MARCH 11, 1922, 1 COMP. GEN. 499

MARCH 11, 1922, 1 COMP. GEN. 499

ARMY OFFICER APPOINTED MEMBER OF ALASKAN ENGINEERING COMMISSION UNDER THE PROVISIONS OF SECTION 1222, REVISED STATUTES, AN ARMY OFFICER WHO ACCEPTS A REGULAR APPOINTMENT FROM THE PRESIDENT AS A MEMBER OF THE ALASKAN ENGINEERING COMMISSION THEREBY VACATES HIS ARMY COMMISSION AND IS NOT ENTITLED TO PAY AS AN ARMY OFFICER WHILE SERVING AS A MEMBER OF THAT COMMISSION. THE ACT OF MARCH 4, 1921, 41 STAT., 1405, LIMITS THE SALARY OF ANY OFFICER OR EMPLOYEE OF THE ALASKAN ENGINEERING COMMISSION TO NOT EXCEEDING $10,000 PER ANNUM, AND ANY EXCESS OVER THAT RATE PAID SINCE JUNE 30, 1921, MUST BE RECOVERED, NOTWITHSTANDING THAT IT WAS PAID UNDER A PRESIDENTIAL APPOINTMENT NAMING A GREATER SALARY.

DECISION BY ACTING COMPTROLLER GENERAL GINN, MARCH 11, 1922:

THE CHIEF OF THE INTERIOR DEPARTMENT DIVISION OF THE GENERAL ACCOUNTING OFFICE HAS SUBMITTED FOR CONSIDERATION A MEMORANDUM DECISION TO THE EFFECT THAT CERTAIN PROVISIONS OF LAW HEREINAFTER QUOTED DO NOT AUTHORIZE PAYMENT TO COL. FREDERICK MEARS OF ANY COMPENSATION AS A MEMBER OF THE ALASKAN ENGINEERING COMMISSION IN ADDITION TO HIS PAY AND ALLOWANCES AS AN OFFICER OF THE UNITED STATES ARMY.

THE PROVISIONS OF LAW RELIED UPON BY THE COMMISSION AS AUTHORITY FOR THE PAYMENTS IN QUESTION ARE FOUND IN THE ACT OF MARCH 12, 1914, 38 STAT., 305, AND THE JOINT RESOLUTION OF MAY 13, 1914, 38 STAT., 772, AND WILL BE QUOTED HEREINAFTER; BUT BEFORE CONSIDERING SAID PROVISIONS IT IS DEEMED PROPER TO REFER TO CERTAIN OTHER STATUTORY ENACTMENTS WHICH HAVE A DIRECT BEARING UPON THE QUESTION HERE PRESENTED.

THE REVISED STATUTES OF THE UNITED STATES CONTAIN THE FOLLOWING PROVISIONS:

SEC. 1222. 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.

SEC. 1224 (AS AMENDED BY THE ACT OF FEBRUARY 22, 1887, 19 STAT., 243). 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.

SEC. 1763. NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS, SHALL RECEIVE COMPENSATION FOR DISCHARGING THE DUTIES OF ANY OTHER OFFICE, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1764. NO ALLOWANCE OR COMPENSATION SHALL BE MADE TO ANY OFFICER OR CLERK, BY REASON OF THE DISCHARGE OF DUTIES WHICH BELONG TO ANY OTHER OFFICER OR CLERK IN THE SAME OR ANY OTHER DEPARTMENT; AND NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1765. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THE ACT OF JULY 31, 1894, 28 STAT., 205, PROVIDES:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

THESE VARIOUS LAWS WERE IN FORCE IN 1914 WHEN THE PROVISIONS NOW RELIED UPON BY THE COMMISSION WERE ENACTED AND ARE FOR CONSIDERATION IN DETERMINING THE PURPOSE AND EFFECT OF SAID PROVISIONS. IN ADDITION REFERENCE MAY BE MADE TO THE PROVISIONS OF THE ACT OF MAY 10, 1916, 39 STAT., 120, AS AMENDED, PROHIBITING THE USE OF APPROPRIATIONS FOR PAYMENT OF THE COMPENSATION OF A PERSON HOLDING TWO OR MORE POSITIONS AT A COMBINED COMPENSATION IN EXCESS OF $2,000 PER ANNUM.

IT IS APPARENT FROM THE LAWS HEREINBEFORE QUOTED THAT IN THE ABSENCE OF SPECIFIC LEGISLATION TO THE CONTRARY AN OFFICER OF THE ARMY ON THE ACTIVE LIST WAS PROHIBITED (1) FROM BEING EMPLOYED BY DETAIL OR OTHERWISE ON ANY CIVIL WORK SUCH AS THE LOCATION, CONSTRUCTION AND OPERATION OF RAILROADS IN ALASKA; (2) FROM RECEIVING ANY COMPENSATION IN ADDITION TO HIS PAY AND ALLOWANCES AS AN ARMY OFFICER FOR ANY SERVICE HE MIGHT RENDER IN CONNECTION WITH THE WORK OF LOCATING, CONSTRUCTING AND OPERATING RAILROADS IN ALASKA; (3) FROM HOLDING ANY CIVIL OFFICE ON OR UNDER THE ALASKAN ENGINEERING COMMISSION BY APPOINTMENT OR OTHERWISE OR FROM ACCEPTING OR EXERCISING THE FUNCTIONS OF SUCH AN OFFICE WITHOUT CEASING TO BE AN OFFICER OF THE ARMY AND VACATING HIS COMMISSION AS SUCH; AND (4) FROM HOLDING AT THE SAME TIME AN OFFICE IN THE ARMY AND AN OFFICE ON OR UNDER THE ALASKAN ENGINEERING COMMISSION IF THE ANNUAL COMPENSATION ATTACHED TO EITHER OFFICE EQUALS OR EXCEEDS $2,500.

IT MUST BE ASSUMED THAT THE CONGRESS HAD THESE FOUR SEPARATE AND DISTINCT PROHIBITIONS IN VIEW WHEN THE STATUTE OF MARCH 12, 1914, WAS ENACTED. THE ONLY PROVISIONS OF SAID STATUTE MATERIAL TO THE QUESTION NOW UNDER CONSIDERATION ARE AS FOLLOWS:

THAT THE PRESIDENT OF THE UNITED STATES IS HEREBY EMPOWERED, AUTHORIZED, AND DIRECTED * * * TO EMPLOY SUCH OFFICERS, AGENTS, OR AGENCIES, IN HIS DISCRETION, AS MAY BE NECESSARY TO ENABLE HIM TO CARRYOUT THE PURPOSES OF THIS ACT; TO AUTHORIZE AND REQUIRE SUCH OFFICERS, AGENTS, OR AGENCIES TO PERFORM ANY OR ALL OF THE DUTIES IMPOSED UPON HIM BY THE TERMS OF THIS ACT; TO DETAIL AND REQUIRE ANY OFFICER OR OFFICERS IN THE ENGINEER CORPS IN THE ARMY OR NAVY TO PERFORM SERVICE UNDER THIS ACT; TO FIX THE COMPENSATION OF ALL OFFICERS, AGENTS, OR EMPLOYEES APPOINTED OR DESIGNATED BY HIM * * *.

THE GENERAL AUTHORITY THUS VESTED IN THE PRESIDENT TO EMPLOY SUCH OFFICERS, AGENTS, OR AGENCIES AS IN HIS DISCRETION MAY BE NECESSARY, AND TO FIX THE COMPENSATION OF ALL OFFICERS, AGENTS, AND EMPLOYEES APPOINTED OR DESIGNATED BY HIM CAN NOT BE CONSTRUED TO REPEAL OR SUPERSEDE ANY OF THE SPECIFIC PROVISIONS HEREINBEFORE QUOTED. THE GRANTING OF SUCH GENERAL AUTHORITY IS NOT UNUSUAL IN THE CREATION OF NEW BUREAUS, OFFICES, COMMISSIONS, ETC., AND IN PROVIDING FOR NEW ACTIVITIES. SEE SECTION 18, ACT OF FEBRUARY 4, 1887, 24 STAT., 386, RELATIVE TO THE INTERSTATE COMMERCE COMMISSION; SECTION 3, ACT OF JUNE 28, 1902, 32 STAT., 482, RELATIVE TO THE ISTHMIAN CANAL COMMISSION; SECTION 4 ACT OF AUGUST 24, 1912, 37 STAT., 561, RELATIVE TO THE PANAMA CANAL; SECTION 11, ACT OF DECEMBER 23, 1913, 38 STAT., 262, RELATIVE TO FEDERAL RESERVE BOARD; SECTION 2, ACT OF SEPTEMBER 26, 1914, 38 STAT., 718, RELATIVE TO THE FEDERAL TRADE COMMISSION; SECTION 4, ACT OF SEPTEMBER 7, 1916, 39 STAT., 729, RELATIVE TO THE UNITED STATES SHIPPING BOARD; SECTION 701, ACT OF SEPTEMBER 8, 1916, 39 STAT., 795, RELATIVE TO THE UNITED STATES TARIFF COMMISSION; AND SECTION 208, ACT OF JUNE 10, 1921, 42 STAT., 22, RELATIVE TO THE BUREAU OF THE BUDGET.

THE PROVISION NOW UNDER CONSIDERATION RELATIVE TO THE EMPLOYMENT AND FIXING OF COMPENSATION OF OFFICERS, AGENTS, AND EMPLOYEES IN THE DISCRETION OF THE PRESIDENT IS NOT SO INCONSISTENT WITH THE RESTRICTIONS THERETOFORE IMPOSED BY LAW RELATIVE TO THE DETAIL, APPOINTMENT, AND PAYMENT OF OFFICERS OF THE ARMY ON THE ACTIVE LIST AS TO CONSTITUTE A REPEAL BY IMPLICATION OF SAID RESTRICTIONS. THE PROVISION IN THE ACT OF MARCH 12, 1914, CAN BE SO CONSTRUED AS TO GIVE IT EFFECTIVE OPERATION WITHOUT CONFLICTING WITH THE FORMER PROVISIONS OF LAW RELATIVE TO ARMY OFFICERS AND IN ACCORDANCE WITH WELL RECOGNIZED RULES OF STATUTORY CONSTRUCTION IT MUST BE SO CONSTRUED. ACCORDINGLY, IT MUST BE HELD THAT THE DISCRETION VESTED IN THE PRESIDENT UNDER THIS LAW IS SUBJECT TO OTHER SPECIFIC PROVISIONS OF LAW THEN IN FORCE. 20 COMP. DEC. 34. THAT THIS IS THE CORRECT INTERPRETATION OF THIS PROVISION IS FURTHER EVIDENCED BY THE SPECIFIC PROVISION IN THE SAME PARAGRAPH AUTHORIZING THE PRESIDENT TO DETAIL AND REQUIRE ANY OFFICER OR OFFICERS IN THE ENGINEER CORPS IN THE ARMY OR NAVY TO PERFORM SERVICE UNDER THE ACT. THERE CAN BE NO DOUBT THAT THIS PROVISION WAS IN RECOGNITION OF AND FOR THE PURPOSE OF OVERCOMING THE PROHIBITION AGAINST SUCH DETAILS CONTAINED IN SECTION 1224, REVISED STATUTES, HEREINBEFORE QUOTED. THE PRIMARY AUTHORITY TO DETAIL OFFICERS OF THE ARMY IS UPON ARMY MATTERS, HENCE THE NEED FOR THE SPECIFIC AUTHORITY TO DETAIL AN OFFICER OF THE ARMY TO THE CIVIL WORK. IT GIVES POWER TO ORDER THE OFFICER UPON CIVILIAN DUTY, UPON WHICH AS AN OFFICER OF THE ARMY HE COULD NOT OTHERWISE BE LEGALLY ORDERED. IT ACCOMPLISHES NOTHING MORE, AND THE STATUS OF THE OFFICER UNDER SUCH AN AUTHORITY TO DETAIL IS PRECISELY THE SAME AS UNDER A DETAIL UPON ARMY MATTERS. AND IT MUST BE PRESUMED THAT IF THE CONGRESS HAD INTENDED TO AUTHORIZE THE APPOINTMENT OF ARMY OFFICERS TO CIVIL OFFICES OR POSITIONS IN CONNECTION WITH THE WORK CONTEMPLATED UNDER THE ACT OF MARCH 12, 1914, OR THE PAYMENT TO THEM OF ADDITIONAL COMPENSATION ON ACCOUNT OF SERVICES RENDERED IN CONNECTION WITH SAID WORK, SPECIFIC PROVISION TO THAT EFFECT WOULD HAVE BEEN MADE IN THE ACT AS WAS DONE IN THE ACTS RELATIVE TO THE ISTHMIAN CANAL COMMISSION AND THE PANAMA CANAL. 32 STAT., 483, AND 37 STAT. 561.

THE PROVISION IN THE ACT OF MARCH 12, 1914, RELATIVE TO THE DETAIL OF OFFICERS IN THE ENGINEER CORPS HAD NO APPLICATION TO COL. MEARS' CASE AT THAT TIME FOR THE REASON THAT HE WAS AN OFFICER IN THE CAVALRY AND DID NOT BECOME AN OFFICER IN THE ENGINEER CORPS UNTIL AFTER HIS RETURN TO THE MILITARY SERVICE IN JANUARY, 1918. HOWEVER, BY JOINT RESOLUTION OF MAY 13, 1914, IT WAS PROVIDED:

THAT THE PRESIDENT OF THE UNITED STATES BE, AND HE IS HEREBY, AUTHORIZED TO DETAIL AND REQUIRE LIEUTENANT FREDERICK MEARS, UNITED STATES ARMY, TO PERFORM SERVICE IN CONNECTION WITH THE LOCATION AND CONSTRUCTION OF THE RAILROAD OR RAILROADS IN THE TERRITORY OF ALASKA, PROVIDED FOR IN ACT OF CONGRESS APPROVED MARCH TWELFTH, NINETEEN HUNDRED AND FOURTEEN.

THIS PROVISION CLEARLY AUTHORIZED THE DETAIL OF LIEUTENANT MEARS TO SERVICE IN CONNECTION WITH THE WORK OF LOCATING AND CONSTRUCTING RAILROADS IN ALASKA, NOTWITHSTANDING THE PROVISIONS OF SECTION 1224, REVISED STATUTES, BUT IT MADE NO PROVISION FOR ANY ADDITIONAL COMPENSATION OR ALLOWANCES ON ACCOUNT THEREOF. IN OTHER WORDS, IT PROVIDED AGAINST ONLY ONE OF THE FOUR STATUTORY PROHIBITIONS HEREINBEFORE MENTIONED. THEREFORE, IT MUST BE HELD THAT ANY SERVICE PERFORMED UNDER SUCH A DETAIL WOULD BE WITHOUT ANY ADDITIONAL COMPENSATION OR ALLOWANCES. 26 COMP. DEC., 750. BUT THE QUESTION ARISES WHETHER HE WAS SERVING UNDER AN AUTHORIZED DETAIL ONLY OR WHETHER HE WAS HOLDING, OR EXERCISING THE FUNCTIONS OF, AN OFFICE ON THE COMMISSION. IF THE SERVICE RENDERED BY HIM IN CONNECTION WITH THE WORK OF LOCATING AND CONSTRUCTING RAILROADS IN ALASKA WAS UNDER A DETAIL SUCH AS WAS AUTHORIZED UNDER THE JOINT RESOLUTION OF MAY 13, 1914, HE WAS ENTITLED TO RECEIVE FOR SUCH SERVICE NO COMPENSATION OR ALLOWANCES OTHER THAN HIS PAY AND ALLOWANCES AS AN OFFICER IN THE REGULAR ARMY. IF ON THE OTHER HAND HE WAS HOLDING AN OFFICE ON THE ALASKAN ENGINEERING COMMISSION UNDER A COMMISSION OR APPOINTMENT FROM THE PRESIDENT OR THE SECRETARY OF THE INTERIOR, OR WAS EXERCISING THE FUNCTIONS OF SUCH AN OFFICE, HE THEREBY CEASED TO BE AN OFFICER IN THE ARMY AND VACATED HIS COMMISSION AS SUCH. SECTION 1222, REVISED STATUTES, HEREINBEFORE QUOTED. SEE ALSO 14 OP.ATTY.GEN. 200.

PARAGRAPH 4, SPECIAL ORDERS NO. 126, DATED MAY 29, 1914, AND SIGNED BY THE CHIEF OF STAFF BY ORDER OF THE SECRETARY OF WAR, READS AS FOLLOWS:

BY DIRECTION OF THE PRESIDENT, IN ACCORDANCE WITH A JOINT RESOLUTION OF CONGRESS APPROVED MAY 13, 1914, FIRST LIEUT. FREDERICK MEARS, CAVALRY, IS RELIEVED FROM FURTHER DUTY UNDER THE ORDERS OF THE GOVERNOR OF THE PANAMA CANAL AND WILL REPORT TO THE SECRETARY OF THE INTERIOR FOR "SERVICE IN CONNECTION WITH THE LOCATION AND CONSTRUCTION OF THE RAILROAD OR RAILROADS IN THE TERRITORY OF ALASKA PROVIDED FOR IN ACT OF CONGRESS APPROVED MARCH 12, 1914.'

THERE CAN BE DOUBT THAT AN ORDER SUCH AS THIS WAS CONTEMPLATED UNDER THE JOINT RESOLUTION OF MAY 13, 1914, AND THAT UNDER SUCH AUTHORITY LIEUT. MEARS COULD HAVE BEEN ASSIGNED TO ANY SERVICE REQUIRED OF HIM BY THE SECRETARY OF THE INTERIOR IN CONNECTION WITH THE LOCATION AND CONSTRUCTION OF RAILROADS IN ALASKA. UNDER SUCH AN ASSIGNMENT HE WOULD HAVE BEEN ENTITLED UNDER THE LAW TO NO PAY OR ALLOWANCES OTHER THAN THE REGULAR PAY AND ALLOWANCES OF THE RANK OR GRADE HELD BY HIM IN THE ARMY. IT APPEARS, HOWEVER, THAT THE SERVICE RENDERED BY HIM IN CONNECTION WITH THE LOCATION AND CONSTRUCTION OF RAILROADS IN ALASKA WAS NOT RENDERED UNDER AND BY VIRTUE OF SAID ORDERS, BUT UNDER A REGULAR APPOINTMENT FROM THE PRESIDENT EVIDENCED BY A COMMISSION READING AS FOLLOWS:

WOODROW WILSON, PRESIDENT OF THE UNITED STATES OF AMERICA. TO ALL WHOM THESE PRESENTS SHALL COME, GREETING: KNOW YE, THAT REPOSING SPECIAL TRUST AND CONFIDENCE IN THE INTEGRITY, ABILITY, AND DISCRETION OF LIEUTENANT FREDERICK MEARS, OF UNITED STATES ARMY, I DO APPOINT HIM TO BE A MEMBER OF THE ALASKAN ENGINEERING COMMISSION, AND DO AUTHORIZE AND EMPOWER HIM TO EXECUTE AND FULFILL THE DUTIES OF THAT OFFICE ACCORDING TO LAW, AND TO HOLD THE SAID OFFICE, WITH ALL THE RIGHTS AND EMOLUMENTS THEREUNTO LEGALLY APPERTAINING, DURING THE PLEASURE OF THE PRESIDENT OF THE UNITED STATES FOR THE TIME BEING.

IN TESTIMONY WHEREOF I HAVE CAUSED THESE LETTERS TO BE MADE PATENT, AND THE SEAL OF THE DEPARTMENT OF THE INTERIOR TO BE HEREUNTO AFFIXED.

GIVEN UNDER MY HAND, AT THE CITY OF WASHINGTON, THE THIRTEENTH DAY OF MAY, IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND FOURTEEN, AND OF THE INDEPENDENCE OF THE UNITED STATES THE ONE HUNDRED AND THIRTY- EIGHTH.

WOODROW WILSON

BY THE PRESIDENT:

FRANKLIN K. LANE,

SECRETARY OF THE INTERIOR.

THIS COMMISSION WAS ACCEPTED BY THE APPOINTEE AND THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES, WAS TAKEN AND SUBSCRIBED BY HIM MAY 26, 1914. IT IS TO BE OBSERVED THAT THE JOINT RESOLUTION OF MAY 13, 1914, AND THE COMMISSION OF MAY 13, 1914, AS A MEMBER OF THE ALASKAN ENGINEERING COMMISSION ARE OF THE SAME DATE, MAY 13, 1914, AND EFFECT WAS GIVEN THERETO MAY 26, 1914, PRIOR TO THE ORDER OF MAY 29, 1914, DETAILING HIM TO THE COMMISSION AS AN OFFICER OF THE ARMY. GIVING EFFECT TO THE PROVISIONS OF SECTION 1222, REVISED STATUTES, HE CEASED TO BE AN OFFICER IN THE REGULAR ARMY AND VACATED HIS COMMISSION AS SUCH, MAY 26, 1914. CONTINUED TO HOLD AND TO EXERCISE THE FUNCTIONS OF THE OFFICE OF COMMISSIONER OF THE ALASKAN ENGINEERING COMMISSION UNTIL IN JANUARY, 1918, WHEN HE FORMALLY RESIGNED FROM SAID OFFICE TO AGAIN ENTER THE MILITARY SERVICE.

BY SPECIAL ORDERS NO. 184-O, DATED AUGUST 7, 1919, SIGNED BY THE CHIEF OF STAFF, BY ORDER OF THE SECRETARY OF WAR,"COLONEL FREDERICK MEARS, CORPS OF ENGINEERS," WAS "RELIEVED FROM HIS PRESENT ASSIGNMENT AND DUTY" AND DIRECTED TO "REPORT TO THE SECRETARY OF THE INTERIOR FOR SERVICE IN CONNECTION WITH THE LOCATION AND CONSTRUCTION OF THE RAILROAD OR RAILROADS IN THE TERRITORY OF ALASKA, PROVIDED FOR IN THE ACT OF CONGRESS APPROVED MARCH 12, 1914.'

BY COMMISSION DATED AUGUST 9, 1919, IN TERMS PRACTICALLY IDENTICAL WITH THE COMMISSION HEREINBEFORE QUOTED, MR. MEARS WAS APPOINTED "CHAIRMAN AND CHIEF ENGINEER OF THE ALASKAN ENGINEERING COMMISSION," THE DESIGNATED SALARY BEING "TEN THOUSAND DOLLARS PER ANNUM, LESS HIS PAY AS AN OFFICER OF THE REGULAR ARMY.' THE OATH OF OFFICE UNDER THIS COMMISSION WAS TAKEN AND SUBSCRIBED SEPTEMBER 30, 1919. HE CONTINUED TO SERVE UNDER THIS COMMISSION UNTIL PROMOTED AND RECOMMISSIONED IN THE SAME OFFICE AT A SALARY OF "FIFTEEN THOUSAND DOLLARS PER ANNUM, LESS HIS PAY AS AN OFFICER OF THE REGULAR ARMY," EFFECTIVE FROM DECEMBER 16, 1919. I UNDERSTAND THAT HE IS STILL SERVING UNDER THIS COMMISSION AND EXERCISING THE FUNCTIONS OF THE OFFICE OF CHAIRMAN AND CHIEF ENGINEER OF THE ALASKAN ENGINEERING COMMISSION.

I EXPRESS NO OPINION AS TO THE OFFICIAL STATUS OF MR. MEARS FROM THE DATE OF HIS RESIGNATION FROM THE ALASKAN ENGINEERING COMMISSION IN JANUARY, 1918, TO THE DATE OF HIS REAPPOINTMENT TO AN OFFICE ON SAID COMMISSION IN AUGUST, 1919. IF HE LEGALLY HELD A COMMISSION IN THE REGULAR ARMY DURING SAID PERIOD, SAID COMMISSION WAS AUTOMATICALLY VACATED BY HIS ACCEPTANCE OF THE OFFICE OF CHAIRMAN AND CHIEF ENGINEER OF THE ALASKAN ENGINEERING COMMISSION.

THAT FORMER ACCOUNTING OFFICERS WERE BELIEVED TO BE AWARE OF MATTERS HERE IN QUESTION AND MADE NO OBJECTIONS, OR SUCH OBJECTIONS AS WERE MADE WERE NOT ENFORCED BY DISALLOWANCE OF PAYMENTS MADE, DOES NOT PRECLUDE PRESENT CONSIDERATION OF THE MATTER.

FOR REASONS HEREIN SET FORTH IT MUST BE HELD THAT FROM THE DATE OF MR. MEARS'S APPOINTMENT AS AN OFFICER OF THE ALASKAN ENGINEERING COMMISSION IN MAY, 1914, TO THE DATE OF HIS RESIGNATION THEREFROM IN JANUARY, 1918, AND FROM THE DATE OF HIS REAPPOINTMENT ON THE COMMISSION IN AUGUST, 1919, TO THE PRESENT TIME HE WAS ENTITLED TO RECEIVE NO PAY OR ALLOWANCES AS AN OFFICER OF THE ARMY. I UNDERSTAND THAT HIS COMPENSATION DURING SAID PERIODS HAS BEEN ON THE BASIS OF THE SALARY FIXED FOR THE OFFICE HELD BY HIM ON THE ALASKAN ENGINEERING COMMISSION, THE ARMY PAY AND ALLOWANCES RECEIVED BY HIM HAVING BEEN DEDUCTED FROM THE SALARY OF THE CIVIL OFFICE. SUCH BEING THE CASE, IT IS EVIDENT THAT A PART OF HIS COMPENSATION HAS NOT BEEN PAID UNDER THE PROPER APPROPRIATION; BUT NO GOOD PURPOSE WOULD BE SERVED BY AN ADJUSTMENT OF THE APPROPRIATIONS ON ACCOUNT OF PAYMENTS MADE FOR SERVICES RENDERED PRIOR TO JULY 1, 1921. WITH REFERENCE TO SERVICE RENDERED SUBSEQUENTLY TO JUNE 30, 1921, IT WILL BE PROPER TO MAKE A TRANSFER SETTLEMENT CHARGING THE APPROPRIATION FOR THE ALASKAN ENGINEERING COMMISSION AND CREDITING THE PROPER ARMY APPROPRIATIONS WITH THE AMOUNT OF ANY PAY OR ALLOWANCES PAID FROM THE ARMY APPROPRIATIONS FOR SAID PERIOD, AND HEREAFTER NO PAYMENTS SHOULD BE MADE TO HIM UNDER ARMY APPROPRIATIONS.

THE ACT OF MARCH 4, 1921, 41 STAT., 1405, IN APPROPRIATING FOR THE EXPENSES OF THE ALASKAN ENGINEERING COMMISSION CONTAINS A PROVISO AS FOLLOWS:

THAT NO ONE INDIVIDUAL SHALL BE PAID AN ANNUAL SALARY OUT OF THIS FUND OF MORE THAN $10,000.

IN VIEW OF THIS PROVISION IT WILL BE NECESSARY TO DISALLOW AND TO RECOVER FROM MR. MEARS ANY AMOUNT PAID TO HIM IN EXCESS OF COMPENSATION AT THE RATE OF $10,000 PER ANNUM FOR THE PERIOD SINCE JUNE 30, 1921.