annuity carrying with it a continuing benefit upon the annuitant's death to a designated beneficiary. The law (section 2 of the act of August 4, 1939) stipulates that the amount of the two annuities shall be such that their combined actuarial value on the date of retirement shall be the same as the actuarial value of the single life increased annuity with forfeiture.

This Commission has before it the case of a fourth-class postmaster who, upon retirement, elected a joint and survivorship annuity, naming his wife as beneficiary. Upon his death, payments of annuity were continued to the beneficiary in accordance with the terms of the law. The widow has now been appointed to her husband's former position, that of fourth-class postmaster, and the question arises as to whether or not she may receive the survivorship annuity and also the regular Federal salary for the position.

This Commission knows of no provision of law or regulation which would bar the receipt of both payments under these circumstances. However, as numerous decisions of your office hold that salary and annuity may not be paid to the same individual during the same period of time, and 13 Comp. Gen. 258 states that a widow who is receiving death benefits under the Employees' Compensation Act on account of death of her husband may not receive retirement annuity based upon her own period of service, this office desires your ruling as to whether there is any objection to the salary and annuity payment. Carrying this one step further, there will also be involved the question of a survivor annuitant who becomes entitled to annuity for services rendered, in which event two annuities under the same law will be authorized in favor of the same person.

Your decision on these matters is respectfully requested.

Section 4 of the Civil Service Retirement Act, as amended by section 2 of the act of August 4, 1939, 53 Stat. 1201, contains a provision as follows:

(d) Any employee retiring under the provisions of section 1 of this Act may at the time of his retirement elect to receive in lieu of the life annuity described herein a reduced annuity payable to him during his life, and an annuity after his death payable to his beneficiary, duly designated in writing and filed with the Civil Service Commission at the time of his retirement, during the life of such beneficiary (a) equal to or (b) 50 per centum of such reduced annuity and upon the death of such surviving beneficiary all payments shall cease and no further annuity shall be due or payable. The amounts of the two annuities shall be such that their combined actuarial value on the date of retirement as determined by the Civil Service Commission shall be the same as the actuarial value of the single life increased annuity with forfeiture provided by this section: Provided, That no election in lieu of the life annuity provided herein shall become effective in case an employee dies within thirty days after the effective date of retirement, and in the event of such death within this period, such death shall be considered as a death in active service.

As stated in your letter, numerous decisions of this office have held that retirement annuity and compensation for active service in a civilian capacity may not be paid to the same person for the same period of time. 10 Comp. Gen. 309; 13 id. 54; 14 id. 285; 16 id. 121. See, also, Brunswick v. Elliott, 103 Fed. (2d) 746. Those holdings were predicated upon the basis that the evident purpose and intent of civil retirement legislation was wholly inconsistent with the dual payment of active service compensation and retirement annuity to the same person for the same period of time, particularly in view

of a number of statutory prohibitions against reemployment of retired personnel and against continuance of annuity payments after reemployment in active service, to which attention is hereinafter directed. Compare Brunswick v. United States, 90 Ct. Cls. 285; 20 Comp. Gen. 443. However, those decisions had relation solely to retired employees in the light of the prohibitions contained in the various sections of the Civil Retirement Act and in other statutes. See section 204 of the Economy Act of June 30, 1932, 47 Stat. 404; section 2 of the Retirement Act of May 29, 1930, as amended by section 2 of the act of January 24, 1942, Public Law 411, 56 Stat. 14; section 6 of the Retirement Act of May 29, 1930, 46 Stat. 472, 473; section 7 of the same statute, as amended by section 5 of the act of January 24, 1942, 56 Stat. 16; and section 8 of the act of June 16, 1933, 48 Stat. 305, 306. None of these provisions of law, or of any other statute, prohibits the beneficiary of a retired employee who has been granted an annuity on the basis of the employee's service under the provisions of section 4 (d) of the Retirement Act as amended, supra, from being employed in a civilian position or from receiving the salary paid for such position. Such an annuity granted to a designated beneficiary is not in any sense a retirement annuity, but partakes of the nature of insurance which the retired employee provided for the beneficiary designated by him. Hence, the general rule stated in decisions of this office forbidding payment of retirement annuity concurrently with payment for active civilian service reasonably could not have any application to the situation here presented.

The decision of April 3, 1934, 13 Comp. Gen. 258, to which you refer, had relation to the broad provisions of section 6 of the Retirement Act of May 29, 1930, 46 Stat. 474, and of section 7 of the Employees' Compensation Act of September 7, 1916, 39 Stat. 743, prohibiting payment of a retirement annuity and disability compensation to the same person for the same period of time. The conclusion of that decision was required under the terms of the statutes there for consideration but what was there held has no bearing upon the instant case. See, generally, 18 Comp. Gen. 308.

You are advised, therefore, that there appears no inhibition against the payment of a “survivor" annuity to a beneficiary while such beneficiary is employed in a civilian position and is in receipt of active service compensation.

It is understood that the question stated in the penultimate paragraph of your letter, supra, has not yet arisen. With reference thereto it may be stated that if the position in which the beneficiary may be employed falls within the purview of the Retirement Act it would appear that retirement deductions should be made regularly from

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the compensation paid, and, of course, the question of a right to an annuity based upon such service would be for determination under the laws in force at the time the right to an annuity arises.

Under section 3 of the act of December 29, 1941, granting to certifying officers the right to obtain decisions by the Comptroller General, a certifying officer is entitled to a decision only on a question of law involved in payment on a specific voucher presented to him for certification.

Comptroller General Warren to J. O. Carr, Esq., United States Attorney, June 24, 1942:

I have your letter of June 10, 1942, as follows:

The Government is acquiring for condemnation, by my office and the office of Mr. Carlisle Higgins, District Attorney of the Middle District, certain lands for Camp Butner located in Granville County, which is in the Eastern District, and in Durham and Person Counties which is in the Middle District. An office is set up at Durham, N. C., by the Department of Justice for the purpose of acquiring and preparing the data by way of title abstracts, etc., necessary to be used in these condemnation proceedings in the Eastern and Middle Districts respectively. This office is in Durham and no doubt wil! have to be frequently visited by the District Attorney of the Eastern District or some representative of his for conferences with reference to the title abstracts and acquisition of this land.

Section 481, title 28, United States Code, provides:

"There shall be appointed in each District, including the District of Columbia, a person learned in the law to act as attorney for the United States in such District." [Italics mine.]

I notice that the case of U. S. v. Winston, 170 U. S. 522 holds :

"The District Attorney appointed under this section is the District Attorney of the United States in the district. So far as locality is concerned, the boundaries of the districts are the limits of duty. Within these boundaries be is to discharge all his official duties. Beyond them he is not called to act."

Question: In the event the District Attorney should decide that it is to the interest of the Government to go or send a representative to Durham, outside of the District, for the purpose of a conference or obtaining from those acquiring such information, could he legitimately charge per diem and travel expenses for such trips?

This is remanded to you for decision under section 3, Public Law 389, 77th Congress, approved December 29, 1941, so that I may properly make out such account in the event the expense is incurred.

Section 3 of the act of December 29, 1941, 55 Stat. 876, provides as follows:

The liability of certifying officers or employees shall be enforced in the same manner and to the same extent as now provided by law with respect to enforce ment of the liability of disbursing and other accountable officers; and they shall have the right to apply for and obtain a decision by the Comptroller General on any question of law involved in a payment on any vouchers presented to them for certification. [Italics supplied.]

Under the above-quoted section of the statute a certifying officer is entitled to obtain a decision by the Comptroller General only on

a question of law involved in payment on a specific voucher presented to him for certification. In the instant case, not only is your submission not accompanied by a voucher involving the matter set out in your letter, but your letter clearly indicates that as yet no travel of the nature described therein has been performed or expense incident thereto incurred. Under such circumstances, a decision in the premises may not be rendered to you by this office.

If you have any doubt as to whether you are authorized to travel, or to direct anyone connected with your office to travel, at Government expense, under the circumstances related in your letter, it is suggested that the matter be taken up with the Attorney General who has authority to submit such questions to this office for decision.

(B-24989)

COMPENSATION-DOUBLE-RETIRED ARMY OFFICER IN CIVILIAN

POSITION

A retired Army officer, not falling within one of the exceptions in the act of July 31, 1894, as amended, prohibiting persons whose annual compensation in one office amounts to $2,500 or more from holding another office to which compensation is attached, holds an office, and his retired pay is compensation attached to an office, within the meaning of the act, so that his appointment to a regular full time Government civilian position at a salary exceeding $2,500 per annum is void ab initio, and payment of the salary of such position from the date of appointment is illegal, irrespective of whether he refunds his retired pay.

While a retired Army officer who receives retired pay of less than $2,500 per annum is not prohibited by the act of July 31, 1894, as amended, from receiving less than $2,500 per annum in a Government civilian position, under section 212 of the act of June 30, 1932, the combined rate of civilian compensation and retired pay may not exceed $3,000 per annum, and, in the event the combined rate exceeds such limitation, it is required that the civilian compensation be paid in full and that the deductions necessary to bring the combined rate within the limitation be made from the retired pay. Comptroller General Warren to the Federal Security Administrator, June 25, 1942:

I have your letter of June 10, 1942, as follows:

Mr. Hugh M. Gregory has received an appointment effective as of August 25, 1941, as Associate Field Representative (Social Protection) P-3 (180) $3,200 P. A. Office of the Administrator, Office of Defense Coordination, Social Protection, under the Federal Security Administrator, for a term not to exceed the duration of the emergency and subject to a character investigation.

Mr. Gregory served as a Commissioned Officer in the United States Army from December 1916 to October 1927 and has been retired under section 24b of the Act of Congress of June 24, 1920, and is entitled to retired pay at the present time at the rate of $57.50 per month, but he has made a refund to the Government of all his retired pay since he has been employed by the Federal Security Agency. Mr. Gregory was not retired for "injuries received in battle or for injuries or incapacities incurred in line of duty."

Attention is invited to section 2 of the Act of Congress of July 31, 1894, 28 +. 205 which recites in part that:

* No person who holds an office, the salary or annual compensation attached to which amounts to the sum of $2,500 shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law

Attention is likewise invited to section 212 of the Economy Act of June 20, [30] 1932, 47 Stat. 406, which recites as follows to wit:

"(a) After the date of the enactment of this act, no person holding a civilian office or position appointive or elective, under the United States Government or the municipal government of the District of Columbia or under any corpora tion, the majority of the stock of which is owned by the United States, shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services mentioned in the Pay Adjustment Act of 1922 (U. S. C., title 37), at a rate in excess of an amount which, when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $3,000; and when the retired pay amounts to or exceeds the rate of $3,000 per annum such person shall be entitled to the pay of the civilian office or position or the retired pay, whichever he may elect. As used in this section, the term 'retired pay' shall be construed to include credits for all service that lawfully may enter into the computation thereof.

"(b) This section shall not apply to any person whose retired pay plus civilian pay amounts to less than $3,000: Provided, That this section shall not apply to regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States (47 Stat. 382, June 30, 1942; 5 U. S. C. 59a)."

In view of the premises your decision is respectfully requested upon the following questions to-wit:

1. Is Mr. Gregory legally authorized to continue to hold the said position with the Federal Security Agency to which he has been appointed, provided he shall continue to refund his said retired pay of $57.50 per month?

2. Would Mr. Gregory have the right to hold any position with the Federal Security Agency, the annual compensation attached to which amounts to the sum of $2,500 or more provided Mr. Gregory shall refund to the Government as long as he holds such a position the said retired pay of $57.50 per month? 3. In view of the premises above set forth what would be the highest annual salary that the Federal Security Agency would be authorized to pay Mr. Gregory for his services?

4. In view of the premises above set forth is the Government entitled to any refund out of the annual salary of $3,200 per annum which the Federal Security Agency has been paying to Mr. Gregory, and if so, what amount of said annual salary that has been paid to Mr. Gregory should be refunded to the United States?

The full text of the provision in section 2 of the act of July 31, 1894, 28 Stat. 205, quoted in your letter, as amended, has been incorporated in the United States Code as section 62 of title 5, and reads as follows:

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 authorized thereto by law; but this shall not apply to retired officers of the Army, Navy, Marine Corps, or Coast Guard 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. Retired enlisted men of the Army. Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement. (Amended July 30, 1937, c. 545, § 6, 50 Stat. 549; June 25, 1938, c. 694, 52 Stat. 1194.)

It is understood the civilian office or position of "Associate Field Representative (Social Protection) P-3 (180) $3,200 P. A.” to which