A-16263, MARCH 17, 1927, 6 COMP. GEN. 588

A-16263, MARCH 17, 1927, 6 COMP. GEN. 588

COMPENSATION - QUARTERS IN KIND - NAVAL ESTABLISHMENT SECTION 3 OF THE ACT OF MARCH 2, 1926, 44 STAT. 161, AND SECTION 3 OF THE ACT OF JANUARY 26, 1927, 44 STAT. 1052, REQUIRING THE VALUE OF QUARTERS AND OTHER ALLOWANCES FURNISHED IN KIND TO CIVIL EMPLOYEES IN THE FIELD TO BE DETERMINED AND CONSIDERED AS A PART OF COMPENSATION, ARE APPLICABLE TO ALL CIVIL EMPLOYEES IN THE NAVAL ESTABLISHMENT. THE ACT OF JULY 16, 1862, 12 STAT. 587, REQUIRING THE RATES OF WAGES OF NAVY-YARD EMPLOYEES TO CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE OF PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY, DOES NOT AUTHORIZE DISREGARDING OTHER STATUTORY PROVISIONS CLEARLY APPLICABLE TO THE PAYMENT OF COMPENSATION OF CIVIL EMPLOYEES, SUCH AS STATUTORY LIMITATIONS OR RESTRICTIONS UPON PAYMENT OF EXTRA COMPENSATION OR FOR TWO POSITIONS HELD BY ONE PERSON, OR REQUIRING THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND TO BE CONSIDERED AS A PART OF THE TOTAL RATE OF COMPENSATION FIXED FOR A POSITION. WHERE THERE IS A PLAIN CONFLICT BETWEEN A REGULATION AND A STATUTE THE REGULATION MUST GIVE WAY TO THE STATUTE. TO THE EXTENT THAT THE WAGE SCHEDULE AND NOTE GOVERNING PAYMENT OF WAGES OF CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT PURPORT TO PERMIT AN EMPLOYEE TO RECEIVE COMPENSATION FOR TWO POSITIONS OR TO RECEIVE COMPENSATION FOR EXTRA SERVICES, EITHER IN CASH OR IN THE FORM OF ALLOWANCES FURNISHED IN KIND, IN ADDITION TO THE COMPENSATION FIXED BY LAW OR REGULATION FOR HIS REGULAR POSITION, IN CONTRAVENTION OF PLAIN STATUTORY PROVISIONS, SAID SCHEDULE AND NOTE ARE ILLEGAL AND OF NO FORCE OR EFFECT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MARCH 17, 1927:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 4, 1927, REQUESTING RECONSIDERATION OF DECISION OF NOVEMBER 20, 1926, 6 COMP. GEN. 359, HOLDING THAT MESSRS. WALTER W. FARNUM, CHIEF CHEMIST, AND GEORGE W. PATTERSON, POWDER EXPERT, CIVIL EMPLOYEES OF THE NAVAL POWDER FACTORY, INDIANHEAD, MD., ARE NOT ENTITLED TO QUARTERS IN KIND FREE OF CHARGE AS COMPENSATION FOR DUTIES PERFORMED OUTSIDE REGULAR WORKING HOURS IN ADDITION TO THE FIXED RATE OF COMPENSATION SPECIFIED IN THE SCHEDULE OF WAGES FOR THEIR REGULAR DAYTIME POSITIONS.

THE DECISION WAS INTENDED TO APPLY, AND YOU HAVE CONSIDERED IT AS APPLYING, GENERALLY TO CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT. THIS BASIS YOU DISCUSS THE DECISION IN DETAIL AND SUBMIT AN ABLE AND EXTENSIVE BRIEF OR ARGUMENT IN SUPPORT OF YOUR VIEW TO THE EFFECT THAT THE PRACTICE THAT HAS EXISTED FOR MANY YEARS IN THE MATTER OF FURNISHING QUARTERS AND OTHER ALLOWANCES IN KIND TO SUCH EMPLOYEES IS LEGAL AND PROPER.

BRIEFLY STATED, YOUR PRINCIPAL CONTENTIONS, IN SO FAR AS THE LEGAL ASPECTS OF THE CASE ARE CONCERNED, ARE UNDERSTOOD TO BE (1) THAT THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1926, 44 STAT. 161, HAVE NO APPLICATION TO CIVIL EMPLOYEES IN THE NAVAL ESTABLISHMENT AND (2) THAT UNDER A PROVISION IN THE ACT OF JULY 16, 1862, 12 STAT. 587, HEREINAFTER QUOTED, THE SECRETARY OF THE NAVY IS AUTHORIZED TO FIX THE COMPENSATION AND ALLOWANCES OF SUCH EMPLOYEES REGARDLESS OF THE PROVISIONS OF ANY OTHER STATUTE. I CAN NOT AGREE WITH EITHER OF THESE TWO PROPOSITIONS.

SECTION 3 OF THE ACT OF MARCH 2, 1926, PROVIDES:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1927 OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

THIS PROVISION HAS BEEN REENACTED FOR THE FISCAL YEAR 1928 AS SECTION 3 OF THE ACT OF JANUARY 26, 1927, 44 STAT. 1052.

THE BASIS OF THE PRIOR DECISION WAS THIS STATUTORY PROVISION. YOU CONTEND, FIRST, THAT IT IS TEMPORARY, AND, SECOND, THAT IT HAS APPLICATION ONLY TO FIELD SERVICES WHEREIN THE COMPENSATION IS FIXED UNDER THE CLASSIFICATION ACT AS EXTENDED TO THE FIELD SERVICE BY SECTION 2 OF THE SAME STATUTES, AND THEREFORE HAS NO APPLICATION TO CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT. WHETHER IT IS PERMANENT OR TEMPORARY LEGISLATION IS NOT MATERIAL, SINCE IT IS IN FORCE AT THE PRESENT TIME AND WILL CONTINUE IN FORCE AT LEAST UNTIL JUNE 30, 1928, UNLESS REPEALED OR MODIFIED AT THE NEXT SESSION OF THE CONGRESS. ALTHOUGH IT APPEARS IN THE APPROPRIATION ACT FOR THE TREASURY AND POST OFFICE DEPARTMENTS, IT IS GENERAL LEGISLATION APPLICABLE TO ALL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT. AS TO THE INTENDED SCOPE OF THE PROVISION, YOU REFER TO ITS LEGISLATIVE HISTORY AND PARTICULARLY TO CONGRESSIONAL COMMITTEE REPORTS TENDING TO SHOW THAT THE PROVISION WAS ENACTED FOR THE PURPOSE OF MEETING THE OBJECTIONS MADE BY THIS OFFICE IN ITS DECISIONS, 5 COMP. GEN. 37; ID. 156; ID. 957, WHEREIN WAS CONSIDERED APPLICATION OF THE CLASSIFICATION ACT AS EXTENDING TO THE FIELD. THIS IS SUBSTANTIALLY CORRECT. BUT A CAREFUL READING OF THE PROVISION WOULD SEEM TO IMPEL THE CONCLUSION THAT IT WAS INTENDED TO AND DOES HAVE A GENERAL APPLICATION TO ALL DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. FOR INSTANCE, THE PROVISION BEGINS "THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT," AND NO EXCEPTIONS WHATEVER ARE NOTED. DECISION OF NOVEMBER 16, 1926, 6 COMP. GEN. 332, WHEREIN THE STATUTE WAS APPLIED TO EMPLOYEES OF THE ALASKA RAILROAD, IT WAS STATED:

THE ALASKA RAILROAD IS NOT SUBJECT TO SUCH STATUTES. (CLASSIFICATION ACT AS EXTENDED TO THE FIELD.) DECISION OF AUGUST 23, 1926, A-14869. THE GENERAL MANAGER IS CONTENDING THAT BECAUSE THEREOF, AND BECAUSE THE RETIREMENT ACT IS NOT APPLICABLE TO THE EMPLOYEES UNDER THE ALASKA RAILROAD GENERALLY, THERE IS NO REQUIREMENT THAT THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1926, SUPRA, BE COMPLIED WITH BY THAT SERVICE. NO EXCEPTIONS TO THE REQUIREMENTS OF THAT STATUTE ARE EXPRESSED OR IMPLIED. THE APPLICATION OF THE STATUTE TO A PARTICULAR FIELD ACTIVITY IS NOT DEPENDENT ON THE APPLICATION OF THE CLASSIFICATION ACT AND THE RETIREMENT ACT TO THAT ACTIVITY. THE REQUIREMENTS OF THE STATUTE ARE MANDATORY WHENEVER ALLOWANCES, INCLUDING QUARTERS AND SUBSISTENCE, ARE FURNISHED IN KIND TO CIVILIAN EMPLOYEES. * * *

UPON RECONSIDERATION OF THE QUOTED DECISION IT WAS STATED IN DECISION OF JANUARY 22, 1927, 6 COMP. GEN. 484, AS FOLLOWS:

DETERMINATION THAT COMPLIANCE HAS BEEN MADE WITH THE CLASSIFICATION ACT AND THE RETIREMENT ACT WAS NOT ALL THAT WAS SOUGHT TO BE ACCOMPLISHED BY THE ACT OF MARCH 4 (2), 1926, WHICH IS BROADER IN SCOPE THAN THE CLASSIFICATION ACT AND THE RETIREMENT ACT. THE PURPOSE OF THE ACT OF MARCH 4 (2), 1926, WAS TO PROVIDE THAT ANY ALLOWANCE OF VALUE OF THE CHARACTER SPECIFIED THEREIN FURNISHED EMPLOYEES MUST BE CONSIDERED COMPENSATION, AND SAID ACT SPECIFICALLY REQUIRES THAT "THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED.' UNDER THIS STATUTE THE DETERMINED VALUE OF QUARTERS OR OTHER ALLOWANCES FURNISHED IN KIND IS AS MUCH A PART OF COMPENSATION OF INDIVIDUAL EMPLOYEES AS IS THE CASH PAID, AND THE AMOUNT THEREOF MUST BE CLEARLY SHOWN. * * *

THE PROVISION IN THE ACT OF JULY 16, 1862, 12 STAT. 587, ON WHICH YOUR SECOND PRINCIPAL CONTENTION IS BASED, READS:

* * * THE RATE OF WAGES OF THE EMPLOYEES IN THE NAVY YARDS SHALL CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE OF PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY OF THE RESPECTIVE YARDS, TO BE DETERMINED BY THE COMMANDANTS OF THE NAVY YARDS, SUBJECT TO THE APPROVAL AND REVISION OF THE SECRETARY OF THE NAVY.

IN THE FIRST PLACE, THERE IS A SERIOUS DOUBT WHETHER THE POWDER FACTORY MAY BE CONSIDERED AS A ,NAVY YARD," AND WHETHER THE SALARY OR COMPENSATION OF THE TWO SCIENTISTS CONSIDERED IN THE DECISION OF NOVEMBER 20, 1926, MAY BE CONSIDERED AS "WAGES OF EMPLOYEES" WITHIN THE MEANING OF THE QUOTED STATUTE. BUT, BE THAT AS IT MAY, THERE APPEARS NOTHING IN THE PROVISION IN QUESTION TENDING TO INDICATE THAT THE AUTHORITY THUS VESTED IN THE SECRETARY OF THE NAVY IS NOT SUBJECT TO GENERAL STATUTORY RESTRICTIONS GOVERNING THE PAYMENT OF COMPENSATION TO CIVIL EMPLOYEES, SUCH AS ARE IMPOSED BY SECTIONS 1764 AND 1765, REVISED STATUTES, THE ACT OF JULY 31, 1894, 28 STAT. 205, AND THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, CONSIDERED IN THE PRIOR DECISION, PROHIBITING PAYMENT OF ADDITIONAL COMPENSATION AND LIMITING THE PAYMENT OF COMPENSATION TO ONE PERSON HOLDING TWO POSITIONS. THE AUTHORITY THUS VESTED IN THE SECRETARY OF THE NAVY IS CLEARLY SUBJECT TO THOSE STATUTES AS WELL AS TO ANY OTHER STATUTORY PROVISION GENERALLY APPLICABLE TO THE PAYMENT OF COMPENSATION TO CIVIL EMPLOYEES FROM APPROPRIATED FUNDS, SUCH AS SECTION 3 OF THE ACT OF MARCH 2, 1926, AND SECTION 3 OF THE ACT OF JANUARY 26, 1927, SUPRA. THERE IS NO DIFFERENCE IN THIS REGARD IN THE AUTHORITY OF THE SECRETARY OF THE NAVY AND THAT VESTED IN THE HEAD OF ANY OTHER DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT UNDER AN AUTHORIZATION TO FIX RATES OF COMPENSATION OF EMPLOYEES. THE ACT OF 1862 WAS SIMPLY FOR THE PURPOSE OF MAINTAINING A SCHEDULE OF WAGES FOR NAVY-YARD EMPLOYEES COMPARABLE WITH THAT PAID IN PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY, AND COULD NOT BE CONSTRUED AS REMOVING OR RENDERING INOPERATIVE THE STATUTORY RESTRICTIONS OR LIMITATIONS, NOT CLEARLY INCONSISTENT THEREWITH, GOVERNING THE PAYMENT OF COMPENSATION OF GOVERNMENT EMPLOYEES. THE NECESSITY OF FIXING THE RATES OF PAY OF NAVY- YARD EMPLOYEES IN ACCORDANCE WITH THE PREVAILING RATES IN THE VICINITY CAN NOT OPERATE TO AUTHORIZE DISREGARDING OTHER STATUTORY PROVISIONS CLEARLY APPLICABLE TO THE PAYMENT OF COMPENSATION OF CIVIL EMPLOYEES, INCLUDING THE STATUTORY PROVISION HERE UNDER CONSIDERATION, REQUIRING THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND TO BE CONSIDERED AS A PART OF COMPENSATION AND INCLUDED IN THE TOTAL RATE FIXED FOR THE POSITION.

IF THE CONGRESS HAD INTENDED TO MAKE AN EXCEPTION OF THE NAVAL ESTABLISHMENT OR OF ANY PARTICULAR CLASS OR CLASSES OF EMPLOYEES, IT MUST BE ASSUMED THAT APPROPRIATE LANGUAGE WOULD HAVE BEEN USED IN THE STATUTE TO ACCOMPLISH SUCH PURPOSE AS IN OTHER CASES WHERE EXCEPTIONS WERE INTENDED. FOR INSTANCE, SECTION 7 OF THE ACT OF AUGUST 26, 1912, 37 STAT. 626, PLACED CERTAIN RESTRICTIONS UPON THE EMPLOYMENT OF PERSONAL SERVICES UNDER LUMP-SUM APPROPRIATIONS. THIS STATUTE WAS IN SUCH GENERAL TERMS AS TO NECESSITATE ITS APPLICATION TO ALL DEPARTMENTS AND INDEPENDENT OFFICES OF THE GOVERNMENT. IN ORDER TO EXCEPT THEREFROM CERTAIN CLASSES OF EMPLOYEES, INCLUDING THE MAJORITY OF THE EMPLOYEES AT NAVY YARDS, THE GENERAL PROVISION WAS AMENDED BY SECTION 4 OF THE ACT OF MARCH 4, 1913, 37 STAT. 790, AS FOLLOWS:

* * * PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO MECHANICS, ARTISANS, THEIR HELPERS AND ASSISTANTS, LABORERS, OR ANY OTHER EMPLOYEES WHOSE DUTIES ARE OF SIMILAR CHARACTER AND REQUIRED IN CARRYING ON THE VARIOUS MANUFACTURING OR CONSTRUCTING OPERATIONS OF THE GOVERNMENT.

ACCORDINGLY, THIS OFFICE MUST ADHERE TO THE VIEWS EXPRESSED IN DECISION OF NOVEMBER 20, 1926, THAT SECTION 3 OF THE ACT OF MARCH 2, 1926, SUPRA, REQUIRING THE VALUE OF ALLOWANCES FURNISHED IN KIND TO CIVIL EMPLOYEES TO BE DETERMINED AND CONSIDERED AS A PART OF COMPENSATION, IS APPLICABLE TO ALL CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, AND THAT THE DETERMINED VALUE OF SUCH ALLOWANCES FURNISHED IN KIND MUST BE CONSIDERED AS A PART OF THE COMPENSATION WITHIN THE MEANING OF THE GENERAL STATUTORY PROVISIONS RELATIVE TO THE PAYMENT OF EXTRA COMPENSATION AND COMPENSATION FOR TWO POSITIONS HELD BY ONE PERSON.

YOU ALSO SUGGEST THAT THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, INCLUDING NOTE 10, CONSIDERED IN PRIOR DECISION, PURSUANT TO WHICH THE QUARTERS HERE IN QUESTION WERE FURNISHED, HAS THE FULL FORCE AND EFFECT OF LAW, AND WITH REFERENCE THERETO YOU STATE:

THERE MAY BE HONEST DIFFERENCES OF OPINION AS TO WHETHER THE REGULATIONS OF THIS DEPARTMENT AS CONTAINED IN THE SCHEDULE OF WAGES ADOPTED BY AUTHORITY OF THE ACT APPROVED JULY 16, 1862, ARE IN VIOLATION OF SECTIONS 1763-1765 OF THE REVISED STATUTES, BUT IT IS SUBMITTED THAT THE RESPONSIBILITY RESTS WITH THE SECRETARY OF THE NAVY, WHO HAS DECIDED THAT THE SAID REGULATIONS ARE WITHIN THE SCOPE OF HIS AUTHORITY AND DUTY IN THE ADMINISTRATION OF THE NAVAL ESTABLISHMENT, AND THAT THE AFORESAID SECTIONS OF THE REVISED STATUTES, AS JUDICIALLY CONSTRUED AND AS APPLIED BY THIS DEPARTMENT TO THE FACTS AS THEY EXIST, ARE NOT VIOLATED EITHER IN LETTER OR SPIRIT BY THE ADMINISTRATIVE ACTION WHICH IT HAS TAKEN. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE DECISION OF THE SUPREME COURT IN THE CASE OF BOSKE V. COMINGORE (177 U.S. 459), IN WHICH IT WAS HELD THAT, IN DETERMINING WHETHER A REGULATION PROMULGATED BY THE HEAD OF A DEPARTMENT IS CONSISTENT WITH LAW, THERE MUST BE APPLIED THE RULE OF WITHIN THE POWERS CONFERRED UPON IT BY THE CONSTITUTION; THAT IS TO SAY, SUCH A REGULATION SHOULD NOT BE DISREGARDED OR ANNULLED UNLESS, IN THE JUDGMENT OF THE COURT, IT IS PLAINLY AND PALPABLY INCONSISTENT WITH LAW; AND THAT THOSE WHO INSIST THAT SUCH A REGULATION IS INVALID MUST MAKE ITS INVALIDITY SO MANIFEST THAT THE COURT HAS NO CHOICE EXCEPT TO HOLD THAT THE SECRETARY HAS EXCEEDED HIS AUTHORITY AND EMPLOYED MEANS THAT ARE NOT AT ALL APPROPRIATE TO THE END SPECIFIED IN THE ACT OF CONGRESS. ATTENTION IS ALSO INVITED TO THE CASE OF ROBERTS V. UNITED STATES (44 CT.CLS. 411), IN WHICH IT WAS HELD THAT A REGULATION MUST BE INTERPRETED, IF POSSIBLE, TO HARMONIZE WITH THE LAW; AND TO THE CASE OF MADDUX V. UNITED STATES (20 CT.CLS. 193), HOLDING THAT WHEN CONGRESS ALLOWS A REGULATION TO BE FORMULATED AND PUBLISHED AND CARRIED INTO EFFECT YEAR AFTER YEAR THE LEGISLATIVE RATIFICATION MUST BE IMPLIED, AND THAT IT DOES NOT COMPORT WITH NATIONAL HONOR TO ALLOW SUCH A REGULATION OF AN EXECUTIVE DEPARTMENT TO EXIST AND INDIVIDUALS TO ACQUIRED RIGHTS UPON THE FAITH THEREOF, AND THEN TO WITHHOLD PAYMENT AND QUESTION THE LEGALITY OF THE REGULATION. SEE ALSO GARLINGER V. UNITED STATES (30 CT.CLS. 477) TO THE EFFECT THAT WHERE REGULATIONS HAVE BEEN IN FORCE FOR A NUMBER OF YEARS AND HAVE RECEIVED THE TACIT, IF NOT EXPRESS, APPROVAL OF CONGRESS THE COURT DOES NOT FEEL AT LIBERTY TO DISREGARD THEM AND HOLD THAT THEY ARE NOT AUTHORIZED BY LAW, EVEN THOUGH IT "MAY WELL BE DOUBTED" THAT THEY ARE AUTHORIZED BY LAW. HAS FURTHER BEEN HELD THAT A REGULATION NEED NOT BE PROMULGATED IN ANY SET FORM NOR IN WRITING, BUT MAY CONSIST OF BE PROMULGATED IN ANY SET FORM NOR IN WRITING, BUT MAY CONSIST OF ESTABLISHED USAGES AND PRACTICES WHICH HAVE BECOME A KIND OF COMMON LAW OF THE DEPARTMENT. (HAAS V. HENKEL, 216 U.S. 462; 167 FED.REP. 211.)

NOTE 10, AS AMENDED, OF THE SCHEDULE OF WAGES FOR THE CALENDAR YEAR 1926, WHICH YOU STATE AS IDENTICAL WITH NOTE 10 APPEARING IN THE SCHEDULE OF WAGES FOR THE CALENDAR YEAR 1927, IS QUOTED IN THE PRIOR DECISION AND IS AS FOLLOWS:

QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE.--- WHEREVER IN ANY NAVAL STATION THE PUBLIC INTEREST REQUIRES THE AVAILABILITY OF EMPLOYEES FOR FIRE AND POLICE PROTECTION AND EMERGENCIES OUTSIDE OF REGULAR WORKING HOURS, EMPLOYEES ASSIGNED THIS DUTY SEPARATE AND APART FROM THEIR REGULAR DAILY WORK MAY IN THE DISCRETION OF THE COMMANDANT, BE FURNISHED QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE, OR ANY ONE OR MORE OF THESE, IF AVAILABLE. THE APPRAISED REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE COMPENSATION IN FULL FOR THESE DUTIES.

WHEREVER EMPLOYEES ARE FURNISHED ANY OF THE ABOVE-MENTIONED ITEMS AND SERVICES ARE NOT RENDERED IN CONFORMITY WITH THE FOREGOING, THE APPRAISED REASONABLE VALUE OF THE ITEMS FURNISHED SHALL BE DEDUCTED FROM THE COMPENSATION OF SUCH EMPLOYEES EACH PAY PERIOD.

THE RULE IS WELL ESTABLISHED THAT WHERE THERE IS A PLAIN CONFLICT BETWEEN A REGULATION AND A STATUTE THE REGULATION MUST GIVE WAY TO THE STATUTE. THEREFORE, TO THE EXTENT THAT THE WAGE SCHEDULE AND NOTE HERE UNDER CONSIDERATION PURPORT TO PERMIT AN EMPLOYEE TO RECEIVE COMPENSATION FOR TWO POSITIONS OR TO RECEIVE COMPENSATION FOR EXTRA SERVICES IN ADDITION TO THE COMPENSATION FIXED BY LAW OR REGULATION FOR HIS REGULAR POSITION, IN CONTRAVENTION OF PLAIN STATUTORY PROVISIONS, SAID SCHEDULE AND NOTE ARE ILLEGAL AND OF NO FORCE OR EFFECT.

GIVING THE LANGUAGE APPEARING IN SAID NOTE 10 ITS USUAL AND ORDINARY MEANING, AND GIVING CAREFUL CONSIDERATION TO ALL THE EVIDENCE THAT WAS BEFORE THIS OFFICE IN THE ACCOUNTS OF THE DISBURSING OFFICER, IN THE SCHEDULE OF WAGES OR OTHERWISE, THERE WERE BUT TWO CONCLUSIONS POSSIBLE TO BE REACHED. EITHER THAT TWO SEPARATE AND DISTINCT POSITIONS WERE HELD BY EACH OF THE TWO EMPLOYEES, A DAYTIME AND NIGHTTIME POSITION, OR THAT THE DUTIES REQUIRED AFTER WORKING HOURS OF THESE TWO EMPLOYEES WERE EXTRA SERVICES FOR WHICH ADDITIONAL COMPENSATION, IN THE NATURE OF QUARTERS IN KIND, WERE ALLOWED. CONSIDERING THE VALUE OF THE QUARTERS FURNISHED EXACTLY THE SAME AS COMPENSATION, WHICH IS REQUIRED UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1926, SUPRA, AND AS EXTENDED FOR THE FISCAL YEAR 1928, UNDER THE ACT OF JANUARY 26, 1927, SUPRA, IN EITHER CASE THE ALLOWANCES OF QUARTERS IN KIND WOULD BE PROHIBITED, IN THE FORMER CASE UNDER THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AND THE ACT OF JULY 31, 1894, 28 STAT. 205, AND IN THE LATTER CASE UNDER SECTIONS 1764 AND 1765, REVISED STATUTES. ACCORDINGLY ON THE BASIS OF THE EVIDENCE THEN BEFORE THE OFFICE, THE PRIOR DECISION WAS UNDOUBTEDLY CORRECT.

HOWEVER, IN YOUR PRESENT SUBMISSION YOU STATE:

THE EMPLOYEES IN QUESTION ARE NOT PAID "FOR TWO SEPARATE AND DISTINCT POSITIONS, THEIR REGULAR DAYTIME POSITION AND EXTRA NIGHTTIME POSITION," AS UNDERSTOOD BY YOU, NOR ARE THEY PAID ADDITIONAL COMPENSATION FOR EXTRA DUTIES WITHIN THE MEANING OF SECTION 1765, REVISED STATUTES, NOR DO THEY RECEIVE MORE THAN ONE SALARY FROM THE GOVERNMENT IN EXCESS OF $2,000 PER ANNUM, IN VIOLATION OF THE ACT APPROVED MAY 10, 1916, AS AMENDED BY ACT OF AUGUST 29, 1916, CITED IN YOUR DECISION. ON THE CONTRARY, THEY HOLD ONE POSITION, THE DUTIES OF WHICH INCLUDE SERVICES TO BE RENDERED IN THE NIGHTTIME AS WELL AS IN THE DAYTIME, FOR WHICH COMBINED DUTIES THEY ARE PAID THE WAGES FIXED BY THE SCHEDULE ISSUED BY THIS DEPARTMENT IN CONFORMITY WITH LAW, AND THEY PERFORM NO EXTRA DUTIES FOR WHICH IT HAS BEEN ATTEMPTED TO ALLOW THEM ADDITIONAL COMPENSATION.

THE SERVICE REGULARLY RENDERED BY CERTAIN NAVAL EMPLOYEES OUTSIDE OF USUAL WORKING HOURS IS THE BASIS FOR ALLOWING THEM QUARTERS TO WHICH OTHER EMPLOYEES OF THE SAME GROUP ARE NOT ENTITLED. AS BETWEEN TWO EMPLOYEES IN THE SAME GROUP, THE ONE RECEIVES GREATER COMPENSATION THAN THE OTHER AND IN RETURN FOR THIS ADDITIONAL COMPENSATION HE RENDERS SERVICE ADDITIONAL TO THAT RENDERED BY THE OTHER; THEREFORE, AS COMPARED WITH THE OTHER MAN IN THE SAME GROUP, ONE MAY BE SAID TO RECEIVE ADDITIONAL COMPENSATION FOR EXTRA SERVICES; BUT, CONSIDERING HIMSELF ALONE, IT CAN NOT BE SAID CONSISTENTLY WITH THE FACTS THAT HE RECEIVES ADDITIONAL COMPENSATION FOR EXTRA SERVICE. SO FAR AS HE IS CONCERNED, THERE IS NO ADDITIONAL COMPENSATION AND NO EXTRA SERVICE; HE REGULARLY RECEIVES THE SAME COMPENSATION AT ALL TIMES AND RENDERS THE SAME SERVICE AT ALL TIMES. THINK THE CONFUSION HAS BEEN LARGELY CAUSED BY THE FAILURE TO OBSERVE THIS DISTINCTION.

ACCEPTING YOUR PRESENT STATEMENT AS SHOWING THE TRUE CHARACTER OF THE POSITIONS IN QUESTION, IT IS APPARENT THAT SAID NOTE 10 OF THE REGULATIONS AS NOW APPEARING DOES NOT REFLECT THE TRUE FACTS NOR THE TRUE INTENT OF THE ADMINISTRATIVE OFFICE. ASSUMING THAT THE NAVY DEPARTMENT IS DESIROUS OF COOPERATING WITH THIS OFFICE IN WORKING OUT A PROPER PROCEDURE UNDER THE SOMEWHAT TROUBLESOME NEW STATUTORY PROVISION UNDER CONSIDERATION, I HAVE RESPECTFULLY TO SUGGEST THAT NOTE 10 BE AMENDED TO READ AS FOLLOWS:

10. QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE.---WHEREVER IN ANY NAVAL STATION THE PUBLIC INTEREST REQUIRES THE AVAILABILITY OF PARTICULAR EMPLOYEES FOR FIRE AND POLICE PROTECTION AND EMERGENCIES OUTSIDE OF REGULAR WORKING HOURS, THE REGULAR DUTIES OF THE POSITION HELD BY EACH OF SUCH EMPLOYEES SHALL BE CONSIDERED AS INCLUDING THE SPECIAL SERVICES TO BE RENDERED OUTSIDE OF REGULAR WORKING HOURS, AND SUCH EMPLOYEES MAY, IN THE DISCRETION OF A COMMANDANT, BE FURNISHED QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE, OR ANY ONE OR MORE OF THESE, IF AVAILABLE, THE VALUE OF WHICH WILL BE DETERMINED AND INCLUDED AS A PART OF THE TOTAL RATE OF COMPENSATION FIXED FOR EACH OF SUCH POSITIONS. AND LAUNDRY SERVICE, OR ANY ONE OR MORE OF THESE, IF AVAILABLE, THE VALUE OF WHICH WILL BE DETERMINED AND INCLUDED AS A PART OF THE TOTAL RATE OF COMPENSATION FIXED FOR EACH OF SUCH POSITIONS.

THEN, IF IT IS DESIRED TO STATE IN THE SCHEDULE OF WAGES ONLY THE RATE OF WAGES PAID IN CASH, AN ASTERISK OR OTHER CHARACTER MIGHT BE PLACED OPPOSITE EACH OF THE POSITIONS WHERE QUARTERS OR OTHER ALLOWANCES IN KIND ARE FURNISHED AS A PART OF THE TOTAL RATE OF COMPENSATION, REFERRING TO A FOOTNOTE IN WHICH MIGHT APPEAR A STATEMENT GIVING THE KIND OR CHARACTER OF THE ALLOWANCES FURNISHED, TOGETHER WITH THE DETERMINED VALUE THEREOF AND A REFERENCE TO NOTE 10 OR OTHER APPLICABLE NOTE OF THE SCHEDULE.

IN VIEW OF THE DIFFERENT STATEMENT OF FACTS NOW APPEARING, TO THE EFFECT THAT MESSRS. FARNUM AND PATTERSON EACH HOLD BUT ONE POSITION, A PART OF THE DUTIES OF WHICH IN EACH INSTANCE IS TO PERFORM SERVICES OUTSIDE OF REGULAR WORKING HOURS IN CONNECTION WITH THE FIRE AND POLICE PROTECTION OF THE POWDER PLANT, AND IN VIEW OF THE APPARENT MISUNDERSTANDING OF THE DEPARTMENT AS TO THE SCOPE AND EFFECT OF THE ACT OF MARCH 2, 1926, SUPRA, THERE WILL NOT BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER THE VALUE OF THE QUARTERS FURNISHED IN KIND IN EACH INSTANCE FOR PERIODS ON AND AFTER JULY 1, 1926. TO THIS EXTENT THE DECISION OF NOVEMBER 20, 1926, IS MODIFIED.

WITH REFERENCE TO YOUR SUGGESTION AS TO THE APPLICATION OF THE DECISION IN THE CASE OF SMITH V. JACKSON, 246 U.S. 388, TO THE CASES HERE PRESENTED, IT NEED ONLY BE SAID HERE THAT THAT DECISION WAS RENDERED MAINLY IN CONNECTION WITH ADMINISTRATIVE ACTION UNDER AN ENTIRELY DIFFERENT STATUTE AND STATEMENT OF FACTS AND PRIOR TO THE ENACTMENT OF THE PROVISION HEREIN CONSIDERED. THE ANALOGY TO THE PRESENT SITUATION DOES NOT APPEAR. IT MAY NOT BE CONCLUDED THAT THE SPECIFIC HOLDING MADE IN THAT CASE IS NECESSARILY CONTROLLING IN THE CONSTRUCTION OF A GENERAL STATUTE SUBSEQUENTLY ENACTED. IN THIS CONNECTION SEE 6 COMP. GEN. 470.

YOUR ATTENTION IS INVITED TO THE NEXT TO THE LAST PARAGRAPH OF THE FORMER DECISION, TO WHICH YOU DO NOT ALLUDE IN YOUR PRESENT SUBMISSION. APPEARED TO THIS OFFICE AT THE TIME THAT THE RATE OF $7,500 PER ANNUM IS THE MAXIMUM SALARY RATE PAID FOR ANY CIVIL POSITION UNDER THE NAVAL ESTABLISHMENT, WHICH, I BELIEVE, IS IN ACCORDANCE WITH THE GENERAL INTENT OF THE CONGRESS AS EXPRESSED IN CERTAIN STATUTORY PROVISIONS GOVERNING THE PAYMENT OF SALARIES OF CIVIL EMPLOYEES. IF SO, THERE WOULD APPEAR TO BE FOR ADJUSTMENT THE SALARY RATE FIXED FOR THE POSITION HELD BY PATTERSON SO AS TO LIMIT THE TOTAL SALARY RATE, INCLUDING BOTH THE CASH PAID AND THE DETERMINED VALUE OF THE QUARTERS FURNISHED IN KIND TO $7,500 PER ANNUM. IN THE ABSENCE OF A SATISFACTORY SHOWING IN THIS REGARD, THE EXCESS WILL BE DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER WITH RESPECT TO PAYMENTS HEREAFTER MADE.