B-47699, MARCH 3, 1945, 24 COMP. GEN. 645

B-47699: Mar 3, 1945

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHERE THE WORK SO PERFORMED WAS OF SUCH A NATURE AS COULD HAVE BEEN REQUIRED OF HIM BY VIRTUE OF HIS ASSIGNMENT TO WORK OF NATIONAL IMPORTANCE IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND REGULATIONS THEREUNDER. 1945: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31. ROBUTKA IS A CONSCIENTIOUS OBJECTOR ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER THE DIRECTION OF THE FOREST SERVICE. ROBUTKA WAS ON FURLOUGH GRANTED BY THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS. UPON EXECUTION OF A LOYALTY AND CITIZENSHIP AFFIDAVIT WAS EMPLOYED AS A TRUCK DRIVER AT AN HOURLY RATE FOR WORK ON TIMBER ACCESS ROAD CONSTRUCTION PROJECT WHERE MEN WERE BADLY NEEDED. IT IS HELD IN 22 COMP.

B-47699, MARCH 3, 1945, 24 COMP. GEN. 645

CONSCIENTIOUS OBJECTORS - COMPENSATION FOR SERVICES RENDERED WHILE ON FURLOUGH NO COMPENSATION MAY BE PAID TO A CONSCIENTIOUS OBJECTOR FOR WORK PERFORMED FOR A GOVERNMENT AGENCY WHILE ON FURLOUGH, WHERE THE WORK SO PERFORMED WAS OF SUCH A NATURE AS COULD HAVE BEEN REQUIRED OF HIM BY VIRTUE OF HIS ASSIGNMENT TO WORK OF NATIONAL IMPORTANCE IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND REGULATIONS THEREUNDER.

COMPTROLLER GENERAL WARREN TO L. BEAMAN, DEPARTMENT OF AGRICULTURE, MARCH 3, 1945:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1945, AS FOLLOWS:

THE ATTACHED PAY ROLL IN FAVOR OF WALTER ROBUTKA, IN THE AMOUNT OF $182.78, HAS BEEN SUBMITTED TO ME FOR CERTIFICATION AS AUTHORIZED CERTIFYING OFFICER.

MR. ROBUTKA IS A CONSCIENTIOUS OBJECTOR ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER THE DIRECTION OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE. FOR THE PERIOD COVERED BY THIS PAY ROLL, MR. ROBUTKA WAS ON FURLOUGH GRANTED BY THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS. WHILE ON FURLOUGH, HE APPEARED BEFORE ONE OF OUR EMPLOYMENT OFFICERS WITH A CLEARANCE FROM THE U.S. EMPLOYMENT SERVICE, AND UPON EXECUTION OF A LOYALTY AND CITIZENSHIP AFFIDAVIT WAS EMPLOYED AS A TRUCK DRIVER AT AN HOURLY RATE FOR WORK ON TIMBER ACCESS ROAD CONSTRUCTION PROJECT WHERE MEN WERE BADLY NEEDED.

IT IS HELD IN 22 COMP. GEN. 995, THAT CONSCIENTIOUS OBJECTORS WHO ARE ASSIGNED UNDER AUTHORITY OF THE SELECTIVE TRAINING AND SERVICE ACT TO WORK OF NATIONAL IMPORTANCE MAY NOT BE GIVEN TEMPORARY APPOINTMENTS AS CIVIL SERVANTS OR EMPLOYEES OF THE UNITED STATES. THIS DECISION DOES NOT SPECIFICALLY COVER CONSCIENTIOUS OBJECTORS WHILE IN FURLOUGH STATUS.

DECISION AS TO WHETHER I MAY PROPERLY CERTIFY THE ATTACHED VOUCHER FOR PAYMENT WILL BE APPRECIATED.

SECTION 5 (G) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 889, PROVIDES THAT PERSONS WHO, BY REASON OF RELIGIOUS TRAINING AND BELIEF, ARE FOUND TO BE CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM, MAY BE INDUCTED INTO THE LAND OR NAVAL FORCES AND ASSIGNED TO NONCOMBATANT SERVICE, OR IF FOUND TO BE CONSCIENTIOUSLY OPPOSED TO SUCH SERVICE MAY, IN LIEU OF SUCH INDUCTION, BE ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION. IT IS UNDERSTOOD THAT THE INDIVIDUAL HERE INVOLVED IS OF THE LATTER CLASS OF CONSCIENTIOUS OBJECTORS AND THAT HE WAS ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER THE SUPERVISION AND CONTROL OF THE FOREST SERVICE, PURSUANT TO THE AUTHORITY CONFERRED BY EXECUTIVE ORDER NO. 8675, DATED FEBRUARY 6, 1941. IT IS UNDERSTOOD FURTHER, THAT DURING A FURLOUGH (PRESUMABLY GRANTED BY THE CAMP DIRECTOR, WITH THE CONCURRENCE OF THE PROJECT SUPERINTENDENT OF THE FOREST SERVICE, IN ACCORDANCE WITH SECTION 69.16 OF THE SELECTIVE SERVICE REGULATIONS) HE WAS EMPLOYED AS A TRUCK DRIVER AT 85 CENTS AN HOUR BY AN EMPLOYMENT OFFICER OF THE FOREST SERVICE, AND THAT THE AMOUNT STATED ON THE SUBJECT VOUCHER COVERS THE SERVICES RENDERED IN SUCH CAPACITY.

THAT PORTION OF THE DECISION IN 22 COMP. GEN. 995, TO WHICH REFERENCE IS MADE IN YOUR LETTER, READS AS FOLLOWS:

MOREOVER, THERE IS ANOTHER FEATURE OF THE PLAN FOR WHICH THERE APPEARS NO AUTHORITY OF LAW NOR IS THERE SHOWN ANY NECESSITY FROM AN ADMINISTRATIVE STANDPOINT--- THAT IS, THE PROPOSAL THAT SUCH CONSCIENTIOUS OBJECTORS AS MAY BE ASSIGNED TO SURVEY OPERATIONS OF THE COAST AND GEODETIC SURVEY BE GIVEN TEMPORARY APPOINTMENTS UNDER SCHEDULE A, SUBDIVISION XI, PAR. 7, OF THE CIVIL SERVICE REGULATIONS. CERTAINLY THERE HAS BEEN FOUND NO INDICATION THAT THE CONGRESS EVER INTENDED THAT THE COOPERATION BETWEEN THE SELECTIVE SERVICE SYSTEM AND THE SEVERAL DEPARTMENTS OF THE GOVERNMENT WITH RESPECT TO THE ASSIGNMENT OF CONSCIENTIOUS OBJECTORS TO WORK OF NATIONAL IMPORTANCE WHOULD TAKE THE FORM OF AN APPOINTMENT AS A CIVIL SERVANT OR EMPLOYEE OF THE UNITED STATES.

IT WILL BE NOTED THAT THE STATEMENTS MADE IN THE SAID DECISION HAD REFERENCE TO THE FORM OR MANNER IN WHICH THE ASSIGNMENT TO "WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION" SHOULD BE EFFECTED AND SUCH STATEMENTS HAD NO REFERENCE TO A SITUATION SUCH AS IS INVOLVED IN THE PRESENT CASE. HOWEVER, IT WILL BE NECESSARY TO CONSIDER WHETHER THE STATUS OF CONSCIENTIOUS OBJECTOR ASSIGNED TO WORK OF NATIONAL IMPORTANCE CONSTITUTES A BAR TO COMPENSATION FOR SERVICES RENDERED UNDER THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER.

IT IS PROVIDED IN THE SELECTIVE SERVICE REGULATIONS THAT WHEN AN ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE IS RECEIVED BY A CONSCIENTIOUS OBJECTOR WHO HAS BEEN EXEMPTED FROM MILITARY SERVICE "IT SHALL BE HIS DUTY TO COMPLY THEREWITH, TO REPORT TO THE CAMP AT THE TIME AND PLACE DESIGNATED THEREIN, AND TO THEREAFTER PERFORM WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION FOR THE PERIOD, AT THE PLACE, AND IN THE MANNER PROVIDED BY LAW" ( SEC. 652.11); THAT WHEN THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS HAS BEEN AUTHORIZED TO OPERATE A CAMP, THE ENTIRE FINANCIAL RESPONSIBILITY FOR THE OPERATION THEREOF SHALL BE ASSUMED BY THE BOARD, INCLUDING THE CLOTHING, FEEDING, HOUSING, MEDICAL CARE, HOSPITALIZATION, WELFARE AND RECREATION OF ASSIGNEES ( SEC. 653.3 (D) ); THAT AN ASSIGNEE MAY BE EMPLOYED ON ANY AUTHORIZED WORK OF THE TECHNICAL AGENCY INVOLVED IN THE WORK PROGRAM OF THE CAMP" (691.21); AND THAT THE TECHNICAL AGENCY SHALL DETERMINE THE HOURS OF WORK FOR ASSIGNEES, NO LIMITATION BEING SET ON THE NUMBER OF HOURS AN ASSIGNEE MAY BE REQUIRED TO WORK IN ANY GIVEN DAY OR WEEK--- EXCEPT THAT 44 HOURS PER WEEK IS ESTABLISHED AS A MINIMUM; ALSO, AN ASSIGNEE IS SUBJECT TO EMERGENCY CALLS AT ANY HOUR OF THE DAY OR NIGHT (691.22).

IN UNITED STATES V. RYALS, 56 F.1SUPP. 772, IT WAS CONTENDED THAT THE PROVISIONS OF LAW AND REGULATIONS UNDER WHICH A CONSCIENTIOUS OBJECTOR IS ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION DEPRIVED HIM OF HIS LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW, IN VIOLATION OF THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION, AND IMPOSED UPON HIM INVOLUNTARY SERVITUDE OTHER THAN FOR CRIME, IN VIOLATION OF THE THIRTEENTH AMENDMENT. HOWEVER, THE COURT REJECTED SUCH CONTENTIONS, STATING:

* * * FROM THE BEGINNING THE COURTS HAVE HELD THAT THE CITIZEN OWES CERTAIN DUTIES TO THE GOVERNMENT AND PERFORMANCE OF THESE DUTIES MAY BE COMPELLED EVEN THOUGH THEY INVOLVE WORK WITHOUT COMPENSATION. * * * AND, IN WEIGHTMAN V. UNITED STATES, 142 F.2D 188, INVOLVING A PROSECUTION BASED UPON THE REFUSAL OF A CONSCIENTIOUS OBJECTOR TO PERFORM HIS ASSIGNED DUTIES WITH THE FOREST SERVICE, THE COURT SAID:

* * * IN VIEW OF THE BREADTH OF THE WAR POWER AS INDICATED BY THE ABOVE CASES AND THE CASES CITED THEREIN, WE HAVE NO DOUBT THAT THE SYSTEM DEVISED FOR THE TREATMENT OF PERSONS WHO BY REASON OF RELIGIOUS TRAINING AND BELIEF ARE CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM DOES NOT DEPRIVE THEM OF ANY OF THEIR CONSTITUTIONAL RIGHTS EVEN THOUGH, IN PRACTICAL EFFECT, IT DEPRIVES THEM OF THEIR FULL LIBERTY AND REQUIRES THEM TO WORK AT A RATE OF COMPENSATION FAR BELOW WHAT COULD BE EARNED IN CIVILIAN LIFE AND EVEN BELOW WHAT COULD BE EARNED IN THE ARMED FORCES.

THE CONCLUSION DRAWN FROM THE PROVISIONS OF THE STATUTE AND REGULATIONS ISSUED PURSUANT THERTO, AS WELL AS FROM THE LANGUAGE OF THE COURT DECISIONS SUSTAINING THE VALIDITY OF SUCH PROVISIONS, IS THAT THE SERVICES OF A CONSCIENTIOUS OBJECTOR FOR WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION ARE COMPLETELY AT THE DISPOSAL OF THE UNITED STATES GOVERNMENT DURING THE EXISTING EMERGENCY. HIS FREEDOM TO PURSUE PERSONAL ACTIVITIES IS RESTRAINED; HIS WELFARE, CONDUCT AND SOCIAL TREATMENT ARE CONTROLLED; AND HIS RIGHT TO THE FINANCIAL BENEFITS OF HIS LABOR IS LIMITED. COURSE, HE IS NOT A MEMBER OF THE ARMED FORCES; IN FACT, THE SELECTIVE TRAINING AND SERVICE ACT SPECIFICALLY PROVIDES THAT THE ASSIGNMENT TO CIVILIAN WORK OF NATIONAL IMPORTANCE SHALL BE "IN LIEU OF" INDUCTION INTO THE LAND OR NAVAL FORCES. HOWEVER, ALTHOUGH THE SERVICE HE IS REQUIRED TO PERFORM IS NOT OF A MILITARY NATURE, HIS OBLIGATION TO PERFORM IT IS TO BE COMPARED TO THE OBLIGATION OF A SOLDIER. SOMEWHAT THE SAME PRINCIPLE WAS LAID DOWN IN 24 COMP. GEN. 75, 78:

THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 IMPOSES ON MALES BETWEEN CERTAIN AGES WITHIN THE UNITED STATES A LIABILITY TO PERFORM DUTY AND SETS UP APPROPRIATE MACHINERY TO DEFINE AND SPECIFY THE DUTY DUE FROM EACH INDIVIDUAL. BRONEMANN V. UNITED STATES, 138 F.2D 333. THE SUPREME COURT OF THE UNITED STATES HAS SAID:

"* * * THE GOVERNMENT HAS THE RIGHT OT THE MILITARY SERVICE OF ALL ITS ABLE-BODIED CITIZENS; AND MAY, WHEN EMERGENCY ARISES, JUSTLY EXACT THAT SERVICE FROM ALL. IN RE GRIMLEY, 137 U.S. 147, 153. ALSO, SEE UNITED STATES V. CORNELL, 36 F.1SUPP. 81.'

IN UNITED STATES V. PACE, 46 F.1SUPP. 316, 317, INVOLVING A PROSECUTION FOR FAILURE TO COMPLY WITH AN ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE AS CONSCIENTIOUS OBJECTORS, IT WAS HELD:

"* * * THE POSITION OF DEFENDANTS IS THAT BECAUSE THEY ARE CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM, ETC., THEY MAY NOT BE REQUIRED TO PERFORM ANY SERVICE. BUT NOT SO. IT WAS THE DUTY OF THE BOARDS TO, AS THEY DID, ASSIGN DEFENDANTS TO WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION, AND DEFENDANTS HAVING REFUSED TO REPORT AND BEGIN WORK AS SO ASSIGNED ARE FOUND GUILTY UNDER SECTION 311 AS CHARGED.' THUS, IT WOULD SEEM THAT ALTHOUGH CONSCIENTIOUS OBJECTORS ARE RELIEVED FROM THE OBLIGATION TO BEAR ARMS, BY THE EXPRESS EXEMPTION IN SECTION (5) (G) OF SAID ACT, THE RIGHT OF THE UNITED STATES TO THE SERVICES OF SUCH PERSONS ON WORK OF NATIONAL IMPORTANCE IS NO LESS THAN ITS RIGHT TO THE MILITARY SERVICE OF THOSE INDUCTED INTO THE ARMED FORCES UNDER THE SAID ACT.

IT LONG HAS BEEN THE RULE THAT SERVICE RENDERED AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH SERVICE IN A CIVILIAN POSITION UNDER THE GOVERNMENT AND THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, AN ENLISTED MAN IN AN ACTIVE DUTY STATUS MAY NOT BE PAID COMPENSATION IN ADDITION TO THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR HIS GRADE. 3 COMP. GEN. 40; 17 ID. 1049; 18 ID. 213; 20 ID. 257; 22 ID. 127. EXPRESS STATUTORY AUTHORITY WAS REQUIRED TO PERMIT CIVILIAN EMPLOYEES ENTERING THE MILITARY SERVICE TO RECEIVE COMPENSATION IN THEIR CIVILIAN POSITIONS, COVERING THE PERIOD OF THEIR ACCUMULATED ANNUAL LEAVE, CONCURRENTLY WITH THEIR MILITARY PAY--- NAMELY, THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200. SEE, IN THIS CONNECTION, DEPARTMENTAL CIRCULAR NO. 505, DATED OCTOBER 24, 1944, UNITED STATES CIVIL SERVICE COMMISSION. THE THEORY UPON WHICH SUCH RULE IS BASED IS EXPLAINED IN 18 COMP. GEN. 213, WHEREIN, AFTER QUOTING FROM THE CASE OF BADEAU V. UNITED STATES, 130 U.S. 439, IT WAS STATED:

IF IT IS INCOMPATIBLE AND AGAINST THE GENERAL POLICY OF THE LAW FOR A RETIRED OFFICER, WHO IS ONLY SUBJECT TO THE RULES AND ARTICLES OF WAR AND CERTAIN LIMITED OTHER INCIDENTS OF MILITARY SERVICE, TO HOLD A CIVIL OFFICE IN A FOREIGN COUNTRY, OBVIOUSLY, ANY APPOINTMENT IN THE CIVIL BRANCH OF THE GOVERNMENT WOULD BE INCOMPATIBLE WITH SERVICE ON THE ACTIVE LIST OF THE ARMY. THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR-- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. * * *

IF DUE REGARD BE GIVEN THE SIMILARITY OF THE OBLIGATION TO PERFORM SERVICE WHICH THE LAW IMPOSES UPON A CONSCIENTIOUS OBJECTOR TO THAT OF THE OBLIGATION IMPOSED UPON A MAN IN THE MILITARY SERVICE, IT IS DIFFICULT TO PERCEIVE ANY LOGICAL BASIS FOR EXCLUDING THE INSTANT CASE FROM THE INHIBITION OF THE ABOVE-MENTIONED RULE. HOWEVER, IT IS UNNECESSARY TO REST THE MATTER UPON THAT GROUND ALONE.

SECTION 1765, REVISED STATUTES, 5 U.S.C. 70, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THIS SECTION, IT WILL BE NOTED, IS NOT CONFINED TO THOSE IN THE CIVIL AND MILITARY SERVICE OF THE GOVERNMENT BUT EXTENDS TO ALL "WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR ULATIONS.' AS THE SUPREME COURT SAID IN HOYT V. UNITED STATES, 51 U.S. 109, 141, THE PROHIBITION IS GENERAL, AND APPLIES NOT ONLY TO PUBLIC OFFICERS BUT TO "QUASI PUBLIC OFFICERS.' CONSEQUENTLY, WERE THE PERSON HERE INVOLVED ASSIGNED TO A GOVERNMENT OPERATED CAMP--- IN WHICH EVENT HIS ALLOWANCES AND EMOLUMENTS WOULD BE PRESCRIBED BY THE SELECTIVE SERVICE REGULATIONS (SEC. 653.3 (E) ( AND PAYABLE FROM PUBLIC FUNDS--- THERE WOULD IF ANY, DOUBT BUT THAT PAYMENT OF COMPENSATION FOR THE SERVICES RENDERED IN THE CIRCUMSTANCES DESCRIBED WOULD BE IN VIOLATION OF SAID SECTION 1765, REVISED STATUTES. BUT, SINCE IT IS INDICATED IN YOUR LETTER THAT THIS PARTICULAR CONSCIENTIOUS OBJECTOR IS ASSIGNED TO A CAMP OPERATED BY THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS--- IN WHICH EVENT, UNDER THE REGULATIONS, THE FULL FINANCIAL RESPONSIBILITY FOR THE WELFARE, ALLOWANCES, ETC., OF THE ASSIGNEE IS ASSUMED BY AND PAID BY THE BOARD, PRESUMABLY FROM OTHER THAN PUBLIC FUNDS--- IT MAY BE THAT THE PROVISIONS OF SECTION 1765, REVISED STATUTES, DO NOT SQUARELY COVER THE INSTANT CASE. NEVERTHELESS, IT IS AXIOMATIC THAT A VALID CONTRACTUAL OBLIGATION MUST BE SUPPORTED BY SUFFICIENT CONSIDERATION AND THAT WHERE A PARTY RECEIVES IN RETURN FOR A PROMISE ONLY THAT TO WHICH HE IS ALREADY LEGALLY ENTITLED, THE CONSIDERATION IS UNREAL. IT WOULD SEEM THAT THIS ELEMENTARY PRINCIPLE OF THE LAW OF CONTRACTS IS AT THE ROOT OF SECTION 1765, REVISED STATUTES, INSOFAR AS CONCERNS MANY OF THE SITUATIONS TO WHICH THE SAID SECTION IS APPLICABLE. IN OTHER WORDS, WHERE THE UNITED STATES IS ALREADY LEGALLY ENTITLED TO THE PERFORMANCE OF A SERVICE FROM AN INDIVIDUAL EITHER BY REASON OF A VALID CONTRACT OF EMPLOYMENT OR BY REASON OF A DUTY IMPOSED BY LAW, THERE IS NO NECESSITY FOR RESORT TO A SPECIFIC STATUTORY PROHIBITION AS A BASIS FOR CONCLUDING THAT THERE CANNOT BE CREATED A VALID CONTRACT TO PAY SUCH INDIVIDUAL ANY ADDITIONAL AMOUNT FOR THE PERFORMANCE OF SUCH SERVICE.

IN THE INSTANT CASE, THE ASSIGNEE, WHILE ON FURLOUGH, WAS EMPLOYED AS A TRUCK DRIVER FOR THE FOREST SERVICE. WHILE THE NATURE OF HIS REGULARLY ASSIGNED DUTIES IS NOT INDICATED, IT WOULD SEEM THAT THIS CLEARLY WAS WORK OF A NATURE SUCH AS COULD HAVE BEEN REQUIRED OF HIM BY VIRTUE OF HIS STATUS OF A CONSCIENTIOUS OBJECTOR ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER THE SUPERVISION OF THE FOREST SERVICE.

THE FACT THAT THE ASSIGNEE WAS ON FURLOUGH AT THE TIME HE WAS EMPLOYED AS A TRUCK DRIVER HAS NOT BEEN OVERLOOKED. HOWEVER, ANY FURLOUGHS ACCORDED TO AN ASSIGNEE UNDER THE SELECTIVE SERVICE REGULATIONS MUST BE CONSIDERED AS PRIVILEGES, ONLY, TO BE GRANTED "AT SUCH TIMES AS HE MAY BE SPARED FROM HIS DUTIES.' SEC. 691.16. IF THE ASSIGNEE HERE IN QUESTION COULD HAVE BEEN ASSIGNED TO THE DUTIES OF A TRUCK DRIVER WHILE IN A DUTY STATUS, HE COULD HAVE BEEN SO ASSIGNED WHILE ON FURLOUGH. CF. WOODWELL V. UNITED STATES, 214 U.S. 82. A CLEAR EXPRESSION OF THE PRINCIPLE CONTROLLING THIS PHASE OF THE MATTER IS FOUND IN A DECISION DATED SEPTEMBER 26, 1919, RENDERED BY THE ASSISTANT COMPTROLLER OF THE TREASURY IN FRANCE ( VOLUME IV, PAGE 134), WHEREIN IT WAS SAID:

* * * THE DUTIES OF REPORTER OF THE PROCEEDINGS OF A GENERAL COURT MARTIAL ARE SUCH AS COULD PROPERLY BE REQUIRED OF MR. ESTES UNDER HIS APPOINTMENT AS ARMY FIELD CLERK, AND, SUCH BEING THE CASE, IN ORDER FOR HIM TO HAVE ADDITIONAL COMPENSATION FOR THAT CLASS OF DUTIES, PROVISION BY SPECIAL LEGISLATION WOULD BE NECESSARY THEREFOR. IF THE DUTIES COULD PROPERLY BE REQUIRED OF HIM WHILE ON A DUTY STATUS THEY COULD LIKEWISE BE REQUIRED OF HIM WHILE ON A LEAVE STATUS, OR RATHER THE ASSIGNMENT OF HIM TO THEM OPERATED TO REMOVE HIM FROM A LEAVE STATUS AND TO PLACE HIM ON A DUTY STATUS. SUCH ASSIGNMENT WORKED A REVOCATION OF HIS LEAVE FOR THE TIME BEING AND WHILE IN THE PERFORMANCE OF THE DUTIES SO ASSIGNED HIM HE WAS ON A DUTY AND NOT A LEAVE STATUS.

THE GOVERNMENT HAD A RIGHT TO MR. ESTES' SERVICES AT ALL TIMES, AND, UNLESS SPECIFICALLY AUTHORIZED BY LAW, OR REGULATION MADE IN PURSUANCE OF LAW, AND AN APPROPRIATION WAS EXPLICITLY MADE THEREFOR, HE COULD NOT RENDER ANY SERVICE FOR THE GOVERNMENT OTHER THAN THAT OF ARMY FIELD CLERK FOR WHICH HE WOULD BE ENTITLED TO COMPENSATION. * * *

ACCORDINGLY, I AM CONSTRAINED TO HOLD THAT YOU ARE NOT AUTHORIZED TO CERTIFY THE SUBJECT VOUCHER FOR PAYMENT. THE VOUCHER IS RETURNED HEREWITH.