary, to a vacant position not clerical in character with salary of more than $2,100 per annum, or to promote a clerk having more than four years' satisfactory service to a vacant clerical position with salary of more than $2,100 per annum. In other words, sections 1 and 3 of the statute are not inconsistent, and under the fundamental principle of statutory construction the two sections are to be construed in connection with each other. It would be most unreasonable to conclude that the Congress intended in section 3 of the statute to provide a means by which the administrative office could disregard the express terms of section 1 fixing a definite automatic increase based on longevity for clerks in the Customs Service.

As clerk John F. Burns had completed only two years' continuous satisfactory service on July 21, 1928, his legal salary rate after that date to and including July 21, 1929, was $1,900 per annum, and on July 22, 1929, his legal salary rate became $2,000 per annum. His salary payments must be adjusted accordingly. The action in the audit is sustained.

Respectfully,

J. R. MCCARL, Comptroller General of the United States.

Memorandum for Senator Watson.

TREASURY DEPARTMENT,
BUREAU OF CUSTOMS,
Washington, July 1, 1930.

The bill (H. R. 12742) is a measure to amend the act approved May 29, 1928, which adjusted the compensation of certain employees in the Customs Service. The present bill does not provide for any increases in salary, but simply changes the language of the act of May 29, 1928, in order to meet certain rulings of the Comptroller General.

After the act of May 29, 1928, was approved, the Treasury Department put it into effect as they interpreted the law and the intent of Congress, but later the Comptroller General issued certain rulings which stopped the Treasury Department from carrying out certain practices in connection with transfers of employees which had been followed in the past. customs who was receiving $2,100 per annum was transferred to a higher grade As an illustration, an inspector of clerical position in the customhouse, and heretofore he was always transferred without any loss in salary, but under the ruling of the Comptroller General he was forced to suffer a reduction of $400, wnich was the entrance salary of a clerk. The Comptroller General has called for the repayment of this money from the employees involved, and has given the Treasury Department until July 1, this year, to obtain remedial legislation. The amount of money involved is about $6,000 and covers about 30 employees.

As stated above the proposed bill (H. R. 12742) does not increase salaries in the Customs Service but simply changes the language of the former act in order to meet the decisions of the Comptroller General.

O

FRANK DOW,

Assistant Commissioner of Customs.

AUTHORIZING THE SECRETARY OF THE NAVY TO DELIVER TO THE CUSTODY OF THE CITY OF DENVER, COLO., THE SHIP'S BELL, PLAQUE, WAR RECORD, NAME PLATE, AND SILVER SERVICE OF THE CRUISER "DENVER"

JULY 2, 1930.-Ordered to be printed

Mr. HALE, from the Committee on Naval Affairs, submitted the

following

REPORT

[To accompany H. R. 10387]

The Committee on Naval Affairs, to whom was referred the bill (H. R. 10387) authorizing the Secretary of the Navy, in his discretion, to deliver to the custody of the city of Denver, Colo., the ship's bell, plaque, war record, name plate, and silver service of the cruiser Denver, that is now or may be in his custody, having considered the same, report favorably thereon, without amendment, and with the recommendation that the bill do pass.

The bill meets with the approval of the Navy Department, as shown by the following letter from the Acting Secretary of the Navy addressed to the chairman of the Committee on Naval Affairs of the House of Representatives, and which is hereby made a part of this report:

NAVY DEPARTMENT,

The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS,

Washington, April 2, 1930. House of Representatives, Washington. D. C.

MY DEAR MR. CHAIRMAN: Replying further to the committee's letter of March 3, 1930, transmitting the bill (H. R. 10387) authorizing the Secretary of the Navy, in his discretion, to deliver to the custody of the city of Denver, Colo., the ship's bell, plaque, war record, name plate, and silver service of the cruiser Denver that is now or may be in his custody, and_requesting the views and recommendations of the Navy Department thereon, I have the honor to inform the committee as follows:

The U. S. S. Denver is at present in commission and on active service. The Navy Department has no objection to the enactment of the bill H. R. 10387, provided the articles mentioned therein be retained on board the Denver until such time as that vessel is stricken from the Navy list.

Sincerely yours,

ERNEST LEE JAHNCKE,
The Acting Secretary of the Navy.

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