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1942-and not prior thereto-if at that time the efficiency ratings made as of March 31, 1942, be on record and available as a basis for making automatic promotions.
Section 1 (d) of Executive Order No. 8882 provides:
(d) "Equivalent increase in compensation" shall mean any increase or increases which in total are equal to or greater than the compensation increment in the lowest grade in which the employee has served during the time period of eighteen or thirty months, as the case may be.
Accordingly, under the plain terms of this regulation, the period of eligibility (18 or 30 months) of employees mentioned in case No. 2 began to run from the date of the second increase, provided, of course, that a period of 18 or 30 months, as the case may be, did not elapse between the first increase and the date (beginning of the quarter) when the automatic promotion otherwise is due.
PRIVATE PROPERTY-DAMAGES CAUSED BY OR TO AUTOMOBILES OPERATED ON MILEAGE BASIS BY GOVERNMENT EMPLOYEES
An accident caused by a Government employee who was operating a privately owned automobile on a mileage basis at the time of the accident and who, therefore, had the duties and liabilities of a private driver, may not be considered as having been caused by the Government, and there is no authority under a statutory provision authorizing administrative settlement of claims for damages to private property resulting from negligence of employees acting within the scope of their employment, for consideration of a claim for damages so caused, whether or not the claimant, also, is a Government employee. The statutory authority of the Administrator of the National Youth Administration to settle certain claims for private property damage resulting from the negligence of the Administration's employees includes authority to settle the claim of an employee of the Administration for damage to a privately owned automobile, which was being used for official travel on a mileage basis, caused by the negligence of another employee of the Administration acting within the scope of his employment, provided the employee causing the accident was not himself operating an automobile on a mileage basis at the time. 20 Comp. Gen. 339, amplified.
Comptroller General Warren to the Federal Security Administrator, June 1, 1942:
Reference is made to your letter of March 21, 1942, as follows:
Paragraph 21 of the National Youth Administration Appropriation Act of 1942 provides:
"The National Youth Administrator, subject to the approval of the Federal Security Administrator, is authorized to consider, ascertain, adjust, determine, and pay from the appropriation in paragraph 1 any claim arising out of operations thereunder accruing after June 30, 1941, on account of damage to, or loss of, privately owned property caused by the negligence of any employee of the National Youth Administration, while acting within the scope of his employment. No claim shall be considered hereunder which is in excess of $500 or which is not presented in writing within one year from the date of accrual thereof. Acceptance by a claimant of the amount allowed on account of his claim shall be deemed to be in full settlement thereof, and the action upon such claim so accepted by the claimant shall be conclusive."
The National Youth Administrator has before him for consideration a claim for damage to a privately owned automobile arising out of an accident caused by the negligence of an employee of the National Youth Administration, while
acting within the scope of his employment. At the time of the accident the claimant, who was also an employee of the National Youth Administration, was traveling in her privately owned automobile on a mileage basis under a travel authorization properly issued in accordance with paragraph 12 (a) of the Standardized Government Travel Regulations.
You and your predecessors appear to have consistently held that the payment of mileage for the use of a privately owned automobile commutes every expense, including repairs due to hazards of the weather or to accidents. (7 Comp. Gen. 284, 15 id. 76, id. 735, 19 id. 39, B-20763, rendered December 2, 1941.) However, none of these decisions have been predicated on a situation wherein the damage to the claimant-employee's car was caused by the negligence of another Government employee while acting within the scope of his employment, nor, with the possible exception of certain language in the last paragraph of a decision rendered January 2, 1941 (20 Comp. Gen. 339), does this situation ever appear to have been discussed.
In the absence of a definite determination on this point, the National Youth Administrator has requested that your decision be solicited on the question whether a claim of this type (wherein the Government itself is a tort feasor) is for consideration under paragraph 21 of the Act referred to above, and, if otherwise proper, whether such claim may be paid from the appropriation made by that act.
Travel on a mileage basis was the specific subject of the decision of December 2, 1941, which you cite (21 Comp. Gen. 507), where, for reasons there stated in detail, it was concluded, "In other words, in the mileage arrangement the employee substitutes himself for the common carrier usually employed, and, as in the case of a common carrier, the legal incidence of such transportation-referring both to the power of control and the liability for results-would seem to fall upon the employee, and not upon the Government." Based upon such premises it would follow that an accident caused by such a traveler was not caused by the Government, and that consideration of a claim for damages so caused was not warranted under the statute in question. Such conclusion necessarily would be required whether or not the person claiming payment for damage to his property might happen to be an employee of the Government.
In a case where the damage actually is caused by the negligence of a Government employee while acting within the scope of his employment (not caused by a traveler on a mileage basis), it is settled that the claim of another Government employee whose property was damaged may be considered upon the same basis as that of a private person. 20 Comp. Gen. 339. In a case where that claimant is an official traveler on a mileage basis, his duties and liabilities are those of a private driver (21 Comp. Gen. 507, supra); correspondingly, he has the same rights and privileges, including the privilege of reimbursement for property loss actually caused by Government negligence, so far as provided by the statute quoted in your letter, but the damage must result from the negligence of some employee who is not at the time of the accident operating an automobile on a mileage basis. With that reservation, and thus amplifying the decision of January 2, 1941, 20 Comp. Gen. 339, supra, your questions are answered in the affirmative.
TEMPORARY APPOINTMENTS IN ARMY OF THE UNITED STATESSUPERINTENDENT OF ARMY NURSE CORPS; WOMEN GENERALLY
The authority in the act of September 22, 1941, to make temporary appointments as officers in the Army of the United States "from among qualified persons" refers to and contemplates men exclusively, and may not be regarded as authority for commissioning women as officers in the Army of the United States.
The superintendent of the Army Nurse Corps whose pay, additional money allowance, and "relative rank" are fixed by statute is not entitled to the pay and allowances of a colonel in the Army of the United States, to which office she was appointed, in addition to her appointment as superintendent of the Army Nurse Corps, under color of the authority in the act of September 22, 1941, to make temporary appointments as officers in the Army of the United States "from among qualified persons."
Assistant Comptroller General Elliott to Col. W. M. Dixon, U. S. Army, June 1, 1942:
There has been received, by reference from the Chief of Finance, your letter of April 3, 1942, as follows:
Attached hereto is a voucher in favor of Colonel Julia O. Flikke, Army of the United States, in the amount of $245.02 covering pay and allowances for the period March 14, 1942, to March 31, 1942, which has been presented to the undersigned, a disbursing officer, for payment.
Section 13, Act of June 10, 1922 (42 Stat. 631) provides that Superintendents of the Nurse Corps shall receive a money allowance at the rate of $2,500 a year in addition to their pay as nurses.
The Act of September 22, 1941, Public Law 252, 77th Congress, provides that, "During the present emergency, temporary appointments as officers in the Army of the United States may be made, under such regulations as the President may prescribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States. * * * Provided Further, That any person appointed as an officer in the Army of the United States under the provisions of this Act shall receive the same pay and allowances and be entitled to the same rights, privileges, and benefits as members of the Officers' Reserve Corps of the same grade and length of active service." Paragraph 4 of copy of letter of appointment dated March 13, 1942, attached hereto states, "This appointment is in addition to your appointment as Superintendent of the Army Nurse Corps, the duties of which office you will continue to perform."
In view of the above-mentioned law providing for a specific rate of pay for the Superintendent of the Army Nurse Corps, the undersigned is in doubt as to whether Colonel Flikke is entitled to the pay and allowances of a Colonel, and your decision in the matter is respectfully requested.
Enclosed with your submission is a copy of a "temporary appointment" of March 13, 1942, as follows:
1. By direction of the President you are temporarily appointed in the Army of the United States, effective this date, in the grade and section shown in address above. Your serial number and length of active service in your present or any higher grade are shown after A and B respectively.
2. This commission to continue in force during the pleasure of the President of the United States for the time being, and for the duration of the present emergency and six months thereafter unless sooner terminated.
3. There is inclosed herewith a form for oath of office which you are requested to execute and return promptly to the agency from which it was received by you. The execution and return of the required oath of office constitute an acceptance of your appointment. No other evidence of acceptance is required. This letter should be retained by you as evidence of your appointment as no commissions will be issued during the war.
4. This appointment is in addition to your appointment as Superintendent of the Army Nurse Corps, the duties of which office you will continue to perform. By order of the Secretary of War:
There was also enclosed a copy of "orders" of March 13, 1942, to "Colonel Julia O. Flikke," through the Surgeon General, as follows:
By direction of the President, you are ordered to active duty with the Medical Department, effective March 13, 1942. On that date you will proceed from Takoma Park, Maryland to Washington, D. C., reporting to The Surgeon General for duty. You will rank from March 13, 1942. The travel directed is necessary in the military service and is chargeable to FD 1499 P1-06 A 0410–2 and QM 160 P61-07 A 0525-2.
It appears that Mrs. Flikke has been superintendent of the Army Nurse Corps-and presumably still continues to hold that position— and that her "appointment" as colonel in the Army of the United States purports to be "in addition to your appointment as Superintendent of the Army Nurse Corps, the duties of which office you will continue to perform." It goes without saying that, in the absence of all other objection, Mrs. Flikke could not, in any event, continue to draw the pay and allowances provided by law for the superintendent of the Nurse Corps, and, at the same time, have the pay and allow ances provided by law for a colonel in the United States Army.
Briefly, the superintendent of the Army Nurse Corps, referred to hereinafter as superintendent, is appointed by the Secretary of War. and at his discretion, may be removed by him. Act of July 9, 1918, chapter V, 40 Stat. 879. By virtue of her tenure as superintendent. she has "relative rank" as major; and, "as regards medical and sanitary matters and all other work" within the line of her profes sional duties, she has authority, in and about military hospitals, next after the officers of the Medical Corps. Act of June 4, 1920, 41 Stat. 767. In addition to her pay as a nurse she is entitled to a money allowance at the rate of $2,500 a year. Act of June 10, 1922, 42 Stat. 631. Other benefits and privileges of the position of superintendent are not material here. Her annual rate of pay, her annual additional money allowance, and her "relative rank" are fixed by positive statutory provisions, clear, concise, and unmistakable. And in the absence of statutory enactment no less clear and concise, the superintendent of the Army Nurse Corps as such and while performing the duties of the position cannot be paid or allowed any greater amount. and cannot be "promoted" either directly or indirectly to any higher rank, "relative" or other, than the maximum prescribed. Cf. 20 Comp. Gen. 558, adhered to upon further consideration B-14985, May 5, 1942; B-23524, March 16, 1942. To hold otherwise would be not only without statutory sanction, but in contravention of express statutory mandate.
However, your submission, indicating as it does, an administrative misinterpretation of a statute, prompts a somewhat more detailed consideration than would be necessary otherwise.
The "temporary appointment" of Mrs. Flikke in the grade of colonel "in the Army of the United States" apparently was under color of Public Law 252-77th Congress, approved September 22, 1941, entitled "A Joint Resolution to authorize temporary appointments of officers in the Army of the United States," which is as follows:
That during the present emergency, temporary appointments as officers in the Army of the United States may be made, under such regulations as the President may prescribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States. All persons so appointed as officers shall be commissioned in the Army of the United States and may be ordered into the active military service of the United States to serve therein for such periods of time as the President may prescribe. Such appointments in grades below that of brigadier general shall be made by the President alone, and general officers by and with the advice and consent of the Senate: Provided, That any appointment made under the provisions of this Act may be vacated at any time by the President and, if not sooner vacated, shall continue during the present emergency and six months thereafter: Provided further, That any person appointed as an officer in the Army of the United States under the provisions of this Act shall receive the same pay and allowances and be entitled to the same rights, privileges, and benefits as members of the Officers' Reserve Corps of the same grade and length of active service: And provided further, That nothing contained in this Act shall be construed to prohibit the appointment of officers in the various components of the Army of the United States in accordance with existing laws.
Presumably, the undertaking to appoint Mrs. Flikke as colonel in the Army of the United States proceeded upon the assumption that the word "person" used in the above-quoted statute included women as well as men. If such was the explanation (and I conceive of no other), I find no support for and am unable to agree with that view. Unquestionably the word "person," in its broadest and most comprehensive sense embraces any and every living human being, but it by no means follows that when used in a statute, it is entitled to or properly may be given such all inclusive application. Established canons of statutory construction are to the contrary. It has been said by the Supreme Court of the United States:
It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject-matter to which it relates; and to restrain its operation within narrower limits than its words import if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it. [Italics supplied.]
McKee v. United States, 164 U. S. 287, 293, citing Brewer v. Blougher, 14 Pet. 178, 198; Petri v. Commercial National Bank of Chicago, 142 U. S. 644, 650.
The subject matter to which the present statute relates is, of course, the Army of the United States and temporary appointments as officers therein. The statute makes no provision for the promotion