B-8569, MARCH 27, 1940, 19 COMP. GEN. 826

B-8569: Mar 27, 1940

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ARMY OFFICERS - CIVILIAN DETAILS OR APPOINTMENTS AN OFFICER ON THE ACTIVE LIST OF THE ARMY WHO IS ALREADY PERFORMING DUTIES UNDER AN APPOINTMENT WITH THE PANAMA CANAL. IT IS REQUESTED THAT. UNTIL IT IS AUTHORITATIVELY DETERMINED WITHOUT QUESTION THAT THE PROVISIONS OF THE CITED LAW ARE NOT APPLICABLE IN THIS INSTANCE. THE DUTIES ASSIGNED BE PERFORMED UNDER THE OATH OF OFFICE WHICH I HAVE EXECUTED IN ACCEPTANCE OF MY PRESENT COMMISSION AS AN OFFICER OF THE ARMY.'. TO WHOM THE MATTER WAS REFERRED FOR ADVICE. SUP. 1305) ARE PROBABLY SUFFICIENT TO TAKE THE PROPOSED APPOINTMENT OUT OF THE APPLICATION OF SECTION 1222. AS THE PAY AND ALLOWANCES OF THE OFFICER ARE INVOLVED. A COPY OF HIS OPINION IS ENCLOSED.

B-8569, MARCH 27, 1940, 19 COMP. GEN. 826

ARMY OFFICERS - CIVILIAN DETAILS OR APPOINTMENTS AN OFFICER ON THE ACTIVE LIST OF THE ARMY WHO IS ALREADY PERFORMING DUTIES UNDER AN APPOINTMENT WITH THE PANAMA CANAL, MAY BE APPOINTED, WITHOUT ADDITIONAL COMPENSATION, AS REPRESENTATIVE OF THE UNITED STATES ON THE JOINT BOARD PROVIDED FOR IN ARTICLE III OF THE TRANS-ISTHMIAN HIGHWAY CONVENTION WITH PANAMA, NOTWITHSTANDING THE INHIBITIONS OF SECTIONS 1222 AND 1224 OF THE REVISED STATUTES REGARDING CIVILIAN DETAILS OR APPOINTMENTS OF SUCH OFFICERS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 27, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 14, 1940, AS FOLLOWS:

THE PRESIDENT, ON DECEMBER 2, 1939, SIGNED A COMMISSION APPOINTING COLONEL GLEN E. EDGERTON, AN OFFICER ON THE ACTIVE LIST OF THE ARMY, AS REPRESENTATIVE OF THE UNITED STATES ON THE JOINT BOARD PROVIDED FOR IN ARTICLE III OF THE TRANS-ISTHMIAN HIGHWAY CONVENTION WITH PANAMA, TREATY SERIES NO. 946, PROCLAIMED BY THE PRESIDENT OF THE UNITED STATES, JULY 27, 1939. THE QUESTION HAS ARISEN IN THE WAR DEPARTMENT AS TO WHETHER THE ACCEPTANCE OF THIS COMMISSION BY COLONEL EDGERTON WOULD BE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1222 OF THE REVISED STATUTES. COLONEL EDGERTON IN ACKNOWLEDGING RECEIPT OF THIS COMMISSION MAKES THE FOLLOWING STATEMENT:

"IN VIEW, HOWEVER, OF THE PROVISIONS OF 10 U.S.C.A. 576, THE OATH OF OFFICE HAS NOT BEEN EXECUTED. IT IS REQUESTED THAT, UNTIL IT IS AUTHORITATIVELY DETERMINED WITHOUT QUESTION THAT THE PROVISIONS OF THE CITED LAW ARE NOT APPLICABLE IN THIS INSTANCE, THE DUTIES ASSIGNED BE PERFORMED UNDER THE OATH OF OFFICE WHICH I HAVE EXECUTED IN ACCEPTANCE OF MY PRESENT COMMISSION AS AN OFFICER OF THE ARMY.'

THE JUDGE ADVOCATE GENERAL OF THE ARMY, TO WHOM THE MATTER WAS REFERRED FOR ADVICE, HAS EXPRESSED THE VIEW THAT THE STATUTORY AUTHORIZATIONS CONTAINED IN THE ACT OF AUGUST 24, 1912 (37 STAT. 561; 48 U.S.C. 1305), AND CERTAIN SUBSEQUENT ENACTMENTS ( ACT OF JUNE 19, 1934, 48 STAT. 1122, AS AMENDED BY ACT OF JULY 9, 1937, 50 STAT. 486; 48 U.S.C., SUP. 1305) ARE PROBABLY SUFFICIENT TO TAKE THE PROPOSED APPOINTMENT OUT OF THE APPLICATION OF SECTION 1222, REVISED STATUTES, BUT AS THE PAY AND ALLOWANCES OF THE OFFICER ARE INVOLVED, HAS SUGGESTED THAT THE QUESTION BE SUBMITTED TO YOU. A COPY OF HIS OPINION IS ENCLOSED. ATTENTION IS INVITED TO AN UNPUBLISHED OPINION OF YOUR OFFICE, DATED MARCH 5, 1923 ( A.D. 7475), WHEREIN THE SCOPE OF THE PERTINENT PORTION OF THE PANAMA CANAL ACT WAS CONSIDERED.

AN ADVANCE DECISION UPON THIS QUESTION WILL BE VERY MUCH APPRECIATED.

THE ANNOUNCED PURPOSE OF THE CONVENTION BETWEEN THE UNITED STATES AND THE REPUBLIC OF PANAMA, PROCLAIMED BY THE PRESIDENT JULY 27, 1939, TREATY SERIES NO. 946, WAS TO ARRANGE FOR THE COMPLETION OF A HIGHWAY BETWEEN THE CITIES OF PANAMA AND COLON THROUGH TERRITORY UNDER THEIR RESPECTIVE JURISDICTIONS.

IT IS STATED THAT COLONEL EDGERTON WHO, IT APPEARS, IS ENGINEER OF MAINTENANCE OF THE PANAMA CANAL, WAS APPOINTED AS THE REPRESENTATIVE OF THE UNITED STATES UNDER ARTICLE III OF THE CONVENTION, WHICH PROVIDES:

PRIOR TO THE UNDERTAKING OF FURTHER CONSTRUCTION ON THE TRANS ISTHMIAN HIGHWAY, EACH GOVERNMENT WILL APPOINT AN EQUAL NUMBER OF REPRESENTATIVES WHO WILL CONSTITUTE A JOINT BOARD WITH AUTHORITY TO ADJUST QUESTIONS OF DETAIL REGARDING THE LOCATION, DESIGN, AND CONSTRUCTION OF THE PORTIONS OF THE HIGHWAY FALLING UNDER THE JURISDICTION OF EACH GOVERNMENT. QUESTIONS OF DETAIL ON WHICH THE BOARD MAY FAIL TO REACH AN AGREEMENT WILL BE REFERRED TO THE TWO GOVERNMENTS FOR SETTLEMENT.

IT IS NOTED THAT A SUPPLEMENTAL ESTIMATE OF APPROPRIATION OF $325,000 FOR THE PANAMA CANAL FOR THE FISCAL YEAR 1940 FOR THE PURPOSE OF CONSTRUCTING THAT PORTION OF THE HIGHWAY UNDERTAKEN BY THE UNITED STATES UNDER THE PROVISIONS OF THE CONVENTION WAS SUBMITTED BY THE PRESIDENT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES FEBRUARY 25, 1940, BUT THE FACTS AS PRESENTED DO NOT DISCLOSE WHETHER AS A REPRESENTATIVE APPOINTED UNDER ARTICLE III OF THE AFORESAID CONVENTION, COLONEL EDGERTON IS TO RECEIVE ANY COMPENSATION THEREFOR IN ADDITION TO THE PAY AND ALLOWANCES ACCRUING UNDER HIS APPOINTMENT TO THE PANAMA CANAL AND HIS COMMISSION AS AN OFFICER OF THE ARMY. IT APPEARS FROM THE BUDGET FOR 1941, PAGES 812-813, THAT THE COMPENSATION OF THE ENGINEER OF MAINTENANCE OF THE PANAMA CANAL IS $9,250 LESS HIS ARMY PAY AND ALLOWANCES OF $7,200.

SECTION 1222 OF THE REVISED STATUTES, 10 U.S.C. 576, PROVIDES:

NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR 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.

SECTION 1224 OF THE REVISED STATUTES, AS AMENDED, 10 U.S.C. 495, PROVIDES:

NO OFFICER OF THE ARMY SHALL BE EMPLOYED ON CIVIL WORKS OR INTERNAL IMPROVEMENTS, OR BE ALLOWED TO ENGAGE IN THE SERVICE OF ANY INCORPORATED COMPANY, OR BE EMPLOYED AS ACTING PAYMASTER OR DISBURSING AGENT OF THE INDIAN DEPARTMENT, IF SUCH EXTRA EMPLOYMENT REQUIRES THAT HE SHALL BE SEPARATED FROM HIS COMPANY, REGIMENT, OR CORPS, OR IF IT SHALL OTHERWISE INTERFERE WITH THE PERFORMANCE OF THE MILITARY DUTIES PROPER.

IT IS THE SETTLED RULE, IN VIEW OF THE PROVISIONS OF SECTIONS 1222 AND 1224 OF THE REVISED STATUTES, AS AMENDED, THAT THERE MUST BE STATUTORY AUTHORITY FOR DETAILING OFFICERS ON THE ACTIVE LIST OF THE ARMY TO DUTY IN THE CIVIL BRANCHES OF THE GOVERNMENT, OR TO APPOINT THEM TO CIVIL OFFICE, EVEN WHERE SUCH CIVIL OFFICE CARRIES NO ADDITIONAL PAY. SEE 13 OP. ATTY. GEN. 310; 16 ID. 499; 29 ID. 298; 30 ID. 184; 1 COMP. GEN. 499. THE QUESTION PRESENTED HERE IS WHETHER THERE EXISTS SUCH STATUTORY AUTHORITY FOR THE APPOINTMENT OF COLONEL EDGERTON AS A REPRESENTATIVE ON THE TRANS- ISTHMIAN HIGHWAY BOARD UNDER THE CONVENTION AS TO EXCEPT HIM FROM THE PROVISIONS OF THE PROHIBITORY SECTIONS OF THE REVISED STATUTES REFERRED TO.

THE ACT OF AUGUST 24, 1912, 37 STAT. 560, ENTITLED "AN ACT TO PROVIDE FOR THE OPENING, MAINTENANCE, PROTECTION, AND OPERATION OF THE PANAMA CANAL, AND THE SANITATION AND GOVERNMENT OF THE CANAL ZONE," PROVIDED IN SECTION 4, 37 STAT. 561 (48 U.S.C. 1305), IN PART AS FOLLOWS:

THAT WHEN IN THE JUDGMENT OF THE PRESIDENT THE CONSTRUCTION OF THE PANAMA CANAL SHALL BE SUFFICIENTLY ADVANCED TOWARD COMPLETION TO RENDER THE FURTHER SERVICES OF THE ISTHMIAN CANAL COMMISSION UNNECESSARY THE PRESIDENT IS AUTHORIZED BY EXECUTIVE ORDER TO DISCONTINUE THE ISTHMIAN CANAL COMMISSION, WHICH, TOGETHER WITH THE PRESENT ORGANIZATION, SHALL THEN CEASE TO EXIST; AND THE PRESIDENT IS AUTHORIZED THEREAFTER TO COMPLETE, GOVERN, AND OPERATE THE PANAMA CANAL AND GOVERN THE CANAL ZONE, OR CAUSE THEM TO BE COMPLETED, GOVERNED, AND OPERATED, THROUGH A GOVERNOR OF THE PANAMA CANAL AND SUCH OTHER PERSONS AS HE MAY DEEM COMPETENT TO DISCHARGE THE VARIOUS DUTIES CONNECTED WITH THE COMPLETION, CARE, MAINTENANCE, SANITATION, OPERATION, GOVERNMENT, AND PROTECTION OF THE CANAL AND CANAL ZONE. IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS AFORESAID SHALL BE PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THIS ACT. * * * SEE, ALSO, TITLE 2, SECTIONS 6 AND 82, OF THE CANAL ZONE CODE, ESTABLISHED BY THE ACT OF JUNE 19, 1934, 48 STAT. 1122. THERE THUS APPEARS AMPLE AUTHORITY FOR THE DETAIL OR APPOINTMENT UNDER THE PANAMA CANAL OF AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1222 AND 1224, REVISED STATUTES. THE QUESTION HERE PRESENTED IS WHETHER THE APPOINTMENT AS THE REPRESENTATIVE OF THE UNITED STATES ON THE JOINT BOARD PROVIDED FOR IN ARTICLE III OF THE CITED TREATY FALLS WITHIN THE ABOVE AUTHORIZATION SO AS TO EXEMPT SUCH APPOINTMENT FROM THE PROVISIONS OF THE QUOTED SECTIONS OF THE REVISED STATUTES.

WHILE ARTICLE III OF THE CONVENTION UNDER WHICH COLONEL EDGERTON WAS COMMISSIONED AS THE REPRESENTATIVE OF THE UNITED STATES DOES NOT EXPRESSLY REFER TO THE ACTIVITY AS ONE UNDER THE PANAMA CANAL, IT APPEARS OBVIOUS THAT THE CONSTRUCTION OF THE TRANS-ISTHMIAN HIGHWAY IN THE PARTICULAR LOCALITY AND FROM FUNDS OF THE UNITED STATES WHEN AND IF APPROPRIATED FOR THAT PURPOSE UNDER "THE PANAMA CANAL," HAS A CLOSE CONNECTION AND RELATIONSHIP WITH THE CARE, MAINTENANCE, SANITATION, OPERATION, GOVERNMENT, AND PROTECTION OF THE PANAMA CANAL AND THE CANAL ZONE, AND HIS APPOINTMENT AS SUCH AND THE EXERCISE OF THE FUNCTIONS APPERTAINING TO SUCH APPOINTMENT SEEM TO HAVE BEEN AS A PART OF AND IN CONNECTION WITH HIS DUTIES AS ENGINEER OF MAINTENANCE UNDER THE PANAMA CANAL.

ON THE ASSUMPTION, THEREFORE, THAT COLONEL EDGERTON HAS BEEN SO APPOINTED AS THE REPRESENTATIVE OF THE UNITED STATES ON THE JOINT BOARD REFERRED TO AS A PART OF AND IN CONNECTION WITH HIS DUTIES AS ENGINEER OF MAINTENANCE OF THE PANAMA CANAL, AND THAT HIS COMMISSION AS SUCH REPRESENTATIVE OF THE UNITED STATES CARRIES NO ADDITIONAL COMPENSATION, IT IS THE VIEW OF THIS OFFICE THAT HIS ACCEPTANCE OF THE COMMISSION AS THE REPRESENTATIVE OF THE UNITED STATES UNDER THE CITED ARTICLE III IS WITHIN THE EXCEPTION CONTAINED IN THE PANAMA CANAL ACT OF 1912 AS AMENDED.