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the scrap steel in excess of established ceiling prices. There has been cited no legal authority for such a proposition and I know of none. The rule has been frequently stated and long applied that in exchanging old material or equipment for new, cash bids, also, must be solicited and the award made on the basis of the lowest net cost to the Government. 26 Comp. Dec. 534; 3 Comp. Gen. 304; 5 id. 798; 7 id. 230; 15 id. 811; 18 id. 227; 19 id. 313. That the rule is a salutary one is hardly open to question and there appears no reason why it should not apply to transactions of Federal Prison Industries, Inc., involving the disposition of scrap steel.
Under the circumstances this office may approve use of the sug gested provision only in the event cash bids, also, are solicited and the award made on the basis of the lowest net cost to the Government, in accordance with the usual procedure.
COMPENSATION-WITHIN-GRADE PROMOTIONS-APPLICABILITY OF
ACT, AUGUST 1, 1941
The within-grade salary advancement plan provided by the act of August 1, 1941, is expressly limited to employees occupying permanent positions within the scope of the compensation schedule fixed by the Classification Act who are compensated on a per annum basis, and, therefore, said act is applicable only to those employees of the Mail Equipment Shops, Post Office Department, who are compensated on a per annum basis in accordance with the Classification Act, and not to those in the clericalmechanical service who are compensated on an hourly basis under the Classification Act or the 40-hour week statute of March 28, 1934.
Comptroller General Warren to the Postmaster General, October 13, 1941: I have your letter of September 24, 1941, as follows:
Reference is made to prior decisions construing the provisions of the Automatic Promotion Act, Public No. 200, otherwise know as the "Ramspect Act." Question has been raised as to the status of the employees of the Mail Equipment Shops. There are three distinct classifications of employees working in the shops, some of whom come within the Clerical, Administrative, and Fiscal Service, some within the Custodial Service, and some in the Clerical-Mechanical grades. The first two classes of employees are paid on a per annum basis, whereas those of the last class are paid at a per diem rate based on six days of service per week but with their salaries re-stated on an hourly basis due to the fact that they work five days per week.
Your decision is requested whether the provisions of Public 200 apply to all or any of the employees of the Mail Equipment Shops.
The act of August 1, 1941, Public Law 200, 55 Stat. 613, amended section 7 of the Classification Act of 1923, 42 Stat. 1488, to provide in pertinent part, as follows:
(b) All employees compensated on a per annum basis, and occupying permanent positions within the scope of the compensation schedules fixed by this act, who have not attained the maximum rate of compensation for the grade in which their positions are respectively allocated, shall be advanced in compensation
The compensation schedules prescribed by the Classification Act are stated broadly under certain specific headings, to wit: (1) Professional and scientific service, (2) subprofessional service, (3) clerical, administrative, and fiscal service, (4) custodial service, and (5) clerical-mechanical service. With the exception of the clericalmechanical service, the compensation rates in each of these services are fixed upon a per annum basis-the compensation rates in the clericalmechanical service being fixed upon an hourly basis.
Under the express terms of section 2 (b) of the act of August 1, 1941, supra, the within-grade compensation advancement plan is expressly limited to employees "compensated on a per annum basis," and occupying "permanent positions within the scope of the compensation schedules fixed by this [Classification] Act.”
It is understood from your letter (see, also, p. 896, The Budget, 1942), that the employees of the Mail Equipment Shops are compensated under the headings (1) clerical, administrative and fiscal service, (2) custodial service and (3) clerical-mechanical service. The Budget also lists one position in the Mail Equipment Shops as being in the subprofessional service and a number of positions as "skilled trades (not classified)”—the latter presumably coming under the -40-hour week statute, namely, section 23 of the act of March 28, 1934, 48 Stat. 522. See 13 Comp. Gen. 367, 15 id. 308.
Referring to the concluding paragraph of your letter, you are advised that the act of August 1, 1941, Public Law 200, is applicable to all employees of the Mail Equipment Shops who have been classified as in the (1) clerical, administrative and fiscal service, (2) subprofessional service, and (3) custodial service—that is, to those whose compensation is fixed, on a per annum basis, in accordance with the provisions of the Classification Act and that it is not applicable to those employees in the clerical-mechanical service whose compensation is paid on an hourly basis under the provisions of the Classification Act, or of the act of March 28, 1934, supra.
RETIREMENT-MILITARY-MILITARY OR NAVAL ACADEMY SERVICE
Army officers whose only service prior to November 12, 1918, was cadet service in the Military or Naval Academy are not entitled to the retirement benefits of the acts of June 13, 1940, and July 29, 1941, since the general language "who served in any capacity * * * prior to November 12, 1918," as used in said acts to specify the class of Army officers entitled to the benefits provided therein, does not overcome the specific prohibition in section 6 of the act of August 24, 1912, against counting Academy service "in computing for any purpose the length of service of any officer of the Army."
Assistant Comptroller General Elliott to the Secretary of War, October 13,
I have your letter of September 25, 1941, as follows:
Reference is made to the act of June 13, 1940 (54 Stat. 379), and the act of July 29, 1941 (Public Law 190, 77th Cong.), which contain provisions relating to the retirement of officers of the Army. Each statute employs the words "who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918," in defining a class entitled to annual retired pay equal to 75 per centum of active-duty annual pay upon retirement. The specific question has arisen in the War Department whether service as a cadet at the United States Military Acadamy or service as a midshipman at the United States Naval Academy prior to November 12, 1918, is service within the meaning of the quoted provision of the statutes.
The cadets at the United States Military Academy have long been recognized as a part of the Army (United States v. Morton, 112 U. S. 1, and statutes therein cited; sec. 2, act June 3, 1916, 39 Stat. 166, as amended by act June 4, 1920, 41 Stat. 759, 10 U. S. C. 4). However, the counting by certain officers of the Army of service as a cadet "in computing for any purpose the length of service" has been prohibited by various statutes first among which was the act of August 24, 1912 (37 Stat. 594; 10 U. S. C. 684). The prohibition of these statutes extends to service as a midshipman at the United States Naval Academy. Your office recently recognized that service as a cadet is service in the Army in deciding that the act of August 24, 1912, supra, had no application in the computation of longevity pay for an enlisted man (MS. Comp. Gen. A-69538, Mar. 18, 1936). In view of these statutes and authorities, it appears that the broad term "in any capacity" as used in the statutes first mentioned embraces service as a cadet at the United States Military Academy for the purpose of establishing membership in a class entitled to the benefits provided by those statutes, although not for the purpose of computing "the length of service" of an officer, which is prohibited by the act of August 24, 1912, supra. Service as a midshipman at the United States Naval Academy seems to be governed by similar principles. It is also pertinent to mention that while commissioned service prior to November 12, 1918, was required by the act of July 31, 1935 (49 Stat. 505), to establish eligibility for retirement in certain cases, the amendment by the act of June 13, 1940, supra, broadened the definition of the eligible class to include service "in any capacity."
As the determination of the specific question presented will affect the amount of retired pay of certain persons whose cases are now pending, it is requested that an advance decision in the premises be rendered at the earliest practicable date. The act of June 13, 1940, 54 Stat. 379, 380, contains the following provision:
That any officer on the active list of the Regular Army or Philippine Scouts who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, shall upon his own application be retired with annual pay equal to 75 per centum of his active-duty annual pay at the time of his retirement unless entitled to retired pay of a higher grade as hereinafter provided, except that officers with less than twenty years' service and officers who are under investigation or who are awaiting trial by courts martial or the result of such trial, or whose cases are pending before courts of inquiry shall be retired only when the application for retirement in each case has been approved by the Secretary of War:
Section 2 of the act of July 29, 1941, 55 Stat. 606, contains the following provision:
* Officers removed from the active list who have seven or more completed years of commissioned service at the time of removal shall be retired with retirement pay computed as follows: Any officer so retired who has over thirty years' service or any officer so retired who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, shall be retired with annual pay equal to 75 per centum of his active duty annual pay at the time of his retirement;
Section 5 of the act of July 31, 1935, 49 Stat. 507 (which was amended by section 3 of the act of June 13, 1940), contained a provision as follows:
That any officer of the Regular Army or Philippine Scouts below the grade of major who served as a commissioned officer in the Army of the United States prior to November 12, 1918, and whose application for retirement under the provisions of this section has been approved by the President shall be retired in the grade of major with retired pay computed as hereinbefore provided as for a major with the same length of service:
Section 6 of the act of August 24, 1912, 37 Stat. 594, is as follows: That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy or to the Naval Academy shall not be counted in computing for any purpose the length of service of any officer of the Army.
In the case of United States v. Noce, 268 U. S. 613, the Supreme Court of the United States had before it the question whether an Army officer was entitled to have service in the United States Military Academy included in the calculation of his longevity pay. In that case it was contended for the appellee, and the Court of Claims had held (58 Ct. Cls. 688), that so much of section 6 of the act of August 24, 1912, supra, as prohibits the computing of service as a cadet at the Military Academy for the purpose of longevity pay was by necessary implication repealed by the proviso to section 11 of the act of May 18, 1920, 41 Stat. 603, which is as follows:
Provided, That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services.
The Supreme Court rejected the appellee's contention and reversed the judgment of the Court of Claims. Mr. Chief Justice Taft, in delivering the opinion of the court, stated (268 U. S. 617–619):
The question whether service in either of the Academies was Army or Navy service which should count for longevity pay and retirement was a long standing issue between the officers of the Army and Navy who were graduates of the two academies on the one hand and the officers who were not graduates and the accounting officers of the Treasury on the other. This is evident from the decision of this Court in United States v. Morton, 112 U. S. 1; and United States v. Watson, 130 U. S. 80. The legislative history of the Act of 1912 and that of 1913 shows that the question was much contested between the two Houses. The Report of the House Committee on Military Affairs (H. R. 270, 62nd Congress, 2nd Sess.) gives an extended argument against the practice of computing cadet service for pay and retirement purposes. It said: "The result of this practice is that a graduate of the Military Academy who was appointed a second lieutenant, after having been educated for that appointment for four or more years wholly at the expense of the Government, receives his first 10 percent increase of pay after not more than one year of service as a commissioned officer, whereas the second lieutenant who is appointed from civil life, after having been fitted for the appointment wholly at his own expense, must serve for five full years as a commissioned officer before he can receive his first 10 percent increase of pay. And the same disparity between the two cases continues to the end."
After pointing out other discriminations arising from this practice, the report continues:
"It is but just to say that this preposterous practice did not originate with the War Department. It was the result of a decision rendered by the Supreme Court October 27, 1884 (Morton v. United States, 112 U. S. 1), to the effect that the time during which a person has served as a cadet is to be regarded as "actual time of service in the army."
After referring specifically to retirement, the report says:
"These are additional discriminations against the civilian appointee who pays for his own preliminary education and in favor of the graduate of the
Military Academy who is educated for his commission at the expense of the Government."
In view of this long continued controversy which before 1912 had finally been settled only by two decisions of this Court, it is inconceivable that the two Acts of 1912 and 1913, nullifying the effect of those decisions, and passed after a heated struggle, should have been repealed without mention of the cadet service in the proviso now said to have worked this result. As already pointed out, the Act of which this was a part was detailed in its reference to the commissioned officers, the noncommissioned officers and to the enlisted men of the various six services affected, and to the pay and increases which they were to receive. Had it been intended to increase the "fogey" pay, as the longevity pay is called, for only a part of the commissioned officers of the Army and only a part of the commissioned officers of the Navy, and only a part of the commissioned officers of the Marine Corps in such a specific Act, the favor thus to be conferred upon them would certainly have been set forth in language whose meaning could not be mistaken.
It is, indeed, very difficult to say that there is any real inconsistency between the proviso of 1920 and the Acts of 1912 and 1913. It is supposed to be shown in the use of the words "any or all the services" and it is said that as "any" may mean one or more, it may apply to the Army alone, and can only be satisfied by making it apply to the total service in the Army alone and must therefore mean service in the Army as construed by this Court in the Morton Case and the Watson Case, in which it was held that, under then existing legislation, service in the Military Academy was service in the Army. This, it seems to us, is a strained method of first finding an inconsistency, by no means clear, if it exists at all, and then erecting it into an implied repeal. Implied repeals are not favored. United States v. Greathouse, 166 U. S. 601, 605; Frost v. Wenie, 157 U. S. 46, 58; United States v. Yuginovich, 256 U. S. 450, 463.
In your letter it is suggested that the term "in any capacity” as used in the acts of June 13, 1940, 54 Stat. 379, and July 29, 1941, 55 Stat. 606, appears to embrace "service as a cadet at the United States Military Academy for the purpose of establishing membership in a class entitled to the benefits provided by those statutes, although not for the purpose of computing 'the length of service' of an officer, which is prohibited by the act of August 24, 1912." From the history of section 6 of the act of August 24, 1912, as explained in the abovequoted opinion of the Supreme Court, it is hardly to be doubted that the Congress intended by that section not only to provide against the inclusion of service at the Military and Naval Academies in the computation for any purpose of the length of service of any Army officer, but also that service at the Academies should be excluded in determining whether an Army officer has had service within the meaning of laws such as the acts of June 13, 1940, and July 29, 1941, conferring substantial benefits upon officers who have had service in the military or naval forces during a specified period. In other words, the term "length of service," as used in section 6, is synonymous with "service."
Furthermore, under established rules of statutory construction, it may not be inferred that the Congress intended the broad general language of the acts of June 13, 1940, and July 29, 1941, to operate as a modification of the specific inhibition of section 6 of the 1912 act. Such a conclusion would be repugnant to the reasoning of the Supreme Court in the Noce case, supra, and in numerous other de