July 1, 1928, is legal and proper, his salary therefore having been at the rate of $1,860 per annum. Upon request from this office there was furnished under date of January 24, 1929, a certificate showing the number of years' satisfactory service of the customs clerks who were shown to have been given automatic increases in salary effective July 1, 1928, under the act of May 29, 1928, (3445 Stat. 955). With respect to Frank G. Toren, it is stated in the certificate that "Frank G. Toren served as clerk in the post office from February 11, 1905, to August 8, 1907; and as inspector in the Customs Service at Chicago from August 8, 1907, to July 1, 1920, and was reinstated December 5, 1925." It is understood the reinstatement on December 5, 1925, was as a clerk in the Customs Service. The act of May 29, 1928, supra, provides as follows: "That the following annual rates of compensation are hereby established for the employees in the Customs Service hereinafter specified: "(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. * * * * * "SEC. 2. All new appointments of employees specified in section 1 shall be made at the minimum rate of the appropriate salary range." The case presents for consideration and decision three questions under the controlling statute, as follows: (1) Whether the 1, 2, 3, and 4 years' satisfactory service must have been continuous to entitle customs clerks to the respective salary grades fixed by the law; (2) whether service as a postal clerk may be included in computing longevity placement in the automatic salary grades of customs clerks effective July 1, 1928, or for automatic promotion thereafter; and (3) whether service as customs inspector may be included in computing such longevity of customs clerks. (1) Under a similar statute governing automatic promotion of railway postal clerks, act of June 5, 1920 (41 Stat. 1050, 1053; see also act of February 28, 1925, 43 Stat. 1062), it was held, in decision of November 29, 1922 (2 Comp. Gen. 363), as follows (quoting, in part, from the syllabus): "The one year's satisfactory service required to entitle railway postal clerks to automatic promotion under the act of June 5, 1920 (41 Stat. 1050, 1053), must be continuous and immediately precede the promotion, * * Also, in decision dated February 21, 1922 (1 Comp. Gen. 444), wherein was cited 1 id. 340, and 24 Comp. Dec. 356, it was held as follows (quoting from the syllabus): "A substitute railway postal clerk who becomes completely separated from the service during the first calendar year of his service as such and who is thereafter reinstated will not be entitled to receive the pay of a substitute of grade 2 until after one full calendar year's service after reinstatement." The instant case is analogous and question (1) as above stated is answered in the affirmative. (2) In decision of September 29, 1928 (8 Comp. Gen. 152, 153), wherein was considered the Customs Service act of May 29, 1928, it was held that transfers from some other branch of the Government service should be considered as "new appointments" within the meaning of section 2 of the act, and that employees so transferred should be paid initially at the minimum salary rate provided for each class of positions specified in the act. It follows, therefore, that prior clerical service in some other branch of the Government, such as a postal clerk, could not be included in computing longevity of customs clerks for placement as of July 1, 1928, or for automatic promotion thereafter. See, generally, Fourth Comptroller General 495, as to reinstatements in different positions constituting, in effect, "new appointments" under the classification act of 1923, and article 1308, Customs Regulations, 1923, limiting reinstatements in the Customs Service to "within a period not exceeding five years from their separation from the service under the provisions of Rule IX of the civil-service rules, as amended." See, also, what was stated with respect to railway postal clerks in decision of October 28, 1927 (7 Comp. Gen. 295, 297). Accordingly, even if the service performed by Toren as a postal clerk and as a customs clerk had been continuous, question (2) would be answered in the negative. (3) The decision of September 29, 1928, supra, held, also, that transfers from some other branch of the Customs Service to any of the classes of positions specified in the act of May 29, 1928, should be considered as "new appointments" within the meaning of section 2 thereof. What has been stated in the answer to question (2) is equally applicable in answering this question. Accordingly, even if the service performed by Toren as customs inspector and customs clerk had been continuous, question (3) would be answered in the negative. On July 1, 1928, Frank G. Toren was entitled to count as longevity under the provisions of the act of May 29, 1928, only the service as customs clerk from December 5, 1925, to and including June 30, 1928, which is more than two years and less than three years service. Therefore, his salary rate from July 1, 1928, to December 4, 1928, inclusive, should have been $1,900 per annum, and thereafter $2,000 per annum. Credit for an amount representing the difference between those rates and the rate paid, $2,100 per annum, will be disallowed in the accounts of the collector. The employee's salary should be adjusted accordingly. In this connection attention is invited to the following from decision of June 16, 1927 (6 Comp. Gen. 826, 827): (* * * It may be stated in this connection that the interests of the Government and the others concerned would be best served if doubtful questions of law involving expenditures of public funds under new statutes were submitted to this office as soon as possible after the passage of the act and in advance of any expenditures thereunder." A-28672 WASHINGTON, September 24, 1929. There is before this office for consideration the question as to the rate of compensation legally payable to Jesse M. McCormick, an employee of the Customs Service at Pittsburgh, Pa., for periods on and after July 1, 1928, effective date of the customs classification act of May 29, 1928. (45 Stat. 955.) It appears from the record as disclosed in the accounts of Collector of Customs S. H. Thompson, that Mr. McCormick was originally appointed as an inspector in the Customs Service on March 19, 1925; that his transfer from the position of inspector, CAF-5, in the collector's office, at $1,860 per annum, to that of clerk, CAF-4, in the appraiser's office at the same salary rate, was approved by the department June 18, 1928; that the transfer was not actually effected until November 20, 1928, during which interval he continued to perform the services and hold the title of inspector; that effective July 1, 1928, his salary was increased as inspector under the provisions of the customs classification act of May 29, 1928, supra, from $1,860 to $2,100 per annum, the minimum salary rate established under said act for customs inspectors; that on July 30, 1928, the Commissioner of Customs recommended specified increases in pay for certain employees in the appraiser's office, including Jesse M. McCormick, clerk, from $1,860 to $2,000, the rate established by such act for clerks having three years' satisfactory service, Mr. McCormick having apparently been allowed longevity credit for his service as inspector, although in decision of February 27, 1929 (8 Comp. Gen. 467), it was held that in computing the longevity of a customs clerk for the purpose of determining his placement under the basic statute, his service as inspector may not be included in the computation; and that under such recommendation which was approved by the Assistant Secretary of the Treasury, August 2, 1928, and which provided, also, that the increases of salary therein authorized would be effective on July 1, 1928, except in cases where the employees had been appointed, transferred, or promoted to their positions on a date subsequent to July 1, 1928, in which case the increases would be effective on the date of such appointment, transfer, or promotion, Mr. McCormick was paid at the rate of $2,000 per annum for the period November 20, 1928, the date of his appointment as clerk, to December 15, 1928. It appears, further, that by letter of December 17, 1928, the appraiser of merchandise at Pittsburgh was advised that the Secretary of the Treasury had amended his approval dated June 18, 1928, supra, authorizing the transfer of this employee from inspector, CAF-5 at $1,860 per annum, to clerk, CAF-4, at the same salary, so as to show his transfer as inspector, not graded, at $2,100, to clerk, not graded, at $2,100, which action it was stated would have the effect of revoking so much of the department's approval of August 2, 1928, supra, as covered the increase in pay from $1,860 to $2,000 per annum. Under the rule announced in decision of September 29, 1928 (8 Comp. Gen. 153) that all employees appointed from some other branch of the Customs Service should be considered as "new appointments" within the meaning of sertion 2 of the con trolling statute, and paid initially at the minimum salary rate provided for in each class of position specified in the statute, the action attempted as per the said letter of December 17, 1928, was unauthorized. The employee was paid on December 27, 1928, per voucher 383, the difference between the rates of $2,100 and $2,000 per annum, the rate theretofore paid on vouchers 320 and 350, for the period from November 20 to December 15, 1928, after which date the employee's salary was regularly paid at the rate of $2,100 per annum. It is well settled that an appointment or transfer is not finally effected until entrance upon duty. Thus, the mere approval by the administrative office of the transfer on June 18, 1928, would not consummate the transfer if the employee continued to perform the duties of inspector. Accordingly, irrespective of the attempted paper adjustments in the status of this employee, the actual facts are that he held the position and status of inspector on July 1, 1928, when the customs classification act went into effect, and thereafter until November 20, 1928, when he was transferred and appointed to the position of clerk. Therefore, under the statute and decisions above cited, from July 1 to November 19, 1928, this employee was entitled to and apparently received the salary rate of $2,100 per annum, the minimum fixed for customs inspectors, and on and after November 20, 1928, he was entitled only to the salary rate of $1,700 per annum, the minimum rate fixed for customs clerks by the controlling statute. Action in the audit will be taken accordingly. A-28057. The SECRETARY OF THE TREASURY. J. R. MCCARL, Comptroller General of the United States. WASHINGTON, October 2, 1929. SIR: Consideration has been given to your letter of September 16, 1929, as follows: 'Reference is made to letter addressed to the chief, audit division, General Accounting Office by the Acting Commissioner of Customs under date of July 1, 1929, and to your decision A-28057, dated August 28, 1929, in which it is stated that Edward T. Allen, clerk in the Customs Service at Mobile, Ala., may not be paid more than $1,700 from July 1 to November 16, 1928, and not more than $1,800 from November 17, 1928, up to and including the present time. Mr. Allen's salary was increased to $2,100 per annum on July 1, 1928, under the provisions of the Bacharach Act, giving him credit for service which was not continuous. "Mr. Allen's pay was increased to $2,100 per annum under an administrative construction of the Bacharach Act prior to the receipt of your decision of February 27, 1929, in which it is stated that service for which clerks are given credit in increasing their pay under the Bacharach Act must be continuous. The refund of the difference between $2,100 and $1,700 for the period beginning July 1, and ending November 16, 1928, and between $2,100 and $1,800 for the period beginning November 17, 1928, will work a great hardship on the employee, who did not solicit the increase in pay and was in no way responsible for the action taken by the department in accordance with its interpretation of the act. It is requested, therefore, that the payment of the salary of $2,100 from July 1, 1928, until the receipt of the decision of February 27, 1929, be allowed." The situation in this and a number of other Customs Service cases, wherein this office has been compelled to disallow payments of salaries retroactively effective, has resulted from the failure of the administrative office properly to apply the act of May 29, 1928 (45 Stat. 955), making an entirely different classification of employees for salary purposes than had previously maintained. In view of the change in the law with respect to the basis of fixing rates of compensation, the administrative office should have requested the decision of this office in advance of any payments under the new statute. This was pointed out in the decision rendered February 27, 1929 (8 Comp. Gen. 463), which you mention, wherein there was quoted from the earlier decision of June 16, 1927 (6 Comp. Gen. 826, 827), involving a change in the basis of salary payments in the Postal Service, as follows: 66* * * It may be stated in this connection that the interests of the Government and the others concerned would be best served if doubtful questions of law involving expenditures of public funds under new statutes were submitted to this office as soon as possible after the passage of the act and in advance of any expenditures thereunder." The excess payments of salary in the cases of Allen and the other employees whose compensation was thus erroneously increased are unlawful, and there is no authority in this office to relieve the payees from the necessity of refunding the same. However, as was done in the Postal Service case, involved in the decision of June 16, 1927, supra, this office will defer action in collecting the excess payments of salaries made under the administrative construction of the statute in order to afford the administrative office an opportunity, if it so desires, of presenting the matter to the Congress with a view of obtaining remedial or validating legislation. Accordingly, action in the matter of collecting the excess payments will be deferred until after June 30, 1930. Respectfully, A-24634 J. R. MCCARL, Comptroller General of the United States. WASHINGTON, July 19, 1929. The Acting Commissioner of Customs has requested review of the action of this office in not allowing credit for an item in the accounts of the collector of customs at Galveston, Tex., covering an increase in the compensation of Mrs. Julia G. Peake, clerk in the office of the customs agent in charge at Galveston, Tex., from $1,800 to $2,100 per annum, effective July 1, 1928, under the provisions of the act of May 29, 1928 (45 Stat. 955), known as the Bacharach Act, it appearing that the employee had been given credit unlawfully for service rendered in the Customs Bureau in Washington. In the decision of October 6, 1928 (A−24634), it was held that the act of May 29, 1928, supra, was limited in application to employees in the field service of the Customs Service and had no application to the departmental service in the District of Columbia. In decision of September 25, 1928 (8 Comp. Gen. 152), it was held that transfers to the classes of positions mentioned in section 1 of the act of May 29, 1928, which include clerks, from some other branch of the Customs Service should be considered as new appointments and the initial salary rate fixed at that specified in the statute for that class of positions in the case of clerks, $1,700 per annum. It follows, therefore, in fixing the salary rate of an employee in the field service under the Customs Service as of July 1, 1928, in the automatic salary rates prescribed in said statute, no credit may lawfully be allowed for service as clerk in the departmental service in the District of Columbia. Accordingly, the settlement in question is sustained. Proper adjustment should be made in the salary rate of the employee. A-24392. J. R. MCCARL, Comptroller General of the United States. COMPTROLLER GENERAL OF THE UNITED STATES, The SECRETARY OF THE TREASURY. "1. May an employee having the designation of deputy collector, storekeeper, cashier, sampler, who has a first-grade clerical civil service status, and who is receiving more than $1,700 per annum (the entrance salary for clerks under the Bacharach Act), be transferred to a position of clerk without loss of salary? The duties of deputy collectors, storekeepers, cashiers, samplers, are not wholly clerical, but are at least as difficult and responsible as those of a routine clerk who would be appointed at $1,700 and advanced to $2,100 after four years of satisfactory service. "2. If the answer is in the affirmative, would the same be true of any customs employee regardless of designation, who has a first-grade clerical civil service status, and whose salary is more than $1,700 per annum, even though the duties he is performing are not wholly clerical in nature? "3. If such employee may be transferred to a position of clerk without loss of salary, in fixing his initial pay in the position of clerk, may he be given credit for the number of years he has been employed in the Customs Service with a first-grade clerical service status, even though the duties he has been performing were not wholly clerical in nature? Typical examples of such cases would be: (a) A storekeeper receiving $1,860 per annum who has had a first-grade clerical civil-service status while employed in the Customs Service for four years; (b) A sampler receiving $2,000, who has had a first-grade clerical civil-service status while employed in the Customs Service for four years. Would such storekeeper, sampler, or other employee similarly situated, although his duties had not been wholly clerical, be entitled when appointed to a position of clerk, to a salary of $2,100, provided his services had been satisfactory? A ruling is requested also on the following question: "May a deputy collector, which is a higher position than inspector, and which position carries authority to perform the duties of an inspector, who is receiving more than $2,100 (the minimum fixed by the Bacharach Act for inspectors), be transferred to a position of inspector without loss of pay?" Under date of March 20, 1929, the Civil Service Commission, in response to a request from this office, reported as follows: "The commission is in receipt of your letter of March 14, 1929, requesting information for consideration in connection with the question as to whether employees in the Customs Service having the designation of deputy collector, storekeeper, cashier, and sampler may be considered as clerks within the meaning of the act of May 29, 1928 (45 Stat. 955). "The positions of deputy collector, storekeeper, and cashier in the Customs Service are filled by selection from the general clerical register. A copy of an announcement of such examination is inclosed herewith. Clerks in the Customs Service are also selected as a result of this examination. "The_commission has held examinations for two kinds of sampler positions in the Customs Service, namely, sugar sampler and sampler of merchandise. Except at the port of New York the former position is filled from the third-grade or subclerical register. A copy of an announcement of such examination is attached. At the port of New York sugar samplers are appointed from the general clerical register. "The position of sampler of merchandise is now also filled from the general clerical register. Prior to 1909 vacancies in such positions were filled from the second-grade register except at the port of New York, where appointments have been made from the general clerical register since 1904. "Answering your second question, it may be stated that no examination is required for transfer from clerk to deputy collector, storekeeper, cashier, sampler of merchandise, or sugar sampler in the Customs Service at New York City because these positions have been filled from the same register, namely, the first grade or general clerical register. Hence, transfer from any one to another of the positions mentioned in the preceding sentence is permissible without further examination. "A transfer from sugar sampler (except at New York City) to deputy collector, storekeeper, cashier, or sampler of merchandise, would, in effect, mean a change in status from third grade or subclerical to first grade or clerical. Before such transfer would be allowed the employee concerned would be required to pass, noncompetitively, the first grade or general clerical examination." Under date of June 29, 1929, you furnished at the request of this office dated March 14, 1929, a detailed description of the duties of deputy collector, storekeeper, cashier, sampler, and inspector, and answered specific inquiries, as follows: "(2) Whether the administrative office considers that the paramount duties of any or all of the positions having the above-mentioned designations are clerical in nature. "As will be noted from the descriptions of work, each of the classes named above perform a considerable portion of clerical work. Deputy collectors are appointed to positions which are in most instances supervisory in nature, but in connection therewith, in the majority of cases, much clerical work must be done. They must have a civil service clerical status and, as indicated above, usually have been engaged previously in various types of customs clerical work, from which they are promoted to the position of deputy collector. Storekeepers are appointed for the purpose of having charge of bonded warehouses, to see that the customs regulations are enforced in their operation. An essential part of their work, amounting to approximately 75 per cent, is clerical. Cashiers are appointed for the purpose of receiving and carrying responsibility for moneys paid to the Customs Service. A large and essential part of this work is clerical in nature and, as pointed out, the position usually is filled by the promotion of |