JULY 12, 1921, 1 COMP. GEN. 13

JULY 12, 1921, 1 COMP. GEN. 13

REGULATIONS - RANK AND PAY OF COAST AND GEODETIC SURVEY OFFICERS THE REGULATIONS FOR THE GOVERNMENT OF THE COAST AND GEODETIC SURVEY, PROHIBITING THE REDUCTION IN GRADE OF ANY COMMISSIONED OFFICER OF THAT BUREAU EXCEPT AFTER DUE INVESTIGATION BY A BOARD OF COMMISSIONED OFFICERS, ETC., WHILE ISSUED WITH THE APPROVAL OF THE SECRETARY OF COMMERCE, ARE NOT BASED UPON ANY SPECIFIC STATUTORY AUTHORITY, AND MAY THEREFORE BE WAIVED OR DISREGARDED BY THE HEAD OF THAT DEPARTMENT AT HIS DISCRETION.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 12, 1921:

D. B. WAINWRIGHT, HYDROGRAPHIC AND GEODETIC ENGINEER, UNITED STATES COAST AND GEODETIC SURVEY, APPLIED JUNE 9, 1921, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS IN DISALLOWING BY SETTLEMENT 26439, DATED JUNE 6, 1921, CLAIM FOR DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A COMMANDER, RELATIVE NAVY RANK, AND THE PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER, RELATIVE NAVY RANK, FOR THE PERIOD MAY 18, TO OCTOBER 31, 1920.

IT APPEARS THAT ON JULY 15, 1916, APPELLANT WAS APPOINTED AN "ASSISTANT" IN THE COAST AND GEODETIC SURVEY AT A SALARY OF $3,000 PER ANNUM; THAT ON JUNE 30, 1917, WHILE STILL SERVING UNDER THAT APPOINTMENT HE WAS COMMISSIONED HYDROGRAPHIC AND GEODETIC ENGINEER IN THE COAST AND GEODETIC SURVEY UNDER AUTHORITY OF THE ACT OF MAY 22, 1917, 40 STAT., 88, WITH THE SAME SALARY WHICH GAVE HIM THE RELATIVE RANK OF COMMANDER IN THE NAVY; THAT ON JUNE 28, 1919, THE SECRETARY OF COMMERCE MADE A CHANGE IN APPELLANT'S SALARY, REDUCING THE SAME FROM $3,000 TO $2,800 PER ANNUM, WHICH WAS APPELLANT'S RATE OF SALARY WHEN THE ACT OF MAY 18, 1920, 41 STAT., 603, WAS PASSED ASSIMILATING THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY TO THAT OF OFFICERS OF THE NAVY WITH WHOM THEY HOLD RELATIVE RANK AS PROVIDED IN THE ACT OF MAY 22, 1917.

THE ACT OF MAY 22, 1917, 40 STAT., 88, PROVIDES:

"HYDROGRAPHIC AND GEODETIC ENGINEERS RECEIVING $2,500 OR MORE BUT LESS THAN $3,000 SHALL RANK WITH AND AFTER MAJORS IN THE ARMY AND LIEUTENANT COMMANDERS IN THE NAVY.'

APPELLANT'S RELATIVE RANK WHEN THE ACT OF MAY 18, 1920, BECAME EFFECTIVE WAS THAT OF LIEUTENANT COMMANDER. HE CONTENDS, HOWEVER, THAT THE SECRETARY'S ACTION IN CHANGING HIS SALARY FROM $3,000 TO $2,800 WAS IN VIOLATION OF ARTICLE 76 OF REGULATIONS FOR THE GOVERNMENT OF THE COAST AND GEODETIC SURVEY AND THEREFORE WAS INEFFECTIVE TO CHANGE HIS GRADE OR RELATIVE RANK.

ARTICLE PROVIDES THAT:

* * * NO COMMISSIONED OFFICERS SHALL BE DISMISSED FROM THE SERVICE OR REDUCED IN GRADE, WITHOUT DUE INVESTIGATION BY A BOARD OF COMMISSIONED OFFICERS OF THE SURVEY ORDERED BY THE PRESIDENT OF THE UNITED STATES OR THE SECRETARY OF COMMERCE ON THE RECOMMENDATION OF THE SUPERINTENDENT * *

IT APPEARS THAT THE SECRETARY'S ACTION IN REDUCING APPELLANT'S SALARY, AND CONSEQUENTLY HIS GRADE, WAS MADE WITHOUT ANY REFERENCE TO AN INVESTIGATING BOARD AS REQUIRED BY THE REGULATIONS, AND THE QUESTION IS WHETHER THE SECRETARY'S ACTION IN THUS IGNORING OR WAIVING THE REQUIREMENT OF THE REGULATIONS IS VALID AS AFFECTING APPELLANT'S GRADE OR RELATIVE RANK.

THE POWER TO MAKE REGULATIONS IMPLIES THE POWER TO ALTER, AMEND, MODIFY, OR REVOKE THE SAME, BUT IT DOES NOT ALWAYS IMPLY THE POWER TO WAIVE OR IGNORE THE REGULATION IN A SPECIFIC CASE. A REGULATION MADE PURSUANT TO GENERAL AUTHORITY RESTING IN THE HEAD OF A DEPARTMENT TO MAKE REGULATIONS TO GOVERN ITS AGENTS IN THE DISTRIBUTION AND PERFORMANCE OF THE DEPARTMENT'S ACTIVITIES CAN BE WAIVED BY THE HEAD OF THE DEPARTMENT IN ANY PARTICULAR CASE SO LONG AS THE WAIVER THEREOF DOES NOT VIOLATE A SPECIFIC PROVISION OF THE LAW. BUT A REGULATION MADE BY SPECIFIC AUTHORITY OF A STATUTE AND PURSUANT TO AND IN EXECUTION THEREOF IS SUPPLEMENTARY TO THE LAW AND OF EQUAL FORCE THEREWITH. SUCH A REGULATION MAY BE AMENDED OR MODIFIED, BUT SO LONG AS IT REMAINS A REGULATION IT HAS ALL THE FORCE AND EFFECT OF LAW AND CAN NOT BE WAIVED OR IGNORED IN A SPECIFIC CASE. COMP. DEC., 482.

SINCE THE REGULATION IN QUESTION DOES NOT SEEM TO HAVE BEEN MADE PURSUANT TO A SPECIFIC PROVISION OF LAW AND WAS NOT NECESSARY TO THE EXECUTION OF ANY PARTICULAR STATUTE, I AM OF OPINION THAT THE SECRETARY'S ACTION IN REDUCING APPELLANT'S SALARY WITHOUT REFERENCE TO A BOARD OF INVESTIGATION AS PROVIDED BY REGULATION WAS WITHIN HIS AUTHORITY AND THAT SUCH ACTION GAVE TO APPELLANT THE RELATIVE RANK OF A LIEUTENANT COMMANDER IN THE NAVY.