B-16444, JUNE 14, 1941, 20 COMP. GEN. 885

B-16444: Jun 14, 1941

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A PUBLIC HEALTH SERVICE OFFICER IS NOT PRECLUDED BY THE PROHIBITION IN SECTION 1222. AS FOLLOWS: YOUR DECISION IS REQUESTED AS TO WHETHER SENIOR SANITARY ENGINEER RALPH E. YOUR DECISION ALSO IS REQUESTED AS TO WHETHER MR. THE DECISION OF YOUR OFFICE THAT UNDER THE LAW ESTABLISHING THE SAME PAY AND ALLOWANCES FOR COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE AS ARE AUTHORIZED FOR OFFICERS OF THE MEDICAL CORPS OF THE ARMY. A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE WAS NOT ENTITLED TO PAY WHILE SERVING AS A HEALTH OFFICER OF A STATE. THE COMMISSION IS ESTABLISHED BY AN INTERSTATE COMPACT WHICH WAS CONSENTED TO BY CONGRESS IN PUBLIC RESOLUTION NUMBER 93. A COPY OF WHICH IS ENCLOSED.

B-16444, JUNE 14, 1941, 20 COMP. GEN. 885

PUBLIC HEALTH SERVICE OFFICERS - EXTENT OF ASSIMILATION WITH ARMY OFFICERS STATUTES ASSIMILATING THE PAY AND ALLOWANCES OF ONE SERVICE WITH THOSE OF ANOTHER CARRY WITH THEM THE RESTRICTIONS AND LIMITATIONS DIRECTLY APPLICABLE TO THE PAY, ETC., OF THE LATTER SERVICE. THE ACT OF APRIL 9, 1930, ASSIMILATING PUBLIC HEALTH SERVICE OFFICERS WITH ARMY MEDICAL CORPS OFFICERS, DID NOT SUBJECT THE FORMER TO RULES OF MILITARY DISCIPLINE AND STATUS, SO THAT, UNLESS DETAILED TO THE ARMY, A PUBLIC HEALTH SERVICE OFFICER IS NOT PRECLUDED BY THE PROHIBITION IN SECTION 1222, REVISED STATUTES, AGAINST AN ARMY OFFICER ACCEPTING A CIVILIAN OFFICE, FROM ACCEPTING, AND TAKING THE OATH OF OFFICE UNDER, AN APPOINTMENT BY THE PRESIDENT WITHOUT COMPENSATION AS A MEMBER OF THE INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN. 11 COMP. GEN. 356, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 14, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 26, 1941, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER SENIOR SANITARY ENGINEER RALPH E. TARBETT, A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, MAY ACCEPT AN APPOINTMENT, WHICH HAS BEEN MADE BY THE PRESIDENT OF THE UNITED STATES, TO SERVE AS A MEMBER OF THE INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN, WITHOUT INVALIDATING HIS COMMISSION IN THE PUBLIC HEALTH SERVICE OR HIS RIGHT TO RECEIVE COMPENSATION UNDER SAID COMMISSION. SINCE THE OFFICE OF THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT OF STATE HAS REQUESTED THAT MR. TARBETT EXECUTE STANDARD FORM NO. 8, OATH OF OFFICE, PRESCRIBED BY SECTION 1757 OF THE REVISED STATUTES, YOUR DECISION ALSO IS REQUESTED AS TO WHETHER MR. TARBETT MAY TAKE SUCH OATH WITHOUT INVALIDATING HIS COMMISSION OR HIS RIGHT TO RECEIVE COMPENSATION THEREUNDER, OR WHETHER HE MAY ACCEPT THE APPOINTMENT WITHOUT TAKING THE OATH.

THESE QUESTIONS ARISE BY VIRTUE OF THE OPINION OF THE ATTORNEY GENERAL THAT THE STATUTORY PROHIBITION AGAINST ARMY OFFICERS ON THE ACTIVE LIST HOLDING CIVIL OFFICE EXTENDS TO STATE AS WELL AS TO FEDERAL OFFICES, 13 O.A.G. 310 (1870); AND THE DECISION OF YOUR OFFICE THAT UNDER THE LAW ESTABLISHING THE SAME PAY AND ALLOWANCES FOR COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE AS ARE AUTHORIZED FOR OFFICERS OF THE MEDICAL CORPS OF THE ARMY, A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE WAS NOT ENTITLED TO PAY WHILE SERVING AS A HEALTH OFFICER OF A STATE, 11 COMP. GEN. 356 (1932); AND BY VIRTUE OF THE FACT THAT THE INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN DOES NOT APPEAR TO BE STRICTLY A STATE NOR A FEDERAL ESTABLISHMENT.

THE COMMISSION IS ESTABLISHED BY AN INTERSTATE COMPACT WHICH WAS CONSENTED TO BY CONGRESS IN PUBLIC RESOLUTION NUMBER 93, 76TH CONGRESS, APPROVED JULY 11, 1940, A COPY OF WHICH IS ENCLOSED. ASSET FORTH IN THAT PUBLIC RESOLUTION, THE STATE OF MARYLAND, THE COMMONWEALTH OF VIRGINIA, AND THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE APPROVED THE COMPACT. I AM INFORMED THAT, SUBSEQUENT TO THE DATE OF THE PUBLIC RESOLUTION, THE STATE OF WEST VIRGINIA ALSO APPROVED IT, AND THAT THE REMAINING SIGNATORY BODY, THE COMMONWEALTH OF PENNSYLVANIA, NOW HAS IT UNDER CONSIDERATION.

THE COMMISSION IS TO BE COMPOSED OF THREE MEMBERS FROM EACH SIGNATORY BODY AND THREE MEMBERS APPOINTED BY THE PRESIDENT OF THE UNITED STATES. IT IS STATED IN THE COMPACT THAT THE COMMISSIONERS, OTHER THAN THOSE APPOINTED BY THE PRESIDENT, SHALL BE CHOSEN IN A MANNER AND FOR THE TERMS PROVIDED BY THE LAW OF THE SIGNATORY BODY FROM WHICH THEY ARE APPOINTED AND SHALL SERVE WITHOUT COMPENSATION FROM THE COMMISSION. NO PROVISION IS MADE REGARDING THE TERM OR THE COMPENSATION OF MEMBERS APPOINTED BY THE PRESIDENT. NEITHER IS ANY PROVISION MADE REGARDING THE TAKING OF OATHS OF OFFICE.

THE MONIES NECESSARY TO FINANCE THE COMMISSION ARE TO BE PROVIDED THROUGH APPROPRIATIONS FROM THE SIGNATORY BODIES AND THE UNITED STATES IN THE MANNER PRESCRIBED BY THE RESPECTIVE LAWS OF EACH, WITH A PROVISO THAT THE TOTAL OF SUCH SUMS FROM THE SIGNATORY BODIES SHALL NOT EXCEED $30,000 A YEAR.

THE FUNCTIONS OF THE COMMISSION APPEAR TO BE ESSENTIALLY OF A FACT FINDING AND RECOMMENDING NATURE IN THE FIELD OF STREAM POLLUTION GENERALLY, AND WITH SPECIFIC REFERENCE TO THE AREA DRAINED BY THE POTOMAC RIVER AND ITS TRIBUTARIES. THE FIELD OBVIOUSLY IS ONE IN WHICH THE PUBLIC HEALTH SERVICE IS INTERESTED BY VIRTUE OF THE PROVISIONS OF THE U.S.C. TITLE 42, SECTION 7, WHICH AUTHORIZE THE SERVICE TO STUDY AND INVESTIGATE SANITATION AND SEWAGE, AND THE POLLUTION EITHER DIRECTLY OR INDIRECTLY OF THE NAVIGABLE STREAMS AND LAKES OF THE UNITED STATES. INDEED, THE WORK OF THE COMMISSION AND OF THE PUBLIC HEALTH SERVICE IS SO CLOSELY ALLIED THAT IF AN OFFICER OF THE PUBLIC HEALTH SERVICE WERE NOT TO BE A MEMBER OF THE COMMISSION, IT WOULD BE NECESSARY TO ASSIGN PUBLIC HEALTH SERVICE PERSONNEL TO WORK AND COOPERATE WITH THE COMMISSION AS A PART OF THE REGULAR DUTIES OF SUCH PERSONNEL.

IN THE CASE OF MR. TARBETT, IT IS ANTICIPATED THAT MEMBERSHIP ON THE COMMISSION WOULD REQUIRE ONLY PART OF HIS TIME. MOREOVER, HIS WORK AS A MEMBER WOULD IN LARGE MEASURE BE SUBSTANTIALLY THE SAME AS HIS REGULAR DUTIES IN THE PUBLIC HEALTH SERVICE. MAY I SAY, THEREFORE, THAT IT IS HOPED THAT MR. TARBETT MAY BE PERMITTED TO SERVE AS A MEMBER OF THE COMMISSION AND CONTINUE TO DRAW HIS SALARY AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE.

THE PUBLIC RESOLUTION OF JULY 11, 1940, 54 STAT. 748, AFTER RECITING IN ITS PREAMBLE THE TERMS OF THE PROJECTED COMPACT TO ESTABLISH AN INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN, ROVIDES:

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE CONSENT OF CONGRESS IS HEREBY GIVEN TO THE STATES OF MARYLAND AND WEST VIRGINIA AND THE COMMONWEALTHS OF VIRGINIA AND PENNSYLVANIA AND THE DISTRICT OF COLUMBIA TO ENTER INTO THE COMPACT HEREINBEFORE RECITED, AND TO EACH AND EVERY PART AND ARTICLE THEREOF: PROVIDED, THAT NOTHING CONTAINED IN SUCH COMPACT SHALL BE CONSTRUED AS IMPAIRING OR IN ANY MANNER AFFECTING ANY RIGHT OR JURISDICTION OF THE UNITED STATES IN AND OVER THE REGION WHICH FORMS THE SUBJECT OF THIS COMPACT.

SEC. 2. THE RIGHT TO ALTER, AMEND, OR REPEAL THIS JOINT RESOLUTION IS HEREBY EXPRESSLY RESERVED.

ARTICLE I OF THE COMPACT MAKES THE FOLLOWING PROVISION FOR THE APPOINTMENT OF THE COMMISSIONERS:

THE INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN SHALL CONSIST OF THREE MEMBERS FROM EACH SIGNATORY BODY AND THREE MEMBERS APPOINTED BY THE PRESIDENT OF THE UNITED STATES. SAID COMMISSIONERS, OTHER THAN THOSE APPOINTED BY THE PRESIDENT, SHALL BE CHOSEN IN A MANNER AND FOR THE TERMS PROVIDED BY LAW OF THE SIGNATORY BODY FROM WHICH THEY ARE APPOINTED AND SHALL SERVE WITHOUT COMPENSATION FROM THE COMMISSION, BUT SHALL BE PAID BY THE COMMISSION THEIR ACTUAL EXPENSES INCURRED AND INCIDENT TO THE PERFORMANCE OF THEIR DUTIES.

YOUR DOUBT IN THE MATTER OF THE DESIGNATION OF A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE AS A MEMBER OF THE INTERSTATE COMMISSION ARISES FROM THE POSSIBLE APPLICATION OF SECTION 1222 OF THE REVISED STATUTES (10 U.S.C. 576), WHICH WAS CONSIDERED IN THE DECISION OF THE FORMER COMPTROLLER GENERAL, AND IN THE OPINION OF FORMER ATTORNEY GENERAL AKERMAN, CITED IN YOUR LETTER. THE STATUTE READS:

NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OF APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.

THE DECISION APPEARING IN 11 COMP. GEN. 356, QUOTED SECTION 9 OF THE ACT OF APRIL 9, 1930, 46 STAT. 151 (42 U.S.C. 37), READING---

HEREAFTER COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, AFTER EXAMINATION UNDER REGULATIONS APPROVED BY THE PRESIDENT, SHALL BE PROMOTED ACCORDING TO THE SAME LENGTH OF SERVICE AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED FOR OFFICERS OF CORRESPONDING GRADES OF THE MEDICAL CORPS OF THE ARMY, * * * AS WELL AS AN EARLIER STATUTE WHICH, IN GENERAL, ASSIMILATES THE LEAVE PRIVILEGES OF THE PUBLIC HEALTH SERVICE OFFICERS TO THOSE OF ARMY OFFICERS--- WHO ARE LIMITED BY LAW TO "HALF PAY" DURING PERIODS OF EXTENDED LEAVE. SINCE AN ARMY OFFICER COULD NOT RECEIVE EVEN THE "HALF PAY" SO PROVIDED IF HIS LEAVE WERE FOR THE PURPOSE OF ACCEPTING A CIVIL OFFICE (SECTION 1222, REVISED STATUTES, SUPRA) IT WAS HELD THAT A PUBLIC HEALTH SERVICE OFFICER LIKEWISE WAS NOT ENTITLED TO "HALF PAY" AS ON LEAVE OF ABSENCE FOR A LIKE PURPOSE. NO SUCH QUESTION ARISES HERE, SINCE THE PRESENT CASE INVOLVES NOT A QUESTION OF PAY DURING A PERIOD OF LEAVE OF ABSENCE, BUT OF THE RIGHT TO PAY FOR THE PERFORMANCE OF A DUTY REGULARLY ASSIGNED TO THE OFFICER AS A DEFINITE PUBLIC HEALTH SERVICE FUNCTION AND A PART OF THE SERVICES TO BE EXPECTED OF THE OFFICER UNDER HIS ACTIVE COMMISSIONED STATUS. THE FORMER DECISION AS TO PAY WHILE IN LEAVE STATUS WAS IN ACCORD WITH THE RULE THAT STATUTES ASSIMILATING THE PAY AND ALLOWANCES OF ONE SERVICE WITH THOSE OF ANOTHER CARRY WITH THEM THE RESTRICTIONS AND LIMITATIONS DIRECTLY APPLICABLE TO THE PAY, ETC., OF THE LATTER SERVICE. SEE 12 COMP. GEN. 653; 1 ID. 454, AND THE DECISIONS THERE CITED.

OVER THE COURSE OF MANY YEARS THE STATUTES--- MANY OF WHICH ARE COLLECTED IN 42 U.S.C., CHAPTERS 1, 2, AND 3A--- HAVE ENJOINED UPON THE PUBLIC HEALTH SERVICE AND ITS PREDECESSOR AGENCIES A BROAD MEASURE OF JOINT AND COOPERATIVE EFFORT WITH OTHER FEDERAL AGENCIES AND WITH THE VARIOUS STATES IN THE INVESTIGATION AND ENFORCEMENT OF MATTERS PERTAINING TO PUBLIC HEALTH. PECULIARLY APPOSITE HERE IS SECTION 7, TITLE 42, U.S.C. SEE, ALSO, 2 COMP. GEN. 634; 19 ID. 237, 246. IN THE LIGHT OF THAT POLICY IT MAY APPEAR THAT THE ACT OF 1930, SUPRA, WAS NOT INTENDED TO BE APPLIED LITERALLY IF SUCH APPLICATION WOULD IMPEDE THE PROPER PERFORMANCE OF THOSE FUNCTIONS. CF. 19 COMP. GEN. 826.

THAT, AS A MATTER OF ADMINISTRATION, SUCH PERFORMANCE MAY REQUIRE THE ACTUAL ACCEPTANCE OF A STATE OR LOCAL OFFICE BY AN OFFICER OF THE PUBLIC HEALTH SERVICE HAS BEEN DETERMINED BY EXECUTIVE ORDER, NO. 5700, OF AUGUST 31, 1931, WHICH READS AS FOLLOWS:

EXECUTIVE ORDER, NO. 9, OF JANUARY 17, 1873, IS HEREBY AMENDED SO AS TO PERMIT OFFICERS OF THE PUBLIC HEALTH SERVICE, UPON RECOMMENDATION OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE AND THE APPROVAL OF THE SECRETARY OF THE TREASURY, TO HOLD OFFICE IN STATE, TERRITORIAL, OR LOCAL HEALTH ORGANIZATIONS, IN ORDER TO COOPERATE WITH AND AID STATE, TERRITORIAL, OR LOCAL HEALTH DEPARTMENTS; AND TO PERMIT STATE, TERRITORIAL, OR LOCAL HEALTH OFFICIALS OR EMPLOYEES, UNLESS PROHIBITED BY LAW, TO HOLD OFFICE IN THE PUBLIC HEALTH SERVICE WHEN THE SURGEON GENERAL AND THE SECRETARY OF THE TREASURY DEEM SUCH EMPLOYMENT NECESSARY TO SECURE A MORE EFFICIENT ADMINISTRATION OF THE DUTIES IMPOSED UPON THE PUBLIC HEALTH SERVICE.

BY ITS TERMS, SECTION 1222, REVISED STATUTES, IS A RESTRICTION UPON OFFICERS OF THE ARMY ON THE ACTIVE LIST, AND ITS CONSEQUENCE IS TO ENACT THE PENALTY OF FORFEITURE OF COMMISSION FOR THE ACCEPTING OF A CIVIL OFFICE BY AN ARMY OFFICER. THE SECTION APPEARED ORIGINALLY IN H.R. 987 OF THE FORTY-FIRST CONGRESS, SECOND SESSION, AND WAS INSERTED, ACCORDING TO THE EXPLANATION APPEARING IN 91 CONGRESSIONAL GLOBE 1852, IN THE VIEW THAT IT IS "* * * INCONSISTENT WITH OUR SYSTEM OF GOVERNMENT TO APPOINT MILITARY OFFICERS TO CIVIL POSITIONS.' THAT BILL WAS INCORPORATED IN THE ARMY APPROPRIATION ACT FOR 1871, AND BECAME SECTION 18 OF THE ACT OF JULY 15, 1870, 16 STAT. 319. THE CITED OPINION OF THE ATTORNEY GENERAL (13 OPS. 310) WAS RENDERED SHORTLY THEREAFTER, ON AUGUST 10, 1870, AND THAT CONTEMPORARY OPINION IS SIGNIFICANT THAT THE CONGRESSIONAL PURPOSE WAS "TO DISENCUMBER ARMY OFFICERS OF EVERY SPECIES OF OFFICIAL DUTY NOT BELONGING TO THEIR MILITARY PROFESSION * * *.' TO A SIMILAR EFFECT, SEE 25 COMP. DEC. 666; 1 COMP. GEN. 499, 501; 29 OP. ATTY. GEN. 298; 35 ID. 187. OTHER WORDS, THAT SECTION WAS A STATUTORY EXPRESSION OF THE INCOMPATIBILITY INHERENT IN THE HOLDING OF A CIVIL OFFICE--- STATE OR FEDERAL--- BY AN ARMY OFFICER ON THE ACTIVE LIST. CF. BADEAU V. UNITED STATES, 130 U.S. 439, AND 18 COMP. GEN. 213.

IT IS CLEAR THAT PRIOR TO THE ENACTMENT OF THE 1930 STATUTE QUOTED ABOVE, IT HAD NOT BEEN CONSIDERED THAT THE PUBLIC HEALTH SERVICE WAS A PART OF THE MILITARY FORCE, OR THAT ITS COMMISSIONED OFFICERS WERE AMENABLE TO MILITARY LAW. AS IT WAS STATED IN 3 COMP. GEN. 16,"THE PUBLIC HEALTH SERVICE IS NOT A PART OF THE MILITARY FORCES OF THE NATION, BUT IS A PART OF THE CIVIL GOVERNMENT. 27 COMP. DEC. 153; 24 ID. 98.' NOTWITHSTANDING THAT CERTAIN FORMS OF MILITARY ORGANIZATION HAVE BEEN ADOPTED BY THE PUBLIC HEALTH SERVICE, AND THAT "BOARDS OF INVESTIGATION" ARE CONVENED FOR THE ENFORCEMENT OF DISCIPLINE--- BUT WITHOUT POWER TO INFLICT CORPORAL PUNISHMENT, FINES, IMPRISONMENT OR FORFEITURES ( REGULATIONS OF 1931, PARAGRAPHS 316-389/--- THE ONLY EXTENT TO WHICH THE OFFICERS OF THE SERVICE WERE SUBJECTED TO THE RULES GOVERNING THE ARMY WOULD SEEM TO HAVE BEEN INDICATED BY THE JOINT RESOLUTION OF JULY 9, 1917, 40 STAT. 242 (42 U.S.C. 20), WHICH READS:

THAT WHEN OFFICERS OF THE UNITED STATES PUBLIC HEALTH SERVICE ARE SERVING ON COAST GUARD VESSELS IN TIME OF WAR, OR ARE DETAILED IN TIME OF WAR FOR DUTY WITH THE ARMY OR NAVY IN ACCORDANCE WITH LAW, THEY SHALL BE ENTITLED TO PENSIONS FOR THEMSELVES AND WIDOWS AND CHILDREN, IF ANY, AS ARE NOW PROVIDED FOR OFFICERS OF CORRESPONDING GRADE AND LENGTH OF SERVICE OF THE COAST GUARD, ARMY OR NAVY, AS THE CASE MAY BE, AND SHALL BE SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE SERVICE TO WHICH THEY ARE RESPECTIVELY DETAILED. THUS, THE QUESTION IS WHETHER THE WORDS OF ASSIMILATION IN THE 1930 STATUTE,"SHALL RECEIVE THE SAME PAY AND ALLOWANCES," WERE INTENDED TO ALTER THE CIVILIAN STATUS OF THE OFFICERS OF THE PUBLIC HEALTH SERVICE, AND TO SUBJECT THEM TO SUCH RULES OF MILITARY DISCIPLINE AS MIGHT, IN THE ARMY, ULTIMATELY AFFECT THE ACCRUAL OF ARMY PAY AND ALLOWANCES. FOR PURPOSES INTIMATELY CONNECTED WITH SUCH PAYMENTS- -- AS THE REQUIREMENTS AS TO SERVICE NEEDED FOR PROMOTION, MILEAGE AND SUBSISTENCE FOR TRAVEL, LEAVES OF ABSENCE, AND THE LIKE--- THE ARMY REGULATIONS PROPERLY GOVERN, IN VIEW OF THE LANGUAGE QUOTED. 12 COMP. GEN. 653; 11 ID. 356; A-42919, AUGUST 17, 1932; A-32607, AUGUST 4, 1930; AND A-90625, JANUARY 24, 1938. HOWEVER, AS TO MATTERS OF DISCIPLINE AND STATUS, THE LEGISLATIVE HISTORY OF THE STATUTE WOULD INDICATE OTHERWISE. H.R. 8807, WHICH BECAME THE ACT OF APRIL 9, 1930, WAS A REPETITION IN SUBSTANCE OF H.R. 11026 OF THE PREVIOUS (SEVENTIETH) CONGRESS, WHICH HAD RECEIVED A PRESIDENTIAL VETO, ONE OF THE GROUNDS FOR WHICH WAS STATED AS FOLLOWS:

* * * THERE SHOULD BE ELIMINATED FROM THE LEGISLATION ANY PROVISION WHICH GIVES A MILITARY STATUS TO OFFICERS OR EMPLOYEES OF THE SERVICE ENGAGED IN SCIENTIFIC PURSUITS. THE COMMITTEE REPORTS ON THE NEW BILL ( HOUSE REPORT 542, SENATE REPORT 101, 71ST CONGRESS) EMPHASIZE THAT---

THIS PHASE OF THE MEASURE HAS BEEN CORRECTED AND WE BELIEVE THAT ALL MILITARISM HAS BEEN ELIMINATED FROM THIS BILL.

NO CONTRARY SUGGESTION APPEARS AND, IN VIEW OF THAT BACKGROUND, IT MAY BE CONCLUDED THAT THE ACT OF APRIL 9, 1930, DID NOT CONTEMPLATE THE ADOPTION FOR THE PUBLIC HEALTH SERVICE OF THE DIVERSE STATUTES AND REGULATIONS GOVERNING OFFICERS OF THE ARMY IN THEIR PURELY MILITARY STATUS, OTHER THAN TO THE LIMITED EXTENT ABOVE INDICATED.

IN THE SPECIFIC MATTER OF SENIOR SANITARY ENGINEER TARBETT, YOU ARE ADVISED THAT HIS ACCEPTANCE OF AN APPOINTMENT WITHOUT COMPENSATION AS A MEMBER OF THE INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN WILL NOT INVALIDATE HIS PUBLIC HEALTH SERVICE COMMISSION OR HIS RIGHT TO PAY THEREUNDER. THERE SHOULD NOT, HOWEVER, BE OVERLOOKED THE EFFECT OF THE JOINT RESOLUTION OF JULY 9, 1917, SUPRA, AND THE SIMILAR PROVISION IN THE ACT OF JULY 1, 1902, 32 STAT. 713, 42 U.S.C. 8, AND EXECUTIVE ORDER NO. 2571 OF APRIL 3, 1917. IN THE EVENT OF MR. TARBETT'S DETAIL TO THE ARMY AS THERE DESCRIBED, HE WOULD THEN BECOME SUBJECT TO THE MILITARY LAWS, AND TO RETAIN HIS STATUS IT WOULD BE INCUMBENT UPON HIM FORTHWITH TO RESIGN HIS MEMBERSHIP ON THE INTERSTATE COMMISSION.

WHETHER THE REQUIREMENT OF SECTION 1757, REVISED STATUTES, THAT OFFICERS OF THE UNITED STATES SHALL TAKE AN OATH OF OFFICE HAS ANY APPLICATION HERE IS NOT PRIMARILY FOR THIS OFFICE TO DECIDE. HOWEVER, IT MAY BE SUGGESTED THAT THE PUBLIC RESOLUTION OF JULY 11, 1940, SUPRA, DOES NOT PROVIDE OR EVEN INDICATE THAT ANY OF THE COMMISSIONERS ARE TO HOLD FEDERAL OFFICES. IT IS AXIOMATIC THAT AN OFFICE MUST BE CREATED BY LAW (4 COMP. DEC. 92; ID. 696), AND NEITHER THE FACT THAT THE SEVERAL STATES SIGNING THE COMPACT HAVE JOINED IN REQUESTING THE PRESIDENT TO SELECT THREE MEMBERS OF THEIR COMMISSION, NOR THAT CONGRESS, PURSUANT TO ARTICLE 1, SECTION 10, OF THE CONSTITUTION, HAS INDICATED ITS FORMAL CONSENT TO THE ACTION WHICH THE STATES HAVE TAKEN, WOULD SEEM TO HAVE ANY EFFECT TO CREATE AN OFFICE FOR WHICH THE STATUTES DO NOT PROVIDE. THAT THE OMISSION WAS NOT AN UNINTENDED OVERSIGHT IS INDICATED BY PUBLIC LAW NO. 739, APPROVED THE SAME DAY--- JULY 11, 1940, 54 STAT. 752, GIVING CONGRESSIONAL CONSENT TO THE OHIO RIVER VALLEY SANITATION COMPACT. THEREIN A SEPARATE PROVISION WAS ADDED TO THE STATUTE--- NOT TO THE COMPACT--- FOR COMMISSIONERS "TO REPRESENT THE UNITED STATES," AND TO BE APPOINTED BY THE PRESIDENT. HOWEVER, IF SIMILAR PROVISION SHOULD BE MADE FOR MR. TARBETT'S COMMISSIONERSHIP, NO CHANGE IN HIS STATUS AS AN OFFICER OF THE PUBLIC HEALTH SERVICE WOULD APPEAR TO RESULT FROM HIS EXECUTION OF THE USUAL OATH OF OFFICE FOR THE OTHER POSITION.