The Washington times., 1901-10-17
NO PAY FOR IDLE DAYS.
The Treasury Comptroller Decides


Adversely Request.
Upon the request of the Secretary OF
War. whose attention was called to the
matter by the Chief OF Engineers U. s.
a. and by Capt J. S. Bell. Corps of Engi-
neers, who is in charge OF the construc-
tion of the new Government Printing OF
flee. the Comptroller of the Treasury has
rendered decision on the question OF
whether or not day laborers employed at
the new building for the Government
Printing Office should be paid for the
three days. September Il. Is. 49, when all
labor was suspended on account of the
obsequies over the remains OF the late
President of the United States.
In deciding the points involved in the
question, Mr.. Tracewell referred to the
ioint resolution approved Januarya6. 1855.
and OF June %. 1894. and said
1T has been held that these statutes
apply only to those employees who. al
though receiving per diem compensation,
are permanently or continuously employ
ed whenever their services can be utilized.
and not TO such as are hired for tempo
rary service for few days at time.
the service Of the latter class being mere
ly incidental to their main employment
elsewhere a Comp. Dec, f99). Lieut. Sew
eli designates the men whose pay Is in
question as day laborers,' but as he
states that th==- are continuously en-
ployed and that they are paid on the hol-
days above named. II is assumed that
these men are per diem employees with
in the meaning Of the above statutes, and
that under the law they are entitled to
pay for the holidays named.
The direct question asked by Lieu.en-
ant Sewei is whether the Presidents or
der OF September II. Is. and 10. 1901. made
those days legal holidays in the same
sense as the holidays nasued-i. e.,
brought them within the provisions of the
foregoing acts authorizing per diem en-
plOyes to receive the same pay for these
holidays on other lays. To this there
can be but one answer When an act OF
Congress specifically names certain days
on which certain thing may be done,
no other days than those named can be
presumed to have been intended, and. in
deed. all other days must, by implication.
be excluded. This is a primary rule of
construction, and Is expressed by the Ie-
gal maxim: 'Expressio unius est exclusio
alterius.' The provisions of the acts
above named cannot be extended to any
days not named therein.
Il apprehend, however, that the ques-
ton which is really INVOLVE. and to which
an answer is sought is. Are per diem
employees entitled 10 pay on days when
ing OF the departments and the suspension
of public work by executive order?
In the absence of any .ew on the sub
ject the compensation of per diem en-
ployes is regulated by the terms of the
contract made with them, and in the alb
sence Of any agreements made with them
they are. as general rule. TO be paid only
for services actually rendered. In the
case of employees in the public service,
their employment and compensation are
in some cases directly fixed by law. and
all contracts with them, either expressed
or implied. must be in conformity TO that
law. In other cases while their employ
ment and compensation are not directly
fixed by law, they are none the less regu-
lated and governed by tie viii Of Con-
gress as expressed in general statutes re-
lating to employment in the public ser
vice, which the executive and accounting
offlcers are bound to obey.
What then, is the Will of Congress, as
expressed by legislation, In regard to the
compensation OF per diem employer
Section 3s4s OF the Revised Statutes
provides that in all cases of contracts
for the performance of any service pay
ment shall not exceed the value of the
service rendered previously to such pay
ed would, therefore, unless otherwise au-
thoriZed by law, be a gratuity and ille-
gal. The acts above noted, however. pro-
vide that per diem employees shall be paid
on certain specified days on which they
perform no service, as on other days.
THE other days can only mean the
Gays on WHICH lHsy 10 service,
thus clearly distinguishing between the
days for which they are paid on account
of their services and the days for which
they are paid only by virtue of the acts.
When, therefore, Congress by express
statute authorizes payment to per diem
employees on certain holidays specifically
named. 1t by necessary implication for
bids payment on other holidays, or days
when no service is rendered II there
were any rights to payment growing out
of the closing of the departments on ac-
count OF the holidays named or on any
other days which were recognized by
Congress, there was no necessity for the
laws authorizing payment.
For the reasons given above I am
forced to the conclusion that there is no
authority of law to pay per diem EN-
ployes for days on which the departments
are closed and public work suspended by
executive order. and hence l must hold
that the day labOrers engaged in the con-
struction of the new building for the
Government Printing Office cannot be
paid for September II. IS. and 10, 1901.
unless they actually rendered service on
those days"