A-32621, AUGUST 23, 1930, 10 COMP. GEN. 85

A-32621: Aug 23, 1930

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WHO WAS RETIRED AT HIS OWN REQUEST AFTER 30 YEARS' SERVICE. IS IN DIRECT CONTRAVENTION OF THE ACT OF JULY 31. IS UNAUTHORIZED. WATTS WAS RETIRED APRIL 30. HIS RETIRED PAY IS IN EXCESS OF THE RATE OF $2. PROVIDES IN PART AS FOLLOWS: * * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE IN WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW. OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT. WITHIN THE MEANING OF THIS SECTION BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

A-32621, AUGUST 23, 1930, 10 COMP. GEN. 85

COMPENSATION - HOLDING TWO POSITIONS - RETIRED ARMY OFFICER THE EMPLOYMENT UNDER THE CENSUS BUREAU OF A RETIRED OFFICER OF THE ARMY, WHO WAS RETIRED AT HIS OWN REQUEST AFTER 30 YEARS' SERVICE, IS IN DIRECT CONTRAVENTION OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, AND IS UNAUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, AUGUST 23, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR PREAUDIT ADMINISTRATIVELY APPROVED PAY-ROLL VOUCHER IN THE AMOUNT OF $768 STATED IN FAVOR OF COL. ARTHUR P. WATTS. A RETIRED ARMY OFFICER, FOR SERVICES AS A SUPERVISOR'S CLERK, BUREAU OF THE CENSUS, FOR PERIOD FROM JANUARY 22 TO JUNE 14, 1930, AT THE RATE OF $6 PER DIEM.

COL. ARTHUR P. WATTS WAS RETIRED APRIL 30, 1929, AT HIS OWN REQUEST AFTER 30 YEARS SERVICE (SEE ARMY REGISTER, 1930, P. 833), AND HIS RETIRED PAY IS IN EXCESS OF THE RATE OF $2,500 PER ANNUM.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT 245, PROVIDES IN PART AS FOLLOWS:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE IN WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE AND RETIRED OFFICERS OF THE NAVY, ARMY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT. (SECTION 62,TITLE 5, U.S.C.A.)

IT IS WELL SETTLED THAT A RETIRED ARMY OFFICER HOLDS AN OFFICE WITH SALARY OR ANNUAL COMPENSATION ATTACHED WITHIN THE MEANING OF THIS STATUTE. AS COLONEL WATTS WAS RETIRED AT HIS OWN REQUEST AFTER 30 YEARS' SERVICE, HE DOES NOT COME WITHIN THE EXPRESS EXCEPTIONS THERETO. THEREFORE, HE WAS PROHIBITED FROM HOLDING THE POSITION UNDER THE BUREAU OF CENSUS, WHICH MUST BE CONSIDERED AS AN OFFICE TO WHICH COMPENSATION IS ATTACHED, UNLESS THERE IS A PROVISION IN THE CENSUS ACT, OR OTHERWISE, WHICH MAY BE CONSIDERED AS AUTHORIZING HIS EMPLOYMENT NOTWITHSTANDING THE GENERAL STATUTE PROHIBITING DUAL EMPLOYMENT. SEE DECISION OF AUGUST 7, 1930, A-32876, AND CASES THEREIN CITED.

THE ONLY PORTION OF THE CENSUS ACT OF JUNE 18, 1929, 46 STAT. 21, FOR CONSIDERATION IN THIS CONNECTION IS THE FOLLOWING FROM SECTION 3:

* * * THE ENLISTED MEN AND OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS MAY BE APPOINTED AND COMPENSATED FOR THE ENUMERATION OF ARMY, NAVY, MARINE, AND OTHER MILITARY POSTS. EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER DEPARTMENTS AND INDEPENDENT OFFICES OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF THE RESPECTIVE DEPARTMENT OR OFFICE, BE EMPLOYED AND COMPENSATED FOR FIELD WORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS. * * *

THIS OFFICE HAS BEEN ADVISED THAT COLONEL WATTS PERFORMED GENERAL CENSUS WORK AT DALLAS, TEX., AND NOT IN CONNECTION WITH THE "ENUMERATION OF ARMY, NAVY, MARINE, AND OTHER MILITARY POSTS.' THEREFORE, IT IS UNNECESSARY TO DECIDE HEREIN WHETHER A RETIRED ARMY OFFICER WOULD FALL WITHIN THE TERM "OFFICER" AS USED IN THE CENSUS STATUTE.

THE TERM "EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER DEPARTMENTS AND INDEPENDENT OFFICES OF THE GOVERNMENT" REFERS EXCLUSIVELY TO CIVILIANS ON ACTIVE DUTY AND MAY NOT REASONABLY BE CONSTRUED AS INCLUDING A RETIRED ARMY OFFICER.

YOU ARE ADVISED, THEREFORE, THAT THE EMPLOYMENT OF COLONEL WATTS AS AN EMPLOYEE UNDER THE BUREAU OF THE CENSUS AS IN DIRECT CONTRAVENTION OF THE ACT OF 1894 AS AMENDED, SUPRA, AND THE VOUCHER PRESENTED TO THIS OFFICE MAY NOT BE CERTIFIED FOR PAYMENT.