A-23500, JULY 16, 1928, 8 COMP. GEN. 15

A-23500: Jul 16, 1928

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REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED UPON THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF BRIG. THE AMOUNT OF THE PRESENT VOUCHER REPRESENTS THE RENTAL AND SUBSISTENCE ALLOWANCES AS DISTINGUISHED FROM PAY WHICH WERE DEDUCTED FROM THE COMPENSATION FIXED FOR THE PRESIDENT OF THE COMMISSION IN THE SECOND PARAGRAPH OF SECTION 8 OF THE ACT OF MAY 15. THE QUESTION PRESENTED BEING WHETHER SUCH ALLOWANCES ARE TO BE CONSIDERED AS "OFFICIAL SALARY" WITHIN THE MEANING OF THE ACT OF MAY 15. MAKES PROVISION FOR CONTROL OF THE FLOODS IN THE MISSISSIPPI RIVER AND ITS TRIBUTARIES AND PROVIDES IN SECTION 8 THEREOF: * * * THE PRESIDENT OF THE COMMISSION SHALL BE THE EXECUTIVE OFFICER THEREOF AND SHALL HAVE THE QUALIFICATIONS NOW PRESCRIBED BY LAW FOR THE ASSISTANT CHIEF OF ENGINEERS.

A-23500, JULY 16, 1928, 8 COMP. GEN. 15

MISSISSIPPI RIVER COMMISSION - COMPENSATION OF COMMISSIONERS THE "OFFICIAL SALARY" OF ANY OFFICER OF THE ARMY APPOINTED OR EMPLOYED ON THE MISSISSIPPI RIVER COMMISSION AND WHICH THE ACT OF MAY 15, 1928, 45 STAT. 537, REQUIRES TO BE DEDUCTED FROM THE COMPENSATION PAID SUCH OFFICERS, BY THE COMMISSION, INCLUDES BOTH PAY AND ALLOWANCES.

COMPTROLLER GENERAL MCCARL TO CAPTAIN WILLIS E. TEALE, UNITED STATES ARMY, JULY 16, 1928:

YOUR LETTER OF JUNE 13, 1928, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED UPON THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF BRIG. GEN. CHARLES L. POTTER, RETIRED, UNITED STATES ARMY, FOR $66.88. IT APPEARS FROM YOUR SUBMISSION THAT GENERAL POTTER HAS ALREADY BEEN PAID AS COMPENSATION FOR THE LAST HALF OF THE MONTH OF MAY ON THE BASIS OF $10,000 PER ANNUM AS PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION, LESS THE PAY AND ALLOWANCES ACCRUING TO HIM AS AN OFFICER OF THE ARMY. THE AMOUNT OF THE PRESENT VOUCHER REPRESENTS THE RENTAL AND SUBSISTENCE ALLOWANCES AS DISTINGUISHED FROM PAY WHICH WERE DEDUCTED FROM THE COMPENSATION FIXED FOR THE PRESIDENT OF THE COMMISSION IN THE SECOND PARAGRAPH OF SECTION 8 OF THE ACT OF MAY 15, 1928; THE QUESTION PRESENTED BEING WHETHER SUCH ALLOWANCES ARE TO BE CONSIDERED AS "OFFICIAL SALARY" WITHIN THE MEANING OF THE ACT OF MAY 15, 1928, 45 STAT. 537. SAID ACT OF MAY 15, 1928, MAKES PROVISION FOR CONTROL OF THE FLOODS IN THE MISSISSIPPI RIVER AND ITS TRIBUTARIES AND PROVIDES IN SECTION 8 THEREOF:

* * * THE PRESIDENT OF THE COMMISSION SHALL BE THE EXECUTIVE OFFICER THEREOF AND SHALL HAVE THE QUALIFICATIONS NOW PRESCRIBED BY LAW FOR THE ASSISTANT CHIEF OF ENGINEERS, SHALL HAVE THE TITLE BRIGADIER GENERAL, CORPS OF ENGINEERS, AND SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF A BRIGADIER GENERAL WHILE ACTUALLY ASSIGNED TO SUCH DUTY: PROVIDED, THAT THE PRESENT INCUMBENT OF THE OFFICE MAY BE APPOINTED A BRIGADIER GENERAL OF THE ARMY, RETIRED, AND SHALL BE ELIGIBLE FOR THE POSITION OF PRESIDENT OF THE COMMISSION IF RECALLED TO ACTIVE SERVICE BY THE PRESIDENT UNDER THE PROVISIONS OF EXISTING LAW.

THE SALARY OF THE PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION SHALL HEREAFTER BE $10,000 PER ANNUM, AND THE SALARY OF THE OTHER MEMBERS OF THE COMMISSION SHALL HEREAFTER BE $7,500 PER ANNUM. THE OFFICIAL SALARY OF ANY OFFICER OF THE UNITED STATES ARMY OR OTHER BRANCH OF THE GOVERNMENT APPOINTED OR EMPLOYED UNDER THIS ACT SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY, OR WHICH SHALL BE FIXED UNDER, THE TERMS OF THIS ACT.

THE MISSISSIPPI RIVER COMMISSION WAS CREATED BY THE ACT OF JUNE 28, 1879, 21 STAT. 37, TO BE COMPOSED OF THREE OFFICERS OF THE ENGINEER CORPS OF THE ARMY, ONE OFFICER FROM THE COAST AND GEODETIC SURVEY AND THREE MEMBERS FROM CIVIL LIFE. IT WAS PROVIDED THAT COMMISSIONERS APPOINTED FROM THE ENGINEER CORPS OF THE ARMY AND FROM THE COAST AND GEODETIC SURVEY SHOULD RECEIVE NO OTHER PAY OR COMPENSATION THAN WAS ALLOWED THEM BY LAW AND THE THREE COMMISSIONERS APPOINTED FROM CIVIL LIFE WERE TO RECEIVE $3,000 PER ANNUM. ONE OF THE MEMBERS OF THE COMMISSION DETAILED FROM THE ENGINEER CORPS OF THE ARMY WAS REQUIRED TO BE DESIGNATED BY THE PRESIDENT AS PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION. BY THE ACT OF MARCH 1, 1917, 39 STAT. 951, THE SALARY OF THE CIVILIAN MEMBERS OF THE MISSISSIPPI RIVER COMMISSION WAS INCREASED TO $5,000 PER ANNUM. IT WAS WITH RESPECT TO THIS SITUATION THAT THE ORIGINAL JONES BILL, S. 3740, MADE PROVISION AS IN THE FIRST QUOTATION ABOVE AND RESPECTING WHICH THE SENATE COMMITTEE (S.REPT. NO. 619, 70TH CONG., 1ST SESS.) QUOTED A PROJECT AS REPORTED BY THE CHIEF OF ENGINEERS, DECEMBER 1, 1927, TO THE SECRETARY OF WAR AS FOLLOWS, PAGE 44:

146. * * * BECAUSE OF THE IMPORTANCE AND MAGNITUDE OF THE DUTIES UNDER HIS CHARGE, THE PRESIDENT OF THE COMMISSION, WHILE ACTUALLY ASSIGNED TO SUCH DUTY BY COMPETENT ORDERS, SHOULD RECEIVE THE RANK, PAY, AND ALLOWANCES OF A BRIGADIER GENERAL OF ENGINEERS. HE SHOULD, TO BE ELIGIBLE FOR SUCH ASSIGNMENT, HAVE THE QUALIFICATIONS NOW PRESCRIBED BY LAW FOR THE ASSISTANT CHIEF OF ENGINEERS.

THE SECOND PARAGRAPH OF SECTION 8, QUOTED ABOVE, WAS ADDED BY THE HOUSE COMMITTEE, AND RESPECTING THE PROPOSED AMENDMENT IT WAS STATED IN HOUSE REPORT 1100, SEVENTIETH CONGRESS, FIRST SESSION, PAGE 6:

A NEW PARAGRAPH HAS BEEN ADDED AT THE END OF THIS SECTION PROVIDING THAT THE SALARY OF THE PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION SHALL BE $10,000 PER YEAR, AND THAT OF THE OTHER MEMBERS OF THE COMMISSION SHALL BE $7,500. THE SALARY OF THE CIVILIAN MEMBERS OF THE COMMISSION AT THE PRESENT TIME IS $5,000 PER YEAR, THAT BEING THE AMOUNT FIXED IN THE FLOOD- CONTROL ACT OF 1917, AND WHICH HAS NOT BEEN INCREASED SINCE THAT DATE. THIS SMALL SALARY IS ENTIRELY OUT OF PROPORTION WITH THE TREMENDOUS RESPONSIBILITY PLACED UPON THE MEMBERS OF THE COMMISSION IN THE PRESENT ACT. THEY ARE CHARGED WITH CARRYING OUT A PROJECT WHICH IS PROBABLY THE GREATEST ENGINEERING PROJECT IN THE WORLD, FAR GREATER THAN THE BUILDING OF THE PANAMA CANAL. THE MEMBERS OF THE COMMISSION, THE COMMITTEE BELIEVES, SHOULD RECEIVE SALARIES MORE COMMENSURATE WITH THEIR DUTIES AND RESPONSIBILITIES, AND HAS THEREFORE PROVIDED THIS SLIGHT INCREASE IN THEIR COMPENSATION. THE SALARIES OF THE ARMY OFFICERS WHO ARE MEMBERS OF THE COMMISSION ARE, OF COURSE, FIXED BY THE LAW GOVERNING THE PAY OF THE ARMY, AND THIS ADDED PARAGRAPH THEREFORE PROVIDES THAT THEIR OFFICIAL SALARIES SHALL BE DEDUCTED FROM THE COMPENSATION HEREIN FIXED.

THE ACT OF MAY 15, 1928, CITED, FIRST PROVIDES THAT THE PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION IS TO HAVE THE TITLE OF BRIGADIER GENERAL "AND SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF A BRIGADIER GENERAL WHILE ACTUALLY ASSIGNED TO SUCH DUTY.' (THE PROVISO THERETO AUTHORIZES THE PRESENT INCUMBENT TO BE APPOINTED A BRIGADIER GENERAL, RETIRED, ELIGIBLE FOR APPOINTMENT AS PRESIDENT OF THE COMMISSION, IF CALLED TO ACTIVE SERVICE.) IT IS NEXT PROVIDED THAT THE SALARY OF THE PRESIDENT OF THE COMMISSION SHALL BE $10,000 PER ANNUM LESS THE AMOUNT OF HIS "OFFICIAL SALARY.'

THE TWO PROVISIONS OF THE ENACTMENT ARE NOT ENTIRELY CLEAR, BUT IT IS EVIDENT THAT THE PURPOSE AND INTENT WAS TO FIX THE DEFINITE COMPENSATION OF $10,000 PER YEAR LESS THE COMPENSATION THE OFFICER WOULD RECEIVE UNDER HIS APPOINTMENT IN THE ARMY, AND DEFINED AS "OFFICIAL SALARY.' UNDER RECOGNIZED RULES OF STATUTORY CONSTRUCTION THAT IS TO BE TREATED AS THE COMPENSATION FIXED BY LAW FOR THE PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION.

IT WILL BE OBSERVED THAT THE HOUSE COMMITTEE REPORT MADE REFERENCE TO THE PANAMA CANAL, AND IT IS FOR NOTING THAT BY THE ACT OF AUGUST 24, 1912, 37 STAT. 561, THE SALARY OF THE GOVERNOR OF THE PANAMA CANAL WAS FIXED AT $10,000 PER ANNUM, AND THAT ACT CONTAINS A REQUIREMENT THAT IF ANY OF THE PERSONS APPOINTED OR EMPLOYED UNDER THE PANAMA CANAL "SHALL BE PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED" UNDER THE TERMS OF THE ACT. A SIMILAR PROVISION REQUIRING THE DEDUCTION OF THE OFFICIAL SALARY OF PERSONS EMPLOYED IN CONNECTION WITH THE WORK OF THE PANAMA CANAL HAD BEEN HERETOFORE CONTAINED IN THE ACT OF JUNE 28, 1902, 32 STAT. 481, AUTHORIZING THE CONSTRUCTION OF THE CANAL. THE TERM ,OFFICIAL SALARY" IN THESE PANAMA CANAL LAWS WAS UNIFORMLY AND CONSISTENTLY CONSTRUED TO REQUIRE THE DEDUCTION OF ANY AND ALL AMOUNTS ACCRUING TO OR RECEIVED BY AN OFFICER OF THE ARMY OR THE NAVY, BY VIRTUE OF HIS OFFICE IN THE ARMY OR NAVY, WHETHER DENOMINATED PAY OR ALLOWANCES. SEE THE CASES COLLECTED AND REVIEWED IN 1 COMP. GEN. 112 AND 2 ID. 219. THE TERM "PAY" IN THE MILITARY AND NAVAL SERVICES HAS A RESTRICTED AND LIMITED MEANING AND INCLUDES ONLY "THE STIPULATED MONTHLY COMPENSATION DESIGNATED AS PAY," UNITED STATES V. LANDERS, 92 U.S. 77, 81, OR THE "FIXED AND DIRECT AMOUNT GIVEN BY LAW TO PERSONS IN THE MILITARY SERVICE IN CONSIDERATION OF AND AS COMPENSATION FOR THEIR PERSONAL SERVICE * * *. BOTH PAY AND ALLOWANCES ARE COMPENSATION FOR SERVICES WHILE IN SERVICE * * *.' SHERBURNE V. UNITED STATES, 16 CT.CLS. 491, 196. THE TERM "PAY AND ALLOWANCES" AS USED IN THE MILITARY AND NAVAL SERVICES INCLUDES ALL THAT MAY BE RECOVERED FROM THE GOVERNMENT IN CONSIDERATION OF THE APPOINTMENT AND SERVICES OF THE INDIVIDUAL, UNITED STATES V. LANDERS, AND THAT TERM, SO FAR AS ARMY AND NAVY PERSONNEL ARE CONCERNED, MORE NEARLY CORRESPONDS TO AND IS SYNONYMOUS WITH "SALARY" OR "COMPENSATION" THAN IS THE TERM "PAY.' THIS WAS THE BASIS OF THE FORMER HOLDINGS THAT THE TERM "OFFICIAL SALARY" INCLUDED ANY AND ALL AMOUNTS THAT MIGHT BE RECOVERED BY THE OFFICER OF PAID TO HIM BY VIRTUE OF HIS APPOINTMENT IN THE ARMY OR THE NAVY. ALL AMOUNTS RECEIVED BY VIRTUE OF THE ARMY OFFICE ARE INCLUDED IN THE TERM "OFFICIAL SALARY" AND ARE REQUIRED TO BE DEDUCTED FROM THE SALARY OR COMPENSATION PAYABLE UNDER THE MISSISSIPPI RIVER COMMISSION. THIS CONSTRUCTION OF THE TERM "OFFICIAL SALARY" HAS BEEN FOLLOWED FOR NEARLY 25 YEARS; IT HAS NEVER BEEN CONSTRUED DIFFERENTLY AND THE CONSTRUCTION HAS BEEN IN EFFECT ADOPTED BY THE CONGRESS IN THE REENACTMENT OF THE PANAMA CANAL LEGISLATION. OBVIOUSLY IT HAS THE SAME MEANING IN THE LAW UNDER CONSIDERATION.