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orders as have heretofore been, or may hereafter be, promulgated by the President."
The term "flying officer" was defined in the act approved July 2, 1926, supra, as an officer who has received an aeronautical rating as a pilot of service types of aircraft. Said definition has, however, been amended by section 3, act approved June 16, 1936 (49 Stat. 1524), and further amended by section 1, act approved October 4, 1940 (Public No. 795, 76th Congress), to read as follows:
a flying officer is defined as one who has received an aeronautical rating as a pilot of service types of aircraft or one who has received an aeronautical rating as an aircraft observer or as any other member of a combat crew under such regulations as the Secretary of War may prescribe."
Executive Order No. 5865, dated June 27, 1932, issued pursuant to the provisions of section 20 of the act of June 10, 1922, and section 6 of the act of July 2, 1926, prescribes that:
"Each officer, warrant officer, or enlisted man of the Army who is duly assigned to a course of instruction for qualification as aircraft pilot or alrcraft observer * * shall be required to participate regularly and fre
quently in aerial flights."
This Executive order also prescribes flight requirements for personnel who are detailed to duty requiring participation regularly and frequently in aerial flights as follows:
"(a) During one calendar month.-10 or more flights totaling at least 3 hours, or in lieu thereof to be in the air a total of at least 4 hours.
"(b) During 2 consecutive calendar months, when the requirements of subparagraph (a) above have not been met.-20 or more flights totaling at least 6 hours, or in lieu thereof to be in the air a total of at least 8 hours.
"(c) During 3 consecutive calendar months, when the requirements of subparagraph (b) above have not been met.-30 or more flights totaling at least 9 hours, or in lieu thereof to be in the air a total of at least 12 hours."
During the past several years officers from various branches of the Army have been sent to the Air Corps Training Center for training as aircraft pilots and while undergoing such training were detailed to duty requiring them to participate regularly and frequently in aerial flights. These officers held rank as second lieutenants and the $1,440 limitation did not affect the rate of increased pay they received, since 50 per centum of their base pay was less than $1,440 per annum. However, there are now approximately 150 such officers undergoing training at the Air Corps Training Center for aircraft pilots, and it is probable that a larger number will be detailed to such duty during the current fiscal year. There is also the possibility that such officers may be detailed for training as observers, navigators, bombardiers, etc. None of these officers can be classified as "flying officers" as defined by law, because they have not been rated as pilots, observers, etc., and the question arises as to whether $720 is the maximum sum which may be paid these officers during the current fiscal year for duty involving flying.
It would appear from Report No. 1912, 76th Congress, House of Representatives, on H. R. 9209, that the Congress did not intend that the limitation in question should involve officers undergoing flight training, but that same was intended to apply primarily to flight surgeons and officers from other branches while flying in the capacity of observers. Officers who are assigned to flight training with a view to qualifying as pilots, and who are required to fly regularly and frequently and assume the same hazards as flying officers with combat units are believed to be clearly not within the group of officers which the legislation in question was intended to affect.
Your decision is requested as to whether or not the limitation upon flying pay contained in the military appropriation act is legally applicable to the pay of officers from branches other than the Air Corps while they are undergoing training as aircraft pilots, observers, navigators, bombardiers, etc., which requires them to participate regularly and frequently in aerial flights.
Reference is made in this connection to your decisions of October 30, 1935 (15 Comp. Gen. 359 ), and November 11, 1935 (15 Comp. Gen. 393).
The pertinent part of Report No. 1912 of the Committee on Appropriations, House of Representatives, in connection with the Military
Establishment appropriation bill, fiscal year 1941 (H. R. 9209), is as follows:
Especial attention probably should be directed to the reduction touching flight pay of nonflying officers. For a number of years prior to the current fiscal year the number of medical officers (flight surgeons) in a flight-pay status was limited by the annual appropriation acts to five, who, along with other nonflying officers, were limited as to flight pay to a rate of $1,440 per annum. For the current fiscal year the number of flight surgeons was increased originally to 36 and later to 86, and the flight pay was reduced to the rate of $720 per annum. The pending budget provides for continuing the number of flight surgeons at 86, but puts the flight-pay rate back to $1,440. Of course, the $720_rate discriminates between flight surgeons and other nonflying officers, of whom the budget makes provision for 50 on a full-year basis. These other nonflying officers are identified with practically every branch of the Army.
The committee can see no reason for discrimination, but it is not convinced that the $720 rate is not appropriate, as its allowance is justifiable only upon the ground of increased insurance premiums. The hazard certainly is not as great as in the case of flying personnel, who are in the air vastly more often and generally under more hazardous conditions. However that may be, the committee is proposing to adhere to the $720 rate and to establish that as the rate for all nonflying officers. This course affects not only the accompanying bill, but the naval appropriation bill as well, which contains language subjecting naval nonflying personnel to pay rates prescribed for like personnel of the Army. The naval appropriation bill, as passed by the House, includes provision for 20 flight surgeons and 8 observers.
With respect to such nonflying personnel, under present law, to be entitled to flight pay, they must during each 3-month period make 30 or more flights totaling 9 hours, or be in the air at least 12 hours. It is submitted that that is a perfectly ridiculous requirement as to nonflying officers, particularly as to flight surgeons, who, in the ordinary course, may have no real occasion to go into the air during such a period but a very few times. To get flight pay, therefore, they have to go up and be flown around whether there be any service need for so doing or not. To overcome this seemingly foolish requirement, the committee has included in the pay appropriation a clause designed to entitle nonflying officers to flight pay for the performance of 3 or more flights within each 90-day period, without regard to the duration of such flight or flights.
While this report indicates that the establishment of a maximum flying pay rate of $720 per annum for nonflying officers was induced by the committee's conclusion that the duties of nonflying officers are generally less hazardous than those of flying officers, there is no clear indication that the said maximum was intended to apply only to "flight surgeons and officers from other branches while flying in the capacity of observers." In any event, it is a well-established rule of statutory construction that it is not permissible to refer to committee reports, etc., preceding the enactment of a statute in order to ascertain its meaning except where an ambiguity or uncertainty exists as to the meaning of the words used. 11 Comp. Gen. 380; 14 id. 638; 15 id. 582. The limitation in the Military Appropriation Act, 1941, on "increased pay for making aerial flights" is, by its terms, clearly applicable to any and all nonflying officers. Since the act of October 4, 1940, 54 Stat. 963, contains a definition of the term "flying officer," it follows that an officer not clearly within the statutory definition must be classed as a nonflying officer within the meaning of the language limiting flying pay. You state that officers from various branches of the Army training to be aircraft pilots, and those
who may be detailed for training as observers, navigators, bombardiers, etc., cannot be classified as "flying officers" under the statutory definition of that term, because they have not been given an aeronautical rating as pilots, observers, etc. Accordingly, you are advised that the provision in the Military Appropriation Act, 1941, limiting to $720 per annum the increased pay of "nonflying officers" for making aerial flights is applicable to the pay of officers from any branch of the Army while such officers are undergoing training as aircraft pilots, observers, navigators, bombardiers, etc. See, also, B-11335 to Secretary of the Navy August 2, 1940.
DUAL COMPENSATION ACT OF 1916-APPLICABILITY TO DISTRICT OF COLUMBIA TEACHERS
The first portion of 5 U. S. C. 61, to the effect that the dual compensation act of 1916 shall not apply to teachers of the public schools of the District of Columbia when employed by any of the executive departments or independent establishments of the Government, was temporary legislation appearing in annual appropriation acts during and immediately after the World War period and is no longer in force.
The fact that public school teachers of the District of Columbia are paid their annual salary in ten equal installments and that the school year starts in September and ends in June does not alter the fact that their salaries cover the entire year, so that such a teacher may not be employed by a Federal agency during the summer vacation period where the rate of annual compensation as a public school teacher, when combined with that received as a Federal employee, exceeds the $2,000 limitation of the dual compensation act of 1916.
Comptroller General Warren to the President, Board of Commissioners of the District of Columbia, July 14, 1941:
I have your letter of June 25, 1941, as follows:
The Superintendent of Schools has submitted to the Commissioners a request for advice as to whether public school teachers, clerks, and other employees of the public schools system are subject to the provisions of the act of May 10, 1916 (39 Stat. 120), as amended, commonly known as the Dual Employment Statute. The letter received from the Superintendent of Schools dated June 19, 1941, is as follows:
"As you are aware, public school teachers are paid their annual salaries in ten equal payments exclusive of the months of July and August. The work of teachers will be completed by Friday, June 20, at which time it is contemplated, in accordance with usual practice, they will receive their checks for the complete month of June.
"Likewise, the work of teachers will actually begin on Friday, September 19. By reporting for duty on the opening day for teachers and continuing in service during the month of September the teachers have, in accordance with previous practice, been given their full monthly check for services in September.
"It will be clear, therefore, that these teachers are neither on active duty from about the 20th of June until the 19th of September and that they are not on the payroll between those periods having been paid for their services on June 20 and not being required to report for duty until September 19.
"The question is whether or not such teachers may be employed in the United States navy yard or in the Bureau of Standards.
"One of our shop teachers who teaches woodworking at the Anacostia JuniorSenior High School, Mr. C. F. Foster, will complete his services on June 20 and wishes to be employed in the navy yard as a wood pattern maker. This
teacher is a skilled woodworker and his practical work in the navy yard will be helpful to him as a teacher in the public schools of Washington. On the other hand his skill will be useful to the navy yard where skilled wood pattern makers are needed.
"The second case relates to the Bureau of Standards. The Bureau of Standards has asked the Superintendent of Schools to authorize Dr. Ralph B. Kennard, of the Physics Department of the Wilson Teachers College, to accept temporary employment for a period of three months beginning July 1. Dr. Kennard's service is desired on a problem supported by the Bureau of Aeronautics of the Navy Department involving the redesign of aircraft carbon monoxide indicators which at present are of inadequate accuracy.
"In this connection your attention is invited to the fact that on May 1 Dr. Kennard was elected to the Fellowship of the American Physical Society in consideration of the work which he did on heat transfer at the Bureau of Standards ten years ago. Dr. Kennard's case would be answered by the answer given to the first case cited.
"An additional question, however, is raised respecting each of these cases: namely, would it modify the situation if the Board of Education, under the authority which they have under the law, granted each of these teachers formal leave of absence from service in the public schools, one for the period of two months while the schools are not in session; the other for a period of three months, one month of which is within the period of time when the schools are in session and for which the teacher would receive no pay if he were on leave of absence."
In your decision to the Commissioners of the District of Columbia on January 13, 1923 (2 C. G. 437) it was held that teachers in the night schools of the the provisions of the dual employment statute. Likewise, under date of June [July] 17, 1923 (3 C. G. 24) your office held that teachers of the public schools of the District of Columbia are not in the Federal service and may, therefore, be employed during school vacation as expert examiners at the United States Civil Service Commission, the special appropriation for such examiners exempting them from the requirement of the dual employment statute.
There is some question, in the opinion of the Commissioners, as to whether public school teachers and other school employees may during vacation period or otherwise be employed in Federal service, in the absence of a complete separation from the District service. In your decision of April 23, 1937, (16 C. G. 951) and cases cited therein, you made a distinction between voluntary furlough and involuntary furlough, and concluded that, "this rule is not applicable during periods of voluntary furlough or leave of absence without pay when funds remain available for payment of the salary of the permanent position."
Another important point for consideration here is whether or not the act of May 26, 1908 (35 Stat. 291) permitting salary of teachers, clerks, and librarians in the high and manual-training schools to be paid in ten monthly installments, would place them in a furlough or nonpay status during the other two months of the year, such as would permit them to be employed in other District or Federal services. The act referred to provides in pertinent part:
"That the salaries of all teachers, and clerks, and librarians in the high and manual-training schools, duly elected, whose services commence with the opening day of school and who shall perform their duties, shall begin on the first day of September and shall be paid in ten monthly installments, the first payment to be made on the first day of October, or as near that date as practicable, and the payment for the month of June to be made upon the completion of the school term in June: Provided, That the salaries of other teachers shall begin when they enter upon their duties."
In your decision of December 27, 1940, B-13843, to Lieutenant Colonel W. M. Dixon, F. D., U. S. Army, Finance Office, Washington, D. C., the question was whether the custodial and janitor services of the District schools to whom it was proposed to pay additional compensation for services performed after their regular work day in connection with the Selective Service System, chargeable to the appropriation "Selective Service System (Transfer to War), 1941-1942" may not receive additional pay while so employed. Under the circumstances, these employees were held to be subject to the provisions of the Dual Employment Statute.
The Commissioners would appreciate advice from you as to whether (1) a teacher engaged in instruction of wood-working at the Anacostia Junior High School may be employed at the United States navy yard during the months of
July, August, and part of September 1941, under the circumstances outlined in the Superintendent's letter; (2) whether there would be any objection to the employment by the Bureau of Standards of a teacher at the Wilson Teachers' College for a temporary period of three months beginning July 1, 1941, under the circumstances outlined in the letter of the Superintendent of Schools; (3) if the employment is permissible, what effect, if any, will it have upon the ten-month pay installments.
Section 6 of the act of May 10, 1916, 39 Stat. 120, as amended by the act of August 29, 1916, 39 Stat. 582, provides in pertinent part, as follows:
That unless otherwise specially authorized by law, no money appropriated by this or any other act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum, but this shall not apply to retired officers or enlisted men of the Army, Navy, Marine Corps, or Coast Guard, or to officers and enlisted men of the Organized Militia and Naval Militia in the several States, Territories, and the District of Columbia:
The above-quoted statute is carried in the U. S. Code under sections 58 and 59 of title 5.
Section 61, title 5, U. S. Code, provides, as follows:
Section 58 of this title shall not apply to teachers of the public schools of the District of Columbia when employed by any of the executive departments or independent establishments of the United States Government; nor to teachers in the public schools of the District of Columbia who are also employed as teachers of night schools and vacation schools; nor to employees of the school garden department of the public schools of the District of Columbia; nor to employees of the community center department of the public schools of the District of Columbia. (Oct. 6, 1917, c. 79, § 9, 40 Stat. 384; July 8, 1918, c. 139, § 1, 40 Stat. 823; June 5, 1920, c. 253, § 1, 41 Stat. 1017.)
The first portion of this section 61 was temporary legislation and is no longer in force. That is to say, for several fiscal years, during the World War period and immediately thereafter, the annual appropriation acts for the District of Columbia contained a provision as follows (quoting from the act of July 8, 1918, 40 Stat. 821, 822):
Section six of the legislative, executive, and judicial appropriation act, approved May tenth, nineteen hundred and sixteen, as amended, shall not apply from July fifteenth to September fifteenth, nineteen hundred and eighteen, to teachers of the public schools of the District of Columbia when employed by any of the executive departments or independent establishments of the United States Government.
No such exception to the dual compensation act of 1916 appears in the District of Columbia Appropriation Act, 1942, approved July 1, 1941, Public Law 148.
Teachers of the public schools of the District of Columbia are paid from appropriated funds upon an annual salary basis. The fact that they are paid their annual salary in ten equal installments and that the school year starts in September and ends in June in nowise alters the fact that the salaries so paid cover the entire year. The period between the closing and opening of the schools is a vacation with pay.
It has been held that the dual compensation statute of 1916 is applicable to the teachers of the District of Columbia for periods of service not expressly excepted by other statutes. See decision of August