« ForrigeFortsett »
ment, and also a copy of a letter from the Clerk of the Court, urging that pay. ment be made for the period of actual service after the death of Justice Gould, pending the induction into office of Justice Hoehling.
It is shown to have been the practice of the court to appoint the stenographers thus appropriated for as stenographers of the court generally without mention of the justice to whom they may be assigned. This practice is warranted by the terms of the appropriation. Having been appointed by the court a stenographer of the court, Miss Kroll continued to hold that position, notwithstanding the death of the justice to whom she was assigned, until her tenure thereof was ended by the appointment of her official successor.
REGULATIONS_RANK AND PAY OF COAST AND GEODETIC SURVEY
The regulations for the government of the Coast and Geodetic Survey, pro
bibiting the reduction in grade of any commissioned officer in that bureau except after due investigation by a board of commissioned officers, etc., while issued with the approval of the Secretary of Commerce, are not based upon any specific statutory authority, and may therefore be waived or disregarded by the head of that department at his discretion.
Decision by Comptroller General McCarl, July 12, 1921:
D. B. Wainwright, hydrographic and geodetic engineer, United States Coast and Geodetic Survey, applied June 9, 1921, for revision of the action of the Auditor for the State and Other Departments in disallowing by settlement 26439, dated June 6, 1921, claim for difference between the pay and allowances of a commander, relative Navy rank, and the pay and allowances of a lieutenant commander, relative Navy rank, for the period May 18 to October 31, 1920.
It appears that on July 15, 1916, appellant was appointed an “ assistant” in the Coast and Geodetic Survey at a salary of $3,000 per annum; that on June 30, 1917, while still serving under that appointment he was commissioned hydrographic and geodetic engineer in the Coast and Geodetic Survey under authority of the act of May 22, 1917, 40 Stat., 88, with the same salary which gave him the relative rank of commander in the Navy; that on June 28, 1919, the Secretary of Commerce made a change in appellant's salary, reducing same from $3,000 to $2,800 per annum, which was appellant's rate of salary when the act of May 18, 1920, 41 Stat., 603, was passed assimilating the pay and allowances of commissioned officers of the Coast and Geodetic Survey to that of officers of the Navy with whom they hold relative rank as provided in the act of May 22, 1917.
The act of May 22, 1917, 40 Stat., 88, provides: “Hydrographic and Geodetic engineers receiving $2,500 or more but less than $3,000 shall rank with and after majors in the Army and lieutenant commanders in the Navy."
Appellant's relative rank when the act of May 18, 1920, became effective was that of lieutenant commander. He contends, how. ever, that the Secretary's action in changing his salary from $3,000 to $2,800 was in violation of article 76 of regulations for the government of the Coast and Geodetic Survey and therefore was ineffective to change his grade or relative rank.
Article 76 provides that:
* * * No commissioned officers shall be dismissed from the service or reduced in grade, without due investigation by a board of commissioned officers of the survey ordered by the President of the United States or the Secretary of Commerce on the recommendation of the Superintendent * * *.
It appears that the Secretary's action in reducing appellant's salary, and consequently his grade, was made without any reference to an investigating board as required by the regulations, and the question is whether the Secretary's action in thus ignoring or waiving the requirement of the regulations is valid as affecting appellant's grade or relative rank.
The power to make regulations implies the power to alter, amend, modify, or revoke the same, but it does not always imply the power to waive or ignore the regulation in a specific case. A regulation made pursuant to general authority resting in the head of a department to make regulations to govern its agents in the distribution and performance of the department's activities can be waived by the head of the department in any particular case so long as the waiver thereof does not violate a specific provision of the law. But a regulation made by specific authority of a statute and pursuant to and in execution thereof is supplementary to the law and of equal force therewith. Such a regulation may be amended or modified, but so long as it remains a regulation it has all the force and effect of law and can not be waived or ignored in a specific case. 21 Comp. Dec., 482.
Since the regulation in question does not seem to have been made pursuant to a specific provision of law and was not necessary to the execution of any particular statute, I am of opinion that the Secretary's action in reducing appellant's salary without reference to a board of investigation as provided by regulation was within his authority and that such action gave to appellant the relative rank of a lieutenant commander in the Navy
Accordingly, the action of the auditor is affirmed.
OFFICERS AND EMPLOYEES—HOLDING TWO POSITIONS.
The act of May 10, 1916, 39 Stat., 120, prohibiting the use of any appropriation
for payment to the same person of more than one salary from the Government when the combined amount exceeds the sum of $2,000 per annum, is applicable to the funds of the United States Shipping Board Emergency Fleet Corporation; hence an employee of the corporation may not also receive compensation from the United States Shipping Board when the combined compensation is more than $2,000 per annum.
Decision by Comptroller General McCarl, July 13, 1921:
W. L. Soleau applied June 25, 1921, for a revision of the action of the Auditor for the State and Other Departments in disallowing, by settlement No. 10655, dated March 25, 1921, credit for certain payments aggregating $5,269.35 made by him as disbursing officer of the United States Shipping Board to officers or employees of said board for the period from January 1, 1919, to May 31, 1919.
The officers or employees to whom the payments in question were made and the aggregate amount of the disallowance in the case of each are as follows: W. L. Soleau---------
$1,666. 66 Miles M. Dawson---
1,562.50 Sherman L. Whipple
1,041.66 I. P. Henderson.
761. 23 E. J. Skidmore-----
177.30 John J. Converse------
60.00 It appears that during the period covered by these payments each of the persons mentioned was holding two separate and distinct offices or positions, one under the United States Shipping Board and the other under the United States Shipping Board Emergency Fleet Corporation; that the combined salaries of the two offices or positions held by each exceeded $2,000 per annum; and that the amount disallowed in each case is the amount paid by the Shipping Board to the extent that said amount, together with the amount of the salary of the office or position held under the Emergency Fleet Corporation, exceeded $2,000 per annum.
The auditor's disallowance was based upon the provision of section fi of the act of May 10, 1916, 39 Stat., 120, which reads:
That unless otherwise specially authorized by law no money appropriated by this or any other Act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum.
That each of the persons hereinbefore mentioned was “receiving more than one salary” and that the combined amount of the salaries received by each“ exceeds the sum of $2,000 per annum ” there would appear to be no room for doubt, and these facts were known to the appellant at the time the payments were made.
In his request for revision of the auditor's action appellant argues at some length to the effect that the United States Shipping Board Emergency Fleet Corporation is not a Government establishment or organization, and that the funds used to pay the persons hereinbefore named for their services as officers or employees of said corporation were not moneys appropriated by Congress. These arguments might be entitled to some consideration if the payments now in question had been made by the Emergency Fleet Corporation, but
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they were made by the disbursing officer of the United States Shipping Board from moneys appropriated by Congress for salaries and expenses of said board. Furthermore, it has been held by the Comptroller of the Treasury that the United States Shipping Board Emergency Fleet Corporation is a Government establishment or organization within the purview of different statutes. 25 Comp. Dec., 701; 26 id., 897; 27 id., 140 and 311. And in a decision dated January 22, 1919, to the acting chairman of the United States Shipping Board it was held that section 6 of the act of May 10, 1916, was applicable to cases identical with those now under consideration. Most of the payments involved in this case were made after the date said decision was rendered, but appellant contends that he had no knowledge of said decision and submits affidavits to the effect that said decision was not brought to the attention of the disbursing office of the United States Shipping Board until after his separation from said office in June, 1919. The question whether the disbursing office did or did not have knowledge of the decision of January 22, 1919, is not material for the reason that the payments for which credit has been disallowed were made in contravention of the plain provisions of the statute. The decision of January 22, 1919, did not change or modify any construction theretofore placed by the accounting officers upon the statutes. It merely announced what the effect of said statute had been since its enactment.
The action of the auditor is affirmed.
TRAVEL ALLOWANCE ON DISCHARGE-NAVY, ENLISTED MEN.
March 3, 1921, having been fixed as the termination of the war emergency by
joint resolution of March 3, 1921, 41 Stat., 1359, enlisted men of the Navy discharged from enlistments entered into on or after that date are not affected by the war-time provisions of the act of July 11, 1919, 41 Stat., 139, relative to travel allowance on discharge before expiration of their enlistments during demobilization, but their right to travel allowance on discharge is controlled by the act of February 28, 1919, 40 Stat., 1203, under the provisions of which enlisted men honorably discharged for their own interest and convenience before expiration of their enlistments are not entitled to
the travel allowance thereby authorized. Comptroller General McCarl to the Secretary of the Navy, July 14, 1921:
I have your letter of June 27, 1921, requesting decision, as follows: The act of 28 February, 1919, 40 Stat., 1203, provides :
“ SEC. 3. That Section one hundred and twenty-six of the Act entitled 'An Act for making further and more effectual provision for the national defense, and for other purposes,' approved June third, nineteen hundred and sixteen, be amended to read as follows:
“ SEC. 126. That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option : Provided, That for sea travel on discharge, transportation and subsistence only shall be furnished to enlisted men : Provided. That naval reservists duly enrolled who have been honorably released from active service since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably released from active service, shall be entitled likewise to receive mileage as aforesaid."
The act of 11 July, 1919, 41 Stat., 139, provides :
"All enlisted men of the Navy and Coast Guard who have served in the war with the German Government and who may hereafter be discharged or who have been discharged from the service since November 11, 1918, and before the expiration of their full enlistment shall receive, under such rules and regulations as the Secretary of the Navy may prescribe, an honorable discharge and shall receive 5 cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service at his option : Provided, That for sea travel on discharge, transportation and subsistence only shall be furnished to enlisted men: Provided, That the records of such men warrant such honorable discharge.”
Joint Resolution approved 3 March, 1921, 41 Stat., 1360, provides :
“ And any Act of Congress, or any provision of any such Act, that by Its terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shall be construed and administered as if such war between the Governments and people aforesaid terminated on the date when this resolution becomes effective, any provision of such law to the contrary notwithstanding; *
In view of the fact that enlisted men of the Navy who first enlisted on or after 3 March, 1921, will not have served in the Navy during the war with the German Government, your decision is requested as to whether or not, such men who may be discharged under honorable conditions prior to the expiration of their enlistments are entitled to travel allowance authorized in the Act of 28 February, 1919.
The Supreme Court, in United States v. Sweet, 189 U. S., 471, held that a soldier discharged at his own request and for his own pleasure or convenience was not entitled to travel pay and commutation of subsistence provided in section 1290, Revised Statutes, as amended by the act of February 27, 1877, 19 Stat., 243, 244. The language of that act—“when discharged from the service, except by way of punishment for an offense "—is identical with the language of the act of June 3, 1916, 39 Stat., 217, which provided travel allowance to discharged soldiers. The act of February 28, 1919, amending the act of June 3, 1916, changed the term “when discharged from the service, except by way of punishment for an offense,” to “honorably discharged.” The court's construction in the decision cited above was in accord with a long-continued construction of the War Department, the agency charged with the execution of the statute. In deci. sion of the Comptroller of the Treasury that construction was applied to the act of March 2, 1901, 31 Stat., 902, which authorized travel allowance to soldiers “when discharged from the service, except by way of punishment for an offense.” See 13 Comp. Dec., 686.
It is apparent, therefore, that under the several acts authorizing travel allowance to discharged soldiers prior to February 28, 1919, a soldier discharged before expiration of his enlistment and for his own convenience was not entitled to travel allowance. Though, as stated above, the act of February 28, 1919, has substituted the term " honorably discharged” for the former term “ discharged, except by way of punishment for an offense,” I am of opinion that such