The Washington times., 1902-02-09
CRIERS COMPLAIN
OF BEING DOCKBD.
Object to Being Termed Per
Diem Employees.
Comptroller Contends That Order 10
Close Executive Departments Did
Not Cover Their Case.

The four criers in the Supreme Court
of the District, according to information.
seem to be ignorant of the real cause of
the decision of Mr.. Tracewell, the Comp
troller of the Treasury. in which he up
| held the opinion of the Auditor of the
State and other depar tments. and in which
the latter disallowed the claim for pay
of the court criers for September II
and 19.
These latter dates were two of the three
days on which the executive departments
OF the Government were closed by an ex-
ecutive order of the President out of re-
spect to the memory OF the late President
Mckinley.
Cricrs' Claim DisniIowed.
The claim for pay by the court criers
was disalloNed by the Auditor, first, be-
cause the courts were not in session on
the above mentioned dates; second, un-
der the decisions of the Comptroller in
re the Secretary of War and the Public
Printer, dated, respectively, October II
and %, 1901, and, third. upon the rec
ommendation of the Attorney General
who referred to the decisions above men
toned, the assumption being that criers
OF courts are per diem employees.
The first question TO be determined
is" said Mr.. Tracewell in his decision.
''are criers of courts Per diem employees
Of the Government, so as to come within
the meaning of the statutes relating to
holidays, legal OF otherwise?
Employed by the Day.
"on that point, which was very ex-
haustiyely considered by me in Comp,
Dec, 219 and 225. / stated, among other
things. as definitions proper TO be OBJ
served that:
"A per diem employe is one who is
employed by the day. and paid a certain
sum for a days wages. One who is not
employed by the day. but whose pay is
measured by the day, is not a per diem
employe.' This right of such person TO
employment for a stated period longer
than day, even if the period be uncer
tain in duration. prevents such employees
from being considered or treated as per
diem employees, and, on page 219, quot
ing from the syllabus, it is held that:
days on which the departments are closed
and public work suspended by Executive
order is not authorized unless they ac-
tually render service on those days
Under said decisions it would seem
that bailiffs and criers of courts are not
per diem employees. because they are not
appointed by the day. but. as / am re-
liably informed. they are appointed for
an indefinite time, usually during the term
of court.
COmpi roller Expresses Doubt.
Upon this question the late Comp
troller expressed doubt as to whether
bailiffs and criers of courts were such
per diem employees of the Government
but, if they were, they would be entitled
to pay for those days which were me.l-
toned as holidays by the statute, and
that therefore under the law no distinc-
tion should be made between a court en-
ploye who is paid per diem ccmpensa-
tion for the days he works and other en-
ployes OF the Government similarly sit
uated
"Criers of courts not being such per
diem employees, there would seem to be no
reason why they should not be paid for
the days in question, but for one thing.
viz: the Executive order referred to di-
rected that the executive departments
in Washington be closed September II. IS,
and 10. 1901"
Applies to Executive Departments
1T does not and is not intended to, ap-
ply to any other than executive depart
ments. United States court is not
part of the Executive Department OF the
Government This is elementary.
1T is also to be noted. notwlthstand-
ing the said Executive order, that as a
matter of fact. the courts in question did
not observe September 49, 1901. as hol
day. but convened on that day as usual
and transacted business.
Such being the case. the cTiers not
being per diem employees, and the Execu-
tive order not applying to courts and
their officers, the only question to be con-
sidered is that suggested by the Audi
tors disallowance. that on the days in
question. said courts were not in session
we are then confronted with the laws
affecting the compensation of bailins and
criers for attendan<. on courts on days
when courts are closed or judges are
absent.
Rule Now Observed.
'Jhc RUE now observed III t!l!5 once Is
that founded on section 10, Revised Stat
utes, and the provision in every sundry
civil appropriation act since 1895, and for
this year is found in 81 Statutes. 1883.
Section 7l5. Revised Statutes, provides
for the appointment of criers by the
courts and baililfs. TO be allowed the sum
of 81 per day for their actual attendance.
In the appropriation act, it is provided:
That all persons employed under sec
tion 7lj of the Revised Statutes shall be
deemed to be in actual attendance. when
they attend upon the order Of the courts.
That no such person shall be en-
ployed during vacation
THE said criers did not attend upon
any such order as is contemplated by the
statutes last cited. as frequently con-
strued by me.
1T seems to be clear, therefore, that
under the law. and the decisions of this
office, and for the reasons above indicated,
the criers In question are not en-
titled TO any per diems for attendance
in court on the two days in question. and
the disallowance by the Auditor is ac-
ftK.a la tn. K..adF