A-4355, AUGUST 28, 1924, 4 COMP. GEN. 220

A-4355: Aug 28, 1924

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EFFECTIVE DATE OF PROMOTION OF A PUBLIC HEALTH SERVICE OFFICER AN OATH TAKEN BY A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE PRIOR TO HIS APPOINTMENT IN A HIGHER GRADE IS NOT EFFECTIVE TO ENTITLE HIM TO PAY OF THE HIGHER GRADE FROM THE DATE OF SUCH OATH. IS NOT ENTITLED TO PAY UNDER SAID APPOINTMENT PRIOR TO HIS ACCEPTANCE OF THE APPOINTMENT AFTER ITS ISSUANCE. 1924: THERE IS FOR CONSIDERATION THE QUESTION WHETHER EDWARD C. IS ENTITLED TO PAY AS SURGEON FROM JANUARY 16. WHICH WAS TAKEN PRIOR TO APPOINTMENT AND COMMISSION AS SUCH. THE NOMINATION MADE BY THE PRESIDENT WAS FORWARDED TO THE SENATE ON FEBRUARY 8. THE QUESTION IS WHETHER SURGEON ERNST IS ENTITLED TO PAY OF A SURGEON UNDER THAT COMMISSION FROM AND INCLUDING JANUARY 16.

A-4355, AUGUST 28, 1924, 4 COMP. GEN. 220

EFFECTIVE DATE OF PROMOTION OF A PUBLIC HEALTH SERVICE OFFICER AN OATH TAKEN BY A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE PRIOR TO HIS APPOINTMENT IN A HIGHER GRADE IS NOT EFFECTIVE TO ENTITLE HIM TO PAY OF THE HIGHER GRADE FROM THE DATE OF SUCH OATH. A PASSED ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE PROMOTED TO SURGEON BY APPOINTMENT CONFIRMED BY THE SENATE MARCH 5, 1924, AND COMMISSIONED MARCH 7, 1924, IS NOT ENTITLED TO PAY UNDER SAID APPOINTMENT PRIOR TO HIS ACCEPTANCE OF THE APPOINTMENT AFTER ITS ISSUANCE, AND AN OATH TAKEN JANUARY 16, 1924, DOES NOT ENTITLE HIM TO PAY OF THE HIGHER GRADE FROM THAT DATE.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 28, 1924:

THERE IS FOR CONSIDERATION THE QUESTION WHETHER EDWARD C. ERNST, SURGEON (REGULAR), PUBLIC HEALTH SERVICE, IS ENTITLED TO PAY AS SURGEON FROM JANUARY 16, 1924, DATE OF OATH, WHICH WAS TAKEN PRIOR TO APPOINTMENT AND COMMISSION AS SUCH.

IT APPEARS THAT A PERMANENT COMMISSION DATED MARCH 7, 1924, ISSUED APPOINTING PASSED ASSISTANT SURGEON EDWARD C. ERNST AS A SURGEON IN THE UNITED STATES PUBLIC HEALTH SERVICE (REGULAR), TO RANK AS SUCH FROM JANUARY 15, 1924. THE APPOINTMENT HAD BEEN TRANSMITTED TO THE WHITE HOUSE FEBRUARY 6, 1924. THE NOMINATION MADE BY THE PRESIDENT WAS FORWARDED TO THE SENATE ON FEBRUARY 8, 1924, AND THERE CONFIRMED MARCH 5, 1924.

THE QUESTION IS WHETHER SURGEON ERNST IS ENTITLED TO PAY OF A SURGEON UNDER THAT COMMISSION FROM AND INCLUDING JANUARY 16, 1924, DATE ON WHICH HE IS PURPORTED TO HAVE TAKEN OATH UNDER SAID APPOINTMENT, AND WHICH IS THE DATE OF RANK AS STATED IN COMMISSION.

IN 19 COMP. DEC. 632, IT WAS HELD THAT A PASSED ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE WHO HAS PASSED THE EXAMINATION FOR PROMOTION TO SURGEON AND BEEN NOMINATED, CONFIRMED, AND COMMISSIONED AS SUCH, IS NOT ENTITLED TO BE PAID AS SURGEON UNTIL HE HAS TAKEN THE OATH REQUIRED BY THE ACT OF MAY 13, 1884, 23 STAT. 22, AND PRESCRIBED BY SECTION 1757, REVISED STATUTES, AS FOLLOWS:

SEC. 1757. WHENEVER ANY PERSON WHO IS NOT RENDERED INELIGIBLE TO OFFICE BY THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION IS ELECTED OR APPOINTED TO ANY OFFICE OF HONOR OR TRUST UNDER THE GOVERNMENT OF THE UNITED STATES, AND IS NOT ABLE, ON ACCOUNT OF HIS PARTICIPATION IN THE LATE REBELLION, TO TAKE THE OATH PRESCRIBED, IN THE PRECEDING SECTION, HE SHALL, BEFORE ENTERING UPON THE DUTIES OF HIS OFFICE, TAKE AND SUBSCRIBE IN LIEU OF THAT OATH THE FOLLOWING OATH: "I, A B, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.'

THE SAME PRINCIPLE WAS HELD IN 2 COMP. GEN. 697, IN THE CASE OF AN ASSISTANT SURGEON PROMOTED TO PASSED ASSISTANT SURGEON. IN THAT CASE ASSISTANT SURGEON JOHN F. STEELE WAS ISSUED A COMMISSION AS PASSED ASSISTANT SURGEON, DATED OCTOBER 16, 1922, TO BE EFFECTIVE ON OCTOBER 19, 1922. DOCTOR STEELE TOOK OATH UNDER THAT COMMISSION ON OCTOBER 28, 1922, BUT MADE NO FURTHER FORMAL ACKNOWLEDGMENT OF ACCEPTANCE OF THE COMMISSION. THE QUESTION WAS WHETHER IN ORDER TO RENDER THE PROMOTION EFFECTIVE SO AS TO ENTITLE HIM TO PAY OF THE HIGHER GRADE ANY FURTHER FORMAL ACKNOWLEDGMENT OF ACCEPTANCE OF COMMISSION WAS NECESSARY, AND THE ANSWER WAS THAT DOCTOR STEELE WAS ENTITLED TO THE PAY OF A PASSED ASSISTANT SURGEON ON AND AFTER DATE HE EXECUTED OATH OF OFFICE; THAT IS, THE EXECUTION OF THE OATH WAS SUFFICIENT EVIDENCE OF ACCEPTANCE OF THE OFFICE, AND UPON ACCEPTING OFFICE AND ENTERING ON ITS DUTIES RIGHT TO THE EMOLUMENTS THEREOF ACCRUED.

THE LAW MAKES NO PROVISION FOR GIVING RETROACTIVE EFFECT TO THE COMMISSION NOR CAN IT BE MADE RETROACTIVE BY TAKING OATH IN ANTICIPATION OF THE COMMISSION BEING ISSUED. APPARENTLY, IN THIS CASE, DOCTOR ERNST IN ANTICIPATION THAT COMMISSION WOULD ISSUE, TOOK THE OATH ON JANUARY 16, 1924. HE COULD NOT HAVE BECOME INVESTED WITH THE OFFICE OF SURGEON PRIOR TO ISSUE OF APPOINTMENT TO THAT GRADE. THE OATH TAKEN PRIOR TO APPOINTMENT WAS NOT AN OATH IN RECOGNITION OF THE APPOINTMENT AND THEREFORE WAS NOT AN OATH WITHIN THE REQUIREMENT OF THE STATUTE. THE RATE OF PAY ATTACHES TO THE OFFICE AND PAY DOES NOT ACCRUE UNTIL THE OFFICER BECOMES LEGALLY INVESTED WITH THE OFFICE, NOTWITHSTANDING THE DATE OF RANK AS STATED IN THE COMMISSION MAY ANTEDATE THE COMMISSION.

ACCORDINGLY, THE OATH TAKEN BY DOCTOR ERNST ON JANUARY 16, 1924, IS NOT EFFECTIVE SO AS TO ENTITLE HIM TO PAY UNDER HIS COMMISSION AS SURGEON ISSUED MARCH 7, 1924, NOR IS IT EFFECTIVE TO AUTHORIZE PAY OF THE HIGHER GRADE FROM JANUARY 16, 1924.