B-27231, AUGUST 7, 1944, 24 COMP. GEN. 75

B-27231, AUGUST 7, 1944, 24 COMP. GEN. 75

SELECTIVE SERVICE SYSTEM - CONSCIENTIOUS OBJECTORS - RIGHT OF U.S. TO INSTITUTE SUIT FOR WAGES WHERE, IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND REGULATIONS PURSUANT THERETO CONSCIENTIOUS OBJECTORS ARE ASSIGNED TO CIVILIAN WORK OF NATIONAL IMPORTANCE UNDER AN AGREEMENT THAT THE EMPLOYER SHALL PAY A FIXED AMOUNT TO THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS IN COMPENSATION FOR THE SERVICES OF THE ASSIGNEE--- SUCH BOARD ACTING AS AN AGENT FOR THE SELECTIVE SERVICE SYSTEM--- IT IS TO BE CONSIDERED THAT THE SERVICES ARE PERFORMED PURSUANT TO A CONTRACT BETWEEN THE EMPLOYER AND THE UNITED STATES SO THAT THE UNITED STATES IS SUCH A PARTY IN INTEREST IN SAID CONTRACT AS TO BE ENTITLED TO INSTITUTE SUIT FOR AMOUNTS DUE THEREUNDER.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, SELECTIVE SERVICE SYSTEM, AUGUST 7, 1944:

I HAVE YOUR LETTER OF JULY 19, 1944 (YOUR FILE NO. 9-278-32), AS FOLLOWS:

SUBJECT: PAYMENT OF WAGES TO ELI A. MILLER ASSIGNEE TO CIVILIAN WORK OF NATIONAL IMPORTANCE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED.

AT A RECENT CONFERENCE BETWEEN OFFICERS OF THE SELECTIVE SERVICE SYSTEM AND MR. FOLEY OF THE CLAIMS DEPARTMENT OF THE DEPARTMENT OF JUSTICE, THE ABOVE MATTER WAS PRESENTED TO THE DEPARTMENT OF JUSTICE FOR COLLECTION. AS THE MATTER WAS SO INVOLVED ON THE QUESTION OF WHETHER OR NOT THE UNITED STATES GOVERNMENT HAD SUCH A CLAIM FOR WAGES WHICH IT COULD ENFORCE IN THE COURT AGAINST ONE WILLIAM PLAS, IT WAS SUGGESTED BY THE DEPARTMENT OF JUSTICE THAT THE MATTER SHOULD BE SUBMITTED BY SELECTIVE SERVICE TO THE GENERAL ACCOUNTING OFFICE FOR A DETERMINATION OF THE RIGHT OF THE UNITED STATES GOVERNMENT TO MAKE A CLAIM FOR WAGES IN THIS CASE BEFORE ANY ACTION BE TAKEN ON SUCH A CLAIM BY THE DEPARTMENT OF JUSTICE.

ATTACHED HERETO YOU WILL FIND A DETAILED MEMORANDUM AND EXHIBITS SHOWING STEP BY STEP THE EXACT NATURE OF THE ALLEGED CLAIM FOR WAGES DUE FROM MR. WILLIAM PLAS OF GRAFTON, OHIO, FOR SERVICES RENDERED BY SUBJECT. THE ATTACHED MEMORANDUM SHOWS ALL OF THE FACTS LEADING UP TO THE EMPLOYMENT OF SUBJECT BY MR. PLAS. WE ARE HEREBY REQUESTING THAT YOU CONSIDER THE FACTS SURROUNDING SUBJECT'S EMPLOYMENT AS AN ASSIGNEE IN CIVILIAN WORK OF NATIONAL IMPORTANCE UNDER THE SELECTIVE SERVICE ACT ON MR. WILLIAM PLAS' DAIRY FARM, AND THAT YOU CONSIDER MR. PLAS' REFUSAL TO REMIT $332.50 WHICH HAS BEEN DEMANDED BY SELECTIVE SERVICE AGENTS AS MONEY OWING THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS FOR COVERAGE INTO THE TREASURY OF THE UNITED STATES DUE FOR SERVICES RENDERED BY SUBJECT FROM SEPTEMBER 1, 1943 TO MARCH 31, 1944.

WE ARE HEREBY REQUESTING THAT YOU DETERMINE WHETHER OR NOT THE UNITED STATES GOVERNMENT IS SUCH A PARTY IN INTEREST AS IT CAN LEGALLY INSTITUTE SUIT AGAINST MR. WILLIAM PLAS FOR THESE UNPAID WAGES AS MONIES DUE AND PAYABLE INTO THE TREASURY OF THE UNITED STATES.

IT IS UNDERSTOOD THAT THERE WAS NOT WRITTEN AGREEMENT EXECUTED TO COVER THE SERVICES OF THE ASSIGNEE, MILLER, WHILE ASSIGNED TO WILLIAM PLAS FOR WORK ON HIS FARM. CONSEQUENTLY, IT WILL BE NECESSARY TO CONSIDER, IN SOME DETAIL, THE FACTS AND CIRCUMSTANCES OF THE ASSIGNMENT IN ORDER THAT THE NATURE AND TERMS OF THE CONTRACT OF EMPLOYMENT MAY BE DETERMINED.

IT IS PROVIDED IN SECTION 5 (G) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 889, 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. EXECUTIVE ORDER NO. 8675, DATED FEBRUARY 6, 1941, AUTHORIZES THE DIRECTOR OF SELECTIVE SERVICE TO DETERMINE WORK OF NATIONAL IMPORTANCE TO WHICH CONSCIENTIOUS OBJECTORS MAY BE ASSIGNED, TO EFFECT SUCH ASSIGNMENTS UTILIZING, IF NECESSARY, THE SERVICES OF PUBLIC OR PRIVATE AGENCIES, AND TO PRESCRIBE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF SAID EXECUTIVE ORDER.

IN JUNE, 1942, THERE WAS EXECUTED A "MEMORANDUM OF UNDERSTANDING" BETWEEN THE DEPARTMENT OF AGRICULTURE, THE UNITED STATES EMPLOYMENT SERVICE, THE SELECTIVE SERVICE SYSTEM AND THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS. APPARENTLY, THIS MEMORANDUM OF UNDERSTANDING CONSTITUTED THE FIRST STEP IN THE PROGRAM TO UTILIZE THE SERVICES OF CONSCIENTIOUS OBJECTORS IN FARM WORK AND FORMED THE BASIS FOR ADMINISTRATIVE DIRECTIVE NO. 16, DATED JULY 30, 1943, AND REVISED JANUARY 27, 1944, ISSUED BY THE CAMP OPERATIONS DIVISION, SELECTIVE SERVICE SYSTEM. MEANWHILE, BY ORDER NO. 97, THE DIRECTOR OF SELECTIVE SERVICE HAD DESIGNATED THE ASSIGNMENT OF CONSCIENTIOUS OBJECTORS TO INDIVIDUAL DAIRY FARMS TO BE WORK OF NATIONAL IMPORTANCE.

SO FAR AS IT MAY BE MATERIAL FOR PRESENT PURPOSES, SAID ADMINISTRATIVE DIRECTIVE NO. 16 PROVIDES THAT EMPLOYEES TO WHOM ASSIGNEE LABOR IS MADE AVAILABLE MUST PAY THE PREVAILING WAGE OF THE COMMUNITY TO THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS, MUST MAKE CERTAIN PERIODIC REPORTS TO THE CAMP OPERATIONS DIVISION, SELECTIVE SERVICE SYSTEM, AND PROVIDE ROOM AND BOARD FOR THE ASSIGNEE. CHECKS, MONEY ORDERS, ETC., IN PAYMENT OF WAGES ARE TO BE MADE PAYABLE TO THE NATIONAL SERVICE BOARD; BUT SUCH REMITTANCES ARE TO BE MAILED TO THE FINANCE DIVISION, SELECTIVE SERVICE SYSTEM, AND THE BOARD IS REQUIRED TO PROVIDE ADEQUATE BOND TO THE UNITED STATES TO COVER AMOUNTS PAID BY EMPLOYERS. CERTAIN ENUMERATED EXPENSES ARE TO BE DEDUCTED FROM SUCH PAYMENTS BY THE BOARD AND THE BALANCE REMITTED TO THE SELECTIVE SERVICE SYSTEM TO BE HELD IN A SPECIAL DEPOSIT ACCOUNT IN THE TREASURY OF THE UNITED STATES UNTIL THE TERMINATION OF HOSTILITIES. AS TO THE ASSIGNEE, IT IS PROVIDED THAT HE IS NOT BEING RELEASED OR DISCHARGED BUT IS STILL UNDER THE SUPERVISION AND CONTROL OF THE DIRECTOR OF SELECTIVE SERVICE SYSTEM, AND THAT WAGES PAID FOR HIS SERVICES ARE TO BE COLLECTED BY THE SAID NATIONAL SERVICE BOARD, FROM WHICH CERTAIN DEDUCTIONS ARE TO BE MADE AND THE BALANCE DEPOSITED, AS ABOVE INDICATED.

IN THE MEMORANDUM ATTACHED TO YOUR LETTER, IT IS STATED THAT BY LETTER DATED MAY 14, 1943, F. P. ELLSWORTH, UNITED STATES EMPLOYMENT SERVICE, INFORMED AN OFFICIAL OF THE SELECTIVE SERVICE SYSTEM THAT ELI A. MILLER HAD BEEN PLACED WITH WILLIAM PLAS, COLUMBIA STATION, OHIO, AND THAT SAID LETTER ,CERTIFIED A WAGE RATE OF $47.50 PER MONTH TO BE PAID TO THE NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS, PLUS ROOM AND BOARD.' ALSO, IT IS STATED THAT THE EMPLOYER, WILLIAM PLAS, SUBMITTED REPORT CARDS COVERING TIME WORKED AND PAYMENTS MADE FOR SERVICES OF ELI A. MILLER FOR THE MONTHS OF MAY, JUNE, JULY, AND AUGUST -- COPIES OF SUCH CARDS BEING ATTACHED TO THE LETTER. APPARENTLY, NO PAYMENT HAS BEEN RECEIVED FOR SUCH SERVICES FOR THE PERIOD FROM SEPTEMBER 1, 1943, TO MARCH 31, 1944, AND REQUESTS FOR PAYMENT OF THE AMOUNT DUE HAVE BEEN IGNORED.

UNDER THE PROVISIONS OF THE SAID ADMINISTRATIVE DIRECTIVE NO. 16, AS REVISED, A FINANCIAL BENEFIT ACCRUES FROM THE AGREEMENT COVERING THE SERVICES OF THE CONSCIENTIOUS OBJECTOR BOTH TO THE NATIONAL SERVICE BOARD AND TO THE GOVERNMENT. THE BOARD OBTAINS REIMBURSEMENT FOR CERTAIN EXPENSES INCURRED ON BEHALF OF THE ASSIGNEE; AND THE GOVERNMENT RECEIVES THE BALANCE OF WAGES PAID FOR EVENTUAL COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. BUT IT WOULD SEEM THAT THE FINANCIAL BENEFITS ACCRUING TO THE BOARD ARE ONLY INCIDENTAL TO THE ACTUAL CONTRACT WITH THE EMPLOYER AND DEPEND PRIMARILY UPON THE TERMS OF THE COOPERATIVE ARRANGEMENT BETWEEN THE BOARD AND THE UNITED STATES. IN OTHER WORDS, EVEN THOUGH THE EMPLOYER MAKES PAYMENTS OF WAGES DIRECT TO THE BOARD HE DOES SO ONLY BECAUSE HE HAS BEEN SO DIRECTED BY THE UNITED STATES AT THE TIME THE SERVICES OF A CONSCIENTIOUS OBJECTOR ARE MADE AVAILABLE TO HIM.

IN DECISION DATED JULY 13, 1942 (B-27231) THIS OFFICE HELD THAT WHILE IT MIGHT BE THAT THERE IS SUFFICIENT AUTHORITY OF LAW FOR THE DEDUCTION BY THE NATIONAL SERVICE BOARD OF THE AMOUNT OF EXPENSES INCURRED BY IT FROM THE WAGE OF CONSCIENTIOUS OBJECTORS ASSIGNED TO WORK UNDER AN ARRANGEMENT SIMILAR TO THAT HERE INVOLVED, ANY REMAINING BALANCES OF SUCH WAGES ARE REQUIRED TO BE ACCOUNTED FOR TO THE GOVERNMENT AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. SUBSEQUENTLY, SAID DECISION WAS MODIFIED BY DECISION DATED FEBRUARY 27, 1943, WHEREIN THE SECRETARY OF THE TREASURY WAS ADVISED THAT IN VIEW OF THE CIRCUMSTANCES SET FORTH IN HIS LETTER, THIS OFFICE WOULD INTERPOSE NO OBJECTION TO DEPOSITING SUCH BALANCES INTO A SPECIAL DEPOSIT ACCOUNT WITH THE TREASURER OF THE UNITED STATES, THERE TO BE HELD UNTIL THE TERMINATION OF HOSTILITIES, WITH THE UNDERSTANDING THAT PROMPTLY THEREAFTER THE MONEYS WOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

THOSE DECISIONS WERE BASED ON THE PREMISE THAT AMOUNTS EARNED BY CONSCIENTIOUS OBJECTORS ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED CONSTITUTED ,MONEYS RECEIVED * * * FOR THE USE OF THE UNITED STATES," WHICH ARE REQUIRED BY THE TERMS OF SECTION 3617, REVISED STATUTES (31 U.S.C. 484) TO BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS "AT AS EARLY A DAY AS PRACTICABLE.' AND A NECESSARY COROLLARY OF SUCH A CONCLUSION IS THAT A CONSCIENTIOUS OBJECTOR SO ASSIGNED HAS NO INDEPENDENT RIGHT TO AMOUNTS PAID FOR HIS SERVICES. OTHERWISE, THERE WOULD HAVE BEEN NO VALID GROUNDS FOR OBJECTION TO THE PROPOSAL ORIGINALLY MADE, WHICH WAS TO THE EFFECT THAT BALANCES OF SUCH WAGE PAYMENTS WOULD BE USED FOR "WAR REHABILITATION.' SEE, IN THIS CONNECTION, B-27231, JULY 13, 1942.

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 TO 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.SUPP. 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.

ACCORDINGLY, IT SEEMS REASONABLE TO CONCLUDE THAT THE SERVICES OF MILLER WERE PERFORMED PURSUANT TO A CONTRACT BETWEEN WILLIAM PLAS, EMPLOYER, AND THE UNITED STATES; THAT SUCH CONTRACT WAS EXECUTED PURSUANT TO AUTHORITY CONTAINED IN THE SELECTIVE SERVICE AND TRAINING ACT AND REGULATIONS ISSUED PURSUANT THERETO; AND THAT, THEREFORE, THE UNITED STATES IS SUCH A PARTY IN INTEREST IN SUCH CONTRACT AS TO BE ENTITLED TO INSTITUTE SUIT FOR AMOUNTS DUE THEREUNDER. AS HAVING SOME POSSIBLE BEARING ON THE RIGHT TO INSTITUTE SUIT UNDER SUCH CIRCUMSTANCES, ATTENTION IS INVITED TO ALLGOOD V. STATE, 104 SO. 847; STATE V. LOVETT-CARNAHAN CO., 14 S.W.2D 233.