A-57587, SEPTEMBER 17, 1934, 14 COMP. GEN. 230

A-57587: Sep 17, 1934

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DOES NOT PROHIBIT A RETIRED COAST GUARD OFFICER WHO IS NOT HOLDING A FEDERAL CIVIL OFFICE FROM ACCEPTING A STATE OFFICE. 1934: THERE HAS BEEN RECEIVED YOUR LETTER OF RECENT DATE AS FOLLOWS: THE DEPARTMENT IS IN RECEIPT OF A TELEGRAM FROM DISTRICT COMMANDER GEORGE W. QUOTED HEREIN AS FOLLOWS: "REQUEST DECISION AS TO WHETHER MY RETIRED STATUS IN COAST GUARD WOULD BE AFFECTED IF I WAS ELECTED REPRESENTATIVE IN THE MASSACHUSETTS LEGISLATURE FOR PERIOD OF 2 YEARS AND TOOK SEAT. BOWLEY WAS PLACED ON THE RETIRED LIST OF COMMISSIONED OFFICERS OF THE COAST GUARD WITH THE RANK OF LIEUTENANT COMMANDER ON AUGUST 13. DISTRICT COMMANDER BOWLEY WAS RETIRED AFTER HAVING COMPLETED OVER 32 YEARS' SERVICE IN THE FORMER LIFE SAVING SERVICE AND COAST GUARD.

A-57587, SEPTEMBER 17, 1934, 14 COMP. GEN. 230

OFFICERS AND EMPLOYEES HOLDING STATE OFFICE - RETIRED COAST GUARD OFFICER THE EXECUTIVE ORDER OF JANUARY 17, 1873, PROHIBITING PERSONS HOLDING FEDERAL CIVIL OFFICE FROM ACCEPTING ANY STATE, TERRITORIAL, OR MUNICIPAL OFFICE, DOES NOT PROHIBIT A RETIRED COAST GUARD OFFICER WHO IS NOT HOLDING A FEDERAL CIVIL OFFICE FROM ACCEPTING A STATE OFFICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 17, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF RECENT DATE AS FOLLOWS:

THE DEPARTMENT IS IN RECEIPT OF A TELEGRAM FROM DISTRICT COMMANDER GEORGE W. BOWLEY, U.S. COAST GUARD, RETIRED, OF PROVINCETOWN, MASS., QUOTED HEREIN AS FOLLOWS:

"REQUEST DECISION AS TO WHETHER MY RETIRED STATUS IN COAST GUARD WOULD BE AFFECTED IF I WAS ELECTED REPRESENTATIVE IN THE MASSACHUSETTS LEGISLATURE FOR PERIOD OF 2 YEARS AND TOOK SEAT; IF SO, HOW.'

DISTRICT COMMANDER GEORGE W. BOWLEY WAS PLACED ON THE RETIRED LIST OF COMMISSIONED OFFICERS OF THE COAST GUARD WITH THE RANK OF LIEUTENANT COMMANDER ON AUGUST 13, 1923, BY ORDER OF THE PRESIDENT OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 6 OF THE ACT APPROVED APRIL 12, 1902, AS EXTENDED BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, BY REASON OF THE FACT THAT A COAST GUARD RETIRING BOARD FOUND HIM PHYSICALLY INCAPACITATED FOR ACTIVE DUTY. DISTRICT COMMANDER BOWLEY WAS RETIRED AFTER HAVING COMPLETED OVER 32 YEARS' SERVICE IN THE FORMER LIFE SAVING SERVICE AND COAST GUARD. HE IS, THEREFORE, ENTITLED TO RETIRED PAY OF THREE-FOURTHS OF THE ACTIVE-DUTY RATE OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS' SERVICE IN THE FIFTH PAY PERIOD AND AS BEING PAID RETIRED PAY IN THE AMOUNT OF $328.13 PER MONTH, LESS A DEDUCTION OF $16.41 UNDER THE PROVISIONS OF THE ACT OF MARCH 28, 1934.

AFTER SEVERAL COMMUNICATIONS BETWEEN COAST GUARD HEADQUARTERS AND DISTRICT COMMANDER BOWLEY, RETIRED, THE MATTER WAS BROUGHT TO THE ATTENTION OF THE DEPARTMENT AND ON AUGUST 31, 1934, HE WAS ADVISED THAT THE DEPARTMENT CONSIDERED THAT EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873, MIGHT AFFECT HIS RETIRED STATUS AND CAUSE HIS RETIRED PAY TO CEASE FROM THE DATE OF ACCEPTANCE OF A STATE OFFICE. THIS MATTER IS, THEREFORE, REFERRED TO YOU WITH THE REQUEST THAT YOU ADVISE THE DEPARTMENT AS TO WHETHER OR NOT THE RETIRED PAY OF DISTRICT COMMANDER BOWLEY WOULD BE AFFECTED BY HIM OCCUPANCY OF A SEAT IN THE MASSACHUSETTS LEGISLATURE IFHE IS ELECTED.

THE EXECUTIVE ORDER OF JANUARY 17, 1873, PROVIDES:

* * * FROM AND AFTER THE 4TH DAY OF MARCH, A.D. 1873 (EXCEPT AS HEREIN SPECIFIED), PERSONS HOLDING ANY FEDERAL CIVIL OFFICE BY APPOINTMENT UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES WILL BE EXPECTED, WHILE HOLDING SUCH OFFICE, NOT TO ACCEPT OR HOLD ANY OFFICE UNDER ANY STATE OR TERRITORIAL GOVERNMENT, OR UNDER THE CHARTER OR ORDINANCES OF ANY MUNICIPAL CORPORATION; AND, FURTHER, THAT THE ACCEPTANCE OR CONTINUED HOLDING OF ANY SUCH STATE, TERRITORIAL, OR MUNICIPAL OFFICE, WHETHER ELECTIVE OR BY APPOINTMENT, BY ANY PERSON HOLDING CIVIL OFFICE AS AFORESAID UNDER THE GOVERNMENT OF THE UNITED STATES, OTHER THAN JUDICIAL OFFICES UNDER THE CONSTITUTION OF THE UNITED STATES, WILL BE DEEMED A VACATION OF THE FEDERAL OFFICE HELD BY SUCH PERSON AND WILL BE TAKEN TO BE AND WILL BE TREATED AS A RESIGNATION BY SUCH FEDERAL OFFICER OF HIS COMMISSION OR APPOINTMENT IN THE SERVICE OF THE UNITED STATES. * * *

THE ACT OF JANUARY 28, 1915, 38 STAT. 800, COMBINED THE REVENUE CUTTER SERVICE AND THE LIFE SAVING SERVICE TO CREATE THE COAST GUARD---

* * * WHICH SHALL CONSTITUTE A PART OF THE MILITARY FORCES OF THE UNITED STATES AND WHICH SHALL OPERATE UNDER THE TREASURY DEPARTMENT IN TIME OF PEACE AND OPERATE AS A PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY, IN TIME OF WAR OR WHEN THE PRESIDENT SHALL SO DIRECT. * * *

IN LOUISVILLE AND NASHVILLE R.R. CO. V. THE UNITED STATES, 258 U.S. 374, THE SUPREME COURT HELD THAT MEMBERS OF THE COAST GUARD WERE NOT TROOPS OF THE UNITED STATES WITHIN THE MEANING OF THE LAND-GRANT ACTS WHEN THE COAST GUARD OPERATES UNDER AND AT THE EXPENSE OF THE TREASURY DEPARTMENT, BUT OTHERWISE THE COAST GUARD SEEMS TO BE A PART OF THE MILITARY FORCES OF THE UNITED STATES, THE SUPREME COURT IN THE CITED CASE REMARKING:

CONGRESS FURTHER MANIFESTED ITS INTENTION TO CLASS THE COAST GUARD WITH THE ARMY, NAVY, AND MARINE CORPS BY THE PROVISIONS OF THE ACTS OF AUGUST 29, 1916, C. 417, 39 STAT. 556, 600, 601, AND C. 418, SEC. 1, 39 STAT. 619, 649.

WHILE IT IS PROBABLE THE EXECUTIVE ORDER DID NOT CONTEMPLATE THE INCLUSION OF RETIRED OFFICERS OR EMPLOYEES OF THE CIVIL BRANCHES OF THE UNITED STATES, NO RETIREMENT FOR SUCH OFFICERS OR EMPLOYEES, EXCEPT JUDGES, HAVING BEEN PROVIDED AT THAT TIME, IN ANY EVENT, IT IS APPLICABLE ONLY TO PERSONS HOLDING FEDERAL CIVIL OFFICES. IT IS CONCLUDED THAT A RETIRED OFFICER OF THE COAST GUARD DOES NOT HOLD A FEDERAL CIVIL OFFICE WITHIN THE MEANING OF THE EXECUTIVE ORDER, AND THIS OFFICE KNOWS OF NO OBJECTION TO A RETIRED OFFICER OF THE COAST GUARD ACCEPTING AND HOLDING A STATE OFFICE.