B-110491, AUGUST 22, 1952, 32 COMP. GEN. 98

B-110491, AUGUST 22, 1952, 32 COMP. GEN. 98

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - EMPLOYMENT WITH PRIVATE CORPORATIONS SEIZED BY THE GOVERNMENT THE TERM "ANY CORPORATION" AS USED IN THE DOUBLE COMPENSATION RESTRICTION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, CONTEMPLATES CORPORATIONS WHICH PROPERLY MAY BE REGARDED AS INSTRUMENTALITIES OF THE UNITED STATES AND DOES NOT EMBRACE WHOLLY PRIVATE CORPORATIONS WHICH HAVE BEEN SEIZED BY THE GOVERNMENT UNDER THE TRADING WITH THE ENEMY ACT OF 1917, AS AMENDED, AND THEREFORE, SAID SECTION 212 IS NOT APPLICABLE TO A RETIRED ARMY OFFICER WHO ACCEPTS A POSITION WITH A CORPORATION WHICH HAS BEEN SEIZED AND IS BEING OPERATED BY THE UNITED STATES UNDER THE TRADING WITH THE ENEMY ACT OF 1917, AS AMENDED, AT A SALARY IN EXCESS OF $3,000 PER ANNUM.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, AUGUST 22, 1952:

REFERENCE IS MADE TO LETTER DATED JUNE 25, 1952, FROM THE ACTING SECRETARY OF DEFENSE, WITH ENCLOSURES, REQUESTING A DECISION (1) AS TO WHETHER SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, 5 U.S.C. 59A, IS APPLICABLE TO AN OFFICER OF THE ARMY, RETIRED FOR PHYSICAL DISABILITY IN LINE OF DUTY, BUT NOT THE RESULT OF COMBAT OR AN EXPLOSION OF AN INSTRUMENTALITY OF WAR, WHO ACCEPTS A FULL OR PART TIME POSITION AT A SALARY IN EXCESS OF $3,000 PER ANNUM, WITH A CORPORATION WHICH HAS BEEN SEIZED AND IS BEING OPERATED BY THE UNITED STATES GOVERNMENT UNDER THE TRADING WITH THE ENEMY ACT OF 1917, 40 STAT. 411, AS AMENDED; AND (2) IF THE ANSWER TO QUESTION (1) BE IN THE AFFIRMATIVE, WHETHER HIS EMPLOYMENT AS A CONSULTANT UPON A FIXED FEE BASIS WITH SUCH CORPORATION WOULD RESULT IN A DIFFERENT ANSWER.

IT IS INDICATED IN THE SUBMITTED PAPERS THAT THE RETIRED OFFICER HAS BEEN EMPLOYED AT VARIOUS TIMES DURING THE PERIOD 1947 THROUGH 1950 WITH TWO FOREIGN CORPORATIONS OF WHICH THE UNITED STATES GOVERNMENT HAS ACQUIRED THE MAJORITY OF THE CAPITAL STOCK UNDER THE AUTHORITY CONTAINED IN THE TRADING WITH THE ENEMY ACT OF 1917, SUPRA.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, IN PERTINENT PART, IS AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE * * * UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER * * * AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000 * * *. (ITALICS SUPPLIED.)

WHILE A LITERAL INTERPRETATION OF THE UNDERSCORED LANGUAGE IN THE ACT JUST QUOTED WOULD INDICATE THAT THE LIMITATION CONTAINED THEREIN APPLIES TO ANY AND ALL CORPORATIONS OF WHICH THE UNITED STATES OWNS A MAJORITY OF STOCK, YET AFTER CAREFUL ANALYSIS OF THE CONDITIONS AND CIRCUMSTANCES EXISTING AT THE TIME OF ENACTMENT OF THE AFORESAID LIMITATION IT IS NOT CONSIDERED THAT THE CONGRESS INTENDED ANY SUCH ABSOLUTE RESTRICTION. THIS OFFICE HAS BEEN ADVISED INFORMALLY BY THE OFFICE OF ALIEN PROPERTY THAT BY 1932, THE YEAR THE STATUTORY LIMITATION IN QUESTION WAS ENACTED, SEIZURES UNDER THE ACT OF OCTOBER 6, 1917, LONG SINCE HAD CEASED AND THAT AT THAT TIME THE UNITED STATES OWNED NO SUBSTANTIAL INTEREST IN PRIVATE CONCERNS WHICH FORMERLY HAD BEEN SEIZED UNDER SUCH STATUTE. MOREOVER, THERE HAS BEEN FOUND NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 212 EVIDENCING AN INTENT ON THE PART OF CONGRESS THAT THE TERM "ANY CORPORATION" SHOULD EMBRACE PRIVATE CORPORATIONS SEIZED BY THE UNITED STATES UNDER THE AUTHORITY OF THE TRADING WITH THE ENEMY ACT OF 1917, AS AMENDED. IN THAT CONNECTION, IT MAY BE POINTED OUT THAT IT IS A WELL-SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION THAT THE OPERATION OF A STATUTE IS TO BE RESTRAINED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE IT IS EVIDENT THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE WITHIN IT. SEE BREWER V. BLOUGHER, 14 PET. 178; UNITED STATES V. TRANS-MISSOURI FREIGHT ASSOCIATION, 166 U.S. 290; MCKEE V. UNITED STATES, 164 U.S. 287; AND PETRI V. COMMERCIAL NATIONAL BANK, 142 U.S. 644.

IN LINE WITH THE FOREGOING, IT REASONABLY MAY BE CONCLUDED THAT THE TERM,"ANY CORPORATION," AS USED IN SECTION 212, SUPRA, WAS DIRECTED, GENERALLY, TO SUCH CORPORATIONS--- THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES--- THAT ACTUALLY PERFORM GOVERNMENTAL FUNCTIONS; ARE SUBJECT TO GOVERNMENT CONTROL, AND PROPERLY MAY BE REGARDED AS INSTRUMENTALITIES OF THE UNITED STATES. CONVERSELY, THE SCOPE OF SUCH TERM WAS NOT INTENDED TO EMBRACE WHOLLY PRIVATE CORPORATIONS WHICH MAY HAVE BEEN SEIZED BY THE GOVERNMENT UNDER THE TRADING WITH THE ENEMY ACT OF 1917, AS AMENDED. THE FIRST QUESTION PRESENTED IN YOUR LETTER IS ANSWERED ACCORDINGLY, THUS RENDERING UNNECESSARY A REPLY TO THE ALTERNATIVE QUESTION.