31, 1922, of his claim for additional compensation as a letter carrier in the Wollaston branch of the Boston, Mass., post office.

Claimant contends that he should have been promoted to and paid as carrier of grade five at $1,800 per annum from January 1, 1921, whereas it was held in the settlement of January 31, 1922, that he was not entitled to advancement to grade five until July 1, 1921. It appears from the records that claimant was appointed regular carrier December 5, 1920, at $1,700 per annum and that prior thereto he had served 8,385 hours as a substitute carrier and that he had been in the military service from August 15, 1918, to January 10, 1919. The question presented involves the allowance of credit on account of such substitute and military service under the provisions of the act of June 5, 1920, 41 Stat., 1049, as amended by the act of March 1, 1921, 41 Stat., 1151, which reads:

That clerks in first and second-class post offices and letter carriers in the City Delivery Service shall be divided into five grades as follows: First gradesalary, $1,400; second grade salary, $1,500; third grade-salary, $1,600; fourth grade salary, $1,700; fifth grade salary, $1,800: Provided, That in the readjustment of grades for clerks at first and second class post offices and letter carriers in the City Delivery Service to conform to the grades herein provided, grade 1 shall include present grade 1, grade 2 shall include present grade 2, grade 3 shall include present grade 3, grade 4 shall include present grade 4, and grade 5 shall include present grades 5 and 6: Provided further, That hereafter substitute clerks in first and second class post offices and substitute letter carriers in the City Delivery Service when appointed regular clerk or carriers shall have credit for actual time served on a basis of one year for each three hundred and six days of eight hours served as substitute, and appointed to the grade to which such clerk or carrier would have progressed had his original appointment as substitute been to grade one: Provided, That Postal employees and substitute Postal employees who served in the military, marine or naval service of the United States during the World War and have not reached the maximum grade of salary shall receive credit for all time served in the military, marine, or naval service on the basis of one day's credit of eight hours in the Postal Service for each day served in the military, marine or naval service and be promoted to the grade to which such postal employee or substitute postal employee would have progressed had his original appointment as substitute been to grade one: And provided further, That clerks in first and second class post offices and letter carriers in the City Delivery Service shall be promoted successively after one year's satisfactory service in each grade to the next higher grade until they reach the fifth grade. All promotions shall be made at the beginning of the quarter following one year's satisfactory service in the grade.

It will be noted that the law just quoted provides that the employee shall receive credit for all time served in the military service on the basis of one day's credit of eight hours in the Postal Service for each day served in the military service. Therefore, in order to determine the equivalent in Postal Service of the time served in the military service it is necessary to determine first the actual number of days served in the military service. The actual number of days from August 15, 1918, to January 10, 1919, both dates inclusive, is 149 days. As the law provides for a credit of eight hours in the Postal Service for each day of military service he would be entitled to a credit of 1,192 hours for his 149 days of military service, which, added to the substi

tute service makes a total of 9,577 hours. Under the law credit for this number of hours is to be allowed on the basis of 8 hours to the day, and 306 days to the year. Making the conversion on this basis it is found that 9,577 hours is the equivalent of 1,197 days, and that 1,197 days is the equivalent to 3378 calendar years. The equivalent in calendar days of the fraction 37 calendar years is 333 calendar days. Therefore, the total credit to be allowed on a calendar basis is 3 years and 333 days.

The provision of law with reference to appointment and promotion based on credit for substitute service and military service is that the appointment or promotion shall be to the grade to which the employee "would have progressed had his original appointment as substitute been to grade one." In other words, the law does not authorize that the time served as a substitute or in the military service be counted as though served after the date of actual appointment as regular and that the employee be promoted to the grade he would reach after serving said period subsequent to the date of actual appointment as regular; it authorizes that the appointment or promotion be to the grade the employee would have progressed if he had been originally appointed to grade one and had served the time for which he is entitled to credit between the date of such original appointment and the date of his actual appointment as regular. Therefore, in order to determine the grade to which the employee would have progressed had his original appointment as substitute been to grade one it is necessary to begin from the date of actual appointment as regular and count back the number of calendar years and days for which credit is allowable on account of substitute service and military service and this will give the assumed date of original appointment as substitute which, under the law, is to form the basis for determining the grade to which the employee would have progressed at the date of his actual appointment as regular. This, of course, is tantamount to a theoretical antedating of the actual appointment as regular. See decision of March 1, 1922, 1 Comp. Gen., 463, construing a similar provision in another law.

In the case here presented counting back three years and 333 days from December 5, 1920, gives January 6, 1917, as the assumed date of original appointment to grade one. Had claimant been appointed to grade one, or the lowest grade, the salary of which was $800 per annum, on January 6, 1917, and served continuously since said date, he would have been promoted automatically to $900 April 1, 1918, and would have been holding such grade on June 30, 1918. Under the provisions of section 2 of the act of July 2, 1918. 40 Stat., 751, all clerks and carriers who were in the $900 grade on June 30, 1918, regardless of the length of time they may have been in said grade, automatically passed to the new second grade the salary of which

was $1,100 per annum. Under the provisions of the act of February 28, 1919, 40 Stat., 1198, the next automatic promotion would. be to grade three at $1,200 on July 1, 1919, then to grade four on July 1, 1920, the salary of which, under the act of June 5, 1920, 41 Stat., 1049, was $1,700. This was the salary and grade to which claimant "would have progressed" and to which, under the law hereinbefore quoted, he was entitled to be appointed on December 5, 1920, and he was not entitled under the law to advancement to grade five at $1,800 until after one year from July 1, 1920, or on July 1, 1921. This was the basis on which the settlement of the claim was stated and which resulted in disallowing the claim.

Upon a review of the matter no differences are found and the settlement of January 31, 1922, is sustained.

RELIEF OF AMERICAN SEAMEN.

An alien shipped on an American vessel in a foreign port and discharged in a foreign port because of illness or injury incapacitating him for service is not such an American seaman as is entitled to relief under paragraph 260 of the Consular regulations, but such seamen may be furnished temporary relief and protection within the discretion of the Secretary of State from the annual appropriations for the relief and protection of American seamen in foreign countries.

Comptroller General McCarl to the Secretary of State, April 22, 1922:

I have your letter of April 7 requesting decision whether "aliens shipped on American vessels in foreign ports and discharged in foreign ports because of illness or injury incapacitating them for service are entitled to relief under the same conditions and circumstances as American seamen as defined by paragraph 260 of the Consular Regulations."

Paragraph 260 of the Consular Regulations reads:

Seamen entitled to relief.-Seamen of the United States entitled to relief when destitute are:

1. Merchant seamen, being citizens of the United States, or persons coming under the provisions of section 2174 of the Revised Statutes, and who, at the time of applying for relief, are by habit and intent bona fide members of the American merchant marine, although their last service may not have been in an American vessel.

2. Foreigners regularly shipped in an American vessel in a port of the United States.

Section 2174, Revised Statutes, referred to in the paragraph just quoted, provides that under certain circumstances a seaman who is an alien shall be entitled to protection as an American citizen after the filing of his declaration of intention to become such citizen.

It is clear that an alien who ships on an American vessel in a foreign port and who is discharged in a foreign port does not come within either of the classes of seamen referred to in paragraph 260 of the Consular Regulations as entitled to relief and it has been held that such seamen are not entitled to transportation at the expense of the United States under the provisions of section 4581, Revised.

Statutes, as amended by the act of December 21, 1898, 30 Stat., 759. See 27 Comp. Dec., 617.

I agree with the conclusion announced in the decision cited and therefore it must be held that the law does not require that an alien shipped on an American vessel in a foreign port and discharged in a foreign port on account of illness or injury be furnished the same relief as is provided by law for seamen of the classes defined in paragraph 260 of the Consular Regulations. But since all seamen on American vessels may be regarded as American seamen for certain purposes an alien who ships on an American vessel in a foreign port and is discharged in a foreign port on account of illness or injury may be furnished such temporary relief and protection as you may deem necessary and proper under authority of the annual appropriation made for the relief and protection of American seamen in foreign countries. See provision in the act of March 2, 1921, 41 Stat., 1216, for the fiscal year 1922.

STATE TAX OR LICENSE FEE.

A State law requiring dealers to pay a specified tax per gallon on all sales of gasoline for the privilege of doing business within the State imposes a tax on the dealer and not on the consumer, and sales to the Federal Government are not exempt therefrom. 1 Comp. Gen., 229, distinguished.

Comptroller General McCarl to the Postmaster General, April 22, 1922:

I have your letter of April 3, 1922, requesting decision of a question therein presented, as follows:

It has been brought to the attention of this Department that the State of South Carolina has imposed a tax on gasoline consumed in that State in the following language, which is quoted from the Act approved by the Governor on February 23, 1922:

"That every oil company doing domestic or intrastate business within the State and engaging in the business of selling, consigning, using, shipping, or distributing for purpose of sale within this State any gasoline or any substitute therefor, or combination thereof, for the privilege of carrying on such business shall be subject to the payment of a license tax, which tax shall be measured by and graduated in accordance with the volume of sales of such oil company within the State. Every such oil company shall pay to the State Treasurer an amount of money equal to two (2) cents per gallon on all gasoline, combinations thereof or substitutes therefor, sold or consigned, used, shipped or distributed for the purpose of sale within this State."

The State has raised the point that this tax is a license fee on the dealer and not a tax on the consumer, and for that reason it has notified the Charleston Oil Company, of Charleston, South Carolina, that it will be required to pay a license fee of 2¢ a gallon on all sales, whether to the Federal Government or to a private consumer. The effect of this Act will be to increase the price of gasoline 2¢ a gallon in the State of South Carolina, as the above-mentioned company quotes two different prices, depending on whether the Federal Government is required to pay a 2¢ additional license fee required of it by the State. A ruling as to whether this fee can properly be paid by the Federal Government is requested.

It is well settled that a State may not impose a tax on Government property or any of its instrumentalities or agencies. It is also well

recognized that a State, subject to that rule and except where restrained by provisions of its own constitution, is subject to no control or interference from any source in the exercise of its governmental powers, among which is the right of taxing the property or the business and occupation of its citizens and others within its jurisdiction or reach. The title of the act in question reads

AN ACT

To Impose a License Tax Upon the Business of Dealing in Gasoline, Combinations thereof, and Substitutes therefor, When Sold in This State.

It appears that the contention of the State is that the act imposes no tax in the ordinary sense of that term, but lays a tax on oil companies doing business within the State. There is a recognized distinction between the two, but it is not necessary to decide that point in this case, the question being, does the act contravene any right or prerogative of the Government? I think it does not. The act describes the imposition as a "license tax" which is measured by an amount of money equal to two cents per gallon on the quantity sold. I think it clear that the tax, license tax or fee, whichever it may be, is placed on the dealer and not on the purchaser, be the purchaser the Government or an individual. The right of a dealer to fix the price of the gasoline it sells must be admitted, and how the price is constituted or arrived at is not material. 25 Comp. Dec., 862. This case is clearly distinguishable from 1 Comp. Gen., 229. In that case the tax was clearly placed on the purchaser of the oil and therefore could not be exacted of the Government.

NATIONAL GUARD-DRILL PAY FOR MEMBERS OF NONCOMMISSIONED OFFICERS' SCHOOL.

The assembly of noncommissioned officers of the National Guard for instruction independently of their companies is not attendance at drills ordered for their organizations or companies and does not entitle such officers to pay as for attendance at drills.

Decision by Comptroller General McCarl, April 24, 1922:

The Chief of the War Department Division has submitted a memorandum decision construing section 92 and the first paragraph of section 110 of the National Defense Act, 39 Stat., 206, and 41 Stat., 784, in connection with payments made to certain of the noncommissioned officers of Company B, Fourth Infantry, Kansas National Guard, for the semiannual period ended June 30, 1921, on voucher 437, August, 1921, accounts of Maj. E. F. Ely, F. D., U. S. Army, for attendance at noncommissioned officers' school in addition to the drills prescribed for the organization as a whole.