JUNE 16, 1924, 3 COMP. GEN. 962

JUNE 16, 1924, 3 COMP. GEN. 962

ARMY PAY - ROAD WORK AN ENLISTED MAN OF THE ARMY DETAILED TO WORK ON STATE ROADS NOT INCLUDED IN ANY AGREEMENT BETWEEN THE PARTICULAR STATE AND THE SECRETARY OF AGRICULTURE FOR COOPERATIVE CONSTRUCTION DOES NOT COME WITHIN THE PROVISIONS OF THE FEDERAL AID ROAD ACT OF JULY 11, 1916, 39 STAT., 355, AS AMENDED BY THE ACT OF FEBRUARY 28, 1919, 40 STAT., 1200, AND HE IS NOT ENTITLED FOR SUCH WORK TO ANY ADDITIONAL COMPENSATION TO EQUALIZE HIS ARMY PAY TO CONFORM TO THAT PAID TO CIVILIAN EMPLOYEES ENGAGED ON WORK ON THOSE PARTICULAR ROADS.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 16, 1924:

CAREY J. BEAUCHAMP APPLIED MAY 2, 1924, FOR REVIEW OF SETTLEMENT NO. S 32454, DISALLOWING HIS CLAIM FOR $198.77 FOR EQUALIZATION OF PAY AS PRIVATE, FIRST CLASS, QUARTERMASTER CORPS, UNITED STATES ARMY, TO CONFORM TO THE COMPENSATION PAID TO CIVILIAN EMPLOYEES ON ACCOUNT OF WORK ON ROADS IN THE VICINITY OF MARFA, RUDIOSA, LAJITAS, AND PRESIDIO, TEX., DURING THE PERIOD FROM FEBRUARY 6 TO APRIL 30, 1919, THE DISALLOWANCE BEING FOR THE FOLLOWING REASON:

THE ROAD WORK ON WHICH THE CLAIM IS BASED WAS PERFORMED IN THE STATE OF TEXAS ON A ROAD WHICH WAS NOT INCLUDED IN ANY AGREEMENT BETWEEN THE STATE HIGHWAY DEPARTMENT AND THE SECRETARY OF AGRICULTURE FOR ROAD WORK IN THAT STATE, AND THEREFORE DOES NOT FALL WITHIN THE PROVISIONS OF THE FEDERAL AID ROAD ACT OF JULY 11, 1916, 39 STAT., 355, AS AMENDED BY THE ACT OF FEBRUARY 28, 1919, 40 STAT., 1200-1202.

THE DISALLOWANCE WAS BASED ON DECISION OF JULY 29, 1922, WHEREIN IT WAS HELD:

THE ACT OF JULY 11, 1916, 39 STAT., 355, PROVIDED FOR AID BY THE UNITED STATES TO THE SEVERAL STATES IN THE CONSTRUCTION OF RURAL POST ROADS AND APPROPRIATED CERTAIN FUNDS FOR EXPENDITURES IN COOPERATION WITH THE STATES COMPLYING WITH THE REQUIREMENTS OF THE ACT.

THE ACT OF FEBRUARY 28, 1919, MAKING APPROPRIATIONS FOR THE SERVICE OF THE POST OFFICE DEPARTMENT, AMENDED THE ACT OF JULY 11, 1916, DEFINED AND CONSTRUED THE TERM "RURAL POST ROADS" AND APPROPRIATED ADDITIONAL SUMS FOR CARRYING ON THE WORK, THEREIN AND THERETOFORE AUTHORIZED, IN ACCORDANCE WITH THE TERMS OF THE ORIGINAL ACT AS AMENDED.

SECTION 8 OF THE ACT OF FEBRUARY 28, 1919, APPROPRIATED FUNDS FOR AND AUTHORIZED THE COOPERATIVE CONSTRUCTION AND MAINTENANCE OF ROADS AND TRAILS THROUGH NATIONAL FORESTS.

UPON SUBMISSION TO THE DEPARTMENT OF AGRICULTURE FOR ADMINISTRATIVE EXAMINATION, APPROVAL OF THE CLAIM IN QUESTION WAS REFUSED BY THE SECRETARY, AND THE BUREAU OF PUBLIC ROADS OF THAT DEPARTMENT STATED THE REASONS THEREFOR AS FOLLOWS:

"THE ROAD WORK ON WHICH THE CLAIMANT BASES HIS CLAIM WAS PERFORMED IN THE STATE OF TEXAS, BUT NOT ON A ROAD IMPROVED UNDER THE FEDERAL HIGHWAY ACT BECAUSE THE ROAD ON WHICH THE WORK WAS PERFORMED WAS NEVER INCLUDED IN ANY PROJECT STATEMENT SUBMITTED BY THE STATE HIGHWAY DEPARTMENT OF TEXAS AND APPROVED BY THE SECRETARY OF AGRICULTURE, NOR WAS IT INCLUDED IN ANY AGREEMENT BETWEEN THE STATE HIGHWAY DEPARTMENT AND THE SECRETARY OF AGRICULTURE FOR ROAD WORK IN THE STATE OF TEXAS UNDER THE TERMS OF THE FEDERAL AID ROAD ACTS ABOVE REFERRED TO * * *.'

SECTION 9 OF THE ACT OF FEBRUARY 28, 1919, PROVIDES AS FOLLOWS:

"THAT NO OFFICER OR ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS SHALL BE DETAILED FOR WORK ON THE ROADS WHICH COME WITHIN THE PROVISIONS OF THIS ACT EXCEPT BY HIS OWN CONSENT: AND PROVIDED FURTHER, THAT THE SECRETARY OF AGRICULTURE THROUGH THE WAR DEPARTMENT SHALL ASCERTAIN THE NUMBER OF DAYS ANY SUCH SOLDIERS, SAILORS, AND MARINES HAVE WORKED ON THE PUBLIC ROADS IN THE SEVERAL STATES (OTHER THAN ROADS WITHIN THE LIMITS OF CANTONMENTS OR MILITARY RESERVATIONS IN THE SEVERAL STATES) DURING THE EXISTING WAR AND ALSO THE LOCATION WHERE THEY WORKED AND THEIR NAMES AND RANK, AND REPORT TO CONGRESS AT THE BEGINNING OF ITS NEXT REGULAR SESSION: PROVIDED FURTHER, THAT WHEN ANY OFFICER OR ENLISTED MAN IN THE ARMY, THE NAVY, OR THE MARINE CORPS SHALL HAVE BEEN OR MAY BE IN THE FUTURE DETAILED FOR LABOR IN THE BUILDING OF ROADS OR OTHER HIGHWAY CONSTRUCTION OR REPAIR WORK (OTHER THAN ROADS WITHIN THE LIMITS OF CANTONMENTS OR MILITARY RESERVATIONS IN THE SEVERAL STATES), DURING THE EXISTING WAR, THE PAY OF SUCH OFFICER OR ENLISTED MAN SHALL BE EQUALIZED TO CONFORM TO THE COMPENSATION PAID TO CIVILIAN EMPLOYEES IN THE SAME OR LIKE EMPLOYMENT AND THE AMOUNT FOUND TO BE DUE SUCH OFFICERS, SOLDIERS, SAILORS, AND MARINES, LESS THE AMOUNT OF HIS PAY AS SUCH OFFICER, SOLDIER, SAILOR, OR MARINE, SHALL BE PAID TO HIM FROM THE 1920 APPROPRIATION HEREIN ALLOTTED TO THE STATES WHEREIN SUCH HIGHWAY CONSTRUCTION OR REPAIR WORK WAS OR WILL BE PERFORMED.'

THAT PART OF SECTION 9 AUTHORIZING THE EQUALIZATION OF PAY IS A PROVISO TO THE ENACTING CLAUSE, WHICH PROHIBITS THE DETAIL OF THE OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS TO WORK ON ROADS "WHICH COME WITHIN THE PROVISIONS OF THIS ACT," WITHOUT THEIR CONSENT.

IN THE PROVISO THERE ARE NO WORDS RESTRICTING THE OPERATION THEREOF TO ANY PARTICULAR CLASS OF ROADS, IT BEING, HOWEVER, A SETTLED RULE OF STATUTORY CONSTRUCTION THAT THE SCOPE OF THE PROVISO IS CONFINED TO THAT WHICH DIRECTLY PRECEDES IT OR TO THE SECTION OF WHICH IT IS A PART, UNLESS IT CLEARLY APPEARS THE LEGISLATURE INTENDED OTHERWISE. BLACK INTERPRETATION OF LAWS, 432.

AS ABOVE STATED, THE ENACTING CLAUSE OF SECTION 9 DEALS DIRECTLY WITH ROADS "WHICH COME WITHIN THE PROVISIONS OF THIS ACT," AND READING THE ACT IN ITS ENTIRETY, THE RESTRICTIVE LANGUAGE USED IN THE ENACTING CLAUSE CONSTITUTES A LIMITATION ON THE SCOPE OF THE PROVISO. THE MEANING AND INTENTION OF THE LEGISLATURE IS ASCERTAINABLE FROM THE STATUTE ITSELF AND THE WORDS EMPLOYED ARE SUSCEPTIBLE OF A DEFINITE, CLEAR, AND SENSIBLE INTERPRETATION.