OCTOBER 5, 1922, 2 COMP. GEN. 261

OCTOBER 5, 1922, 2 COMP. GEN. 261

FIELD ASSISTANTS, SHIPPING CLERKS, AND SUPERVISORS OF TELEPHONE LINES, OF COAST GUARD - WHETHER WITHIN PURVIEW OF JOINT SERVICE PAY ACT FOR PAY PURPOSES THE PROVISIONS IN SECTIONS 1 AND 16 OF THE ACT OF JUNE 10, 1922, 42 STAT., 627, 632, THAT SAID ACT SHOULD APPLY TO PERSONS NOT COMMISSIONED AS OFFICERS, BUT WHOSE PAY "UNDER EXISTING LAW" IS EQUIVALENT TO OR IS "BASED BY LAW" ON THAT OF A COMMISSIONED OFFICER, DOES NOT EXTEND THE PROVISIONS OF SAID ACT TO FIELD ASSISTANTS, SHIPPING CLERKS, OR SUPERVISORS OF TELEPHONE LINES OF THE COAST GUARD, WHOSE SALARIES ARE NOT BY STATUTE MADE DEPENDENT UPON THE PAY OF ANY COMMISSIONED OFFICER, BUT HAPPEN TO BE EQUIVALENT IN AMOUNT TO THE PAY OF SUCH AN OFFICER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, OCTOBER 5, 1922:

I HAVE YOUR LETTER OF SEPTEMBER 16, 1922, REQUESTING DECISION, AS FOLLOWS:

THE FOLLOWING IS QUOTED FROM SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT., 627:

"THE PROVISIONS OF THIS ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING, NOT AS COMMISSIONED OFFICERS IN THE ARMY, OR IN THE OTHER SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT WHOSE PAY UNDER EXISTING LAW IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER OF ONE OF THE ABOVE GRADES, THOSE RECEIVING THE PAY OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT BEING CLASSIFIED AS IN THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY.'

ALSO, THE FOLLOWING IS QUOTED FROM SECTION 16 OF THE ABOVE MENTIONED ACT, 42 STAT., 632:

"THE PROVISIONS OF THIS SECTION SHALL APPLY IN LIKE MANNER TO EACH PERSON NOT COMMISSIONED WHOSE PAY IS BASED BY LAW ON THAT OF A COMMISSIONED OFFICER.'

THERE ARE IN THE COAST GUARD FIELD ASSISTANTS (CONSTRUCTION AND REPAIR), SHIPPING CLERKS, AND SUPERVISORS OF TELEPHONE LINES, WHO ARE CIVILIAN EMPLOYEES, AND THEIR PAY IS PROVIDED FOR IN THE ANNUAL APPROPRIATION ACTS. (FOR INSTANCE, SEE ACT MAKING APPROPRIATIONS FOR THE TREASURY DEPARTMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1923, APPROVED FEBRUARY 17, 1922). THE PAY OF CERTAIN OF THESE CIVILIAN EMPLOYEES WAS FIXED BY THE SECRETARY OF THE TREASURY AT $2,000.00 PER ANNUM, AN AMOUNT EQUIVALENT TO THE BASE PAY OF A LIEUTENANT, JUNIOR GRADE, PRIOR TO THE ENACTMENT OF THE JOINT SERVICE PAY ACT. THESE CIVILIANS HAVE DIRECTED ATTENTION TO THAT PART OF THE ACT ABOVE QUOTED WHICH PROVIDES THAT THE ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING NOT AS COMMISSIONED OFFICERS BUT WHOSE PAY IS IN AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER, AND CONTEND THAT SAID PROVISION IS APPLICABLE TO THEM. HOWEVER, THE PAY OF NONE OF THE ABOVE REFERRED TO CIVILIANS IS BASED BY LAW ON THAT OF A COMMISSIONED OFFICER.

YOU DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT FIELD ASSISTANTS (CONSTRUCTION AND REPAIR), SHIPPING CLERKS, AND SUPERVISORS OF TELEPHONE LINES, OF THE UNITED STATES COAST GUARD, ARE INCLUDED AMONG THE CIVILIANS WHOSE RATES OF PAY ARE PROVIDED FOR IN SAID ACT.

YOU TRANSMIT FOR CONSIDERATION IN CONNECTION WITH THIS QUESTION THE CLAIMS FOR COMPENSATION UNDER THE ACT OF JUNE 10, 1922, OF ANDRE FORCHY, FIELD ASSISTANT; J. S. RANDALL, FIELD ASSISTANT; C. E. MARTIN, SUPERVISOR OF TELEPHONE LINES; AND J. P. RILEY, SHIPPING CLERK, ALL BEING EMPLOYED IN THE UNITED STATES COAST GUARD SERVICE.

IT APPEARS THAT THE SALARIES OF THESE EMPLOYEES ARE NOT FIXED BY LAW OR REGULATIONS. THEY ARE CIVIL-SERVICE EMPLOYEES, UNDER CONTRACT, AND RECEIVE PAY IN THE AMOUNT AUTHORIZED AND APPROVED BY THE SECRETARY OF THE TREASURY FROM THE LUMP-SUM APPROPRIATION PROVIDED IN THE ACT OF FEBRUARY 17, 1922, 42 STAT., 377, FOR THE "COMPENSATION OF CIVILIAN EMPLOYEES IN THE FIELD," COAST GUARD, WHICH DOES NOT INDICATE THE NUMBER OR GRADE OF CIVILIANS TO BE EMPLOYED.

IT IS CLEAR THAT THE PAY OF THESE EMPLOYEES IS NOT FIXED "UNDER EXISTING LAW" IN AN AMOUNT ,EQUIVALENT TO THAT OF A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE ACT OF JUNE 10, 1922.

THE CLEAR PURPOSE OF CONGRESS IN ENACTING THE SECTION IN QUESTION IS TO EXTEND TO "PERSONS NOT COMMISSIONED WHOSE PAY IS BASED BY LAW ON THAT OF A COMMISSIONED OFFICER," AS EXPRESSLY INDICATED IN THE LAST SENTENCE OF SECTION 16, THE SAME BENEFIT ACCORDED COMMISSIONED OFFICERS BY THE ACT.

IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT THE INTENT OF THE STATUTE MUST BE ARRIVED AT BY CONSIDERATION OF THE STATUTE AS A WHOLE.

CONGRESS FROM TIME TO TIME HAS EXPRESSLY INDICATED THAT CERTAIN CIVILIAN EMPLOYEES SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF CERTAIN COMMISSIONED OFFICERS IN THE MILITARY SERVICE. FOR INSTANCE, THE ACT OF JULY 1, 1918, 40 STAT., 640, PROVIDES THAT A CIVILIAN INSTRUCTOR IN THE COAST GUARD, AFTER FIVE YEARS' SERVICE AS SUCH, SHALL HAVE THE PAY AND ALLOWANCES OF A SECOND LIEUTENANT, AND AFTER 10 YEARS' SERVICE SHALL HAVE THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT IN THE COAST GUARD. THE ACT OF MAY 18, 1920, 41 STAT., 603, PROVIDES THAT THE SENIOR DISTRICT SUPERINTENDENT, THE THREE DISTRICT SUPERINTENDENTS NEXT IN ORDER OF SENIORITY, THE FOUR DISTRICT SUPERINTENDENTS NEXT BELOW THESE THREE IN ORDER OF SENIORITY, AND THE JUNIOR FIVE DISTRICT SUPERINTENDENTS, SHALL BE GIVEN THE RANK, PAY, AND ALLOWANCES OF CAPTAIN, FIRST LIEUTENANT, SECOND LIEUTENANT, AND THIRD LIEUTENANT, RESPECTIVELY.

THERE APPEARS NOTHING IN THE ACT OF JUNE 10, 1922, EXPRESSING AN INTENTION ON THE PART OF CONGRESS TO MAKE ANY CHANGE IN THE PAY OR COMPENSATION OF, OR EXTENSION OF ALLOWANCES TO, FIELD ASSISTANTS, SHIPPING CLERKS, OR SUPERVISORS OF TELEPHONE LINES OF THE COAST GUARD, AND YOU ARE ACCORDINGLY ADVISED THAT THEY ARE NOT INCLUDED WITHIN THE PURVIEW OF THE ACT OF JUNE 10, 1922.