A basic salary of $3,200 per year, with an annual increase in salary of $100 for five years, or until a maximum salary of $3,700 per year is reached. CLASS 12.-Supervising principals.

A basic salary of $4,000 per year, with an annual increase in salary of $100 for five years, or until a maximum salary of $4,500 per year is reached.

Superintendent of schools.

The school officers provided for in article II of this act during the first year of service shall receive compensation at the basic salary fixed herein and not receive credit for services prior to the passage of this act.

ARTICLE V.-Method of promotion of employees.

SEC. 8. That on and after July 1, 1924, teachers, school officers, and other employees promoted from a lower to a higher salary class or position shall receive a salary in the salary class or position to which promoted which is next above the salary in the salary class or position from which promoted.

It is understood from the first paragraph of your letter that the position now held by Dr. Huber-professorship at the Wilson Teachers College-now has been allocated by the Board of Education in salary class 12. As to the authority for such action, see 17 Comp. Gen. 147. All three positions occupied by Dr. Huber, viz, (1) assistant professorship, salary class 11, prior to February 3, 1941, (2) the temporary position of acting president of Wilson Teachers College allocated by law (appropriation act approved July 3, 1930) in salary class designated in the Teachers Salary Act as "first assistant superintendent" during the period February 3, 1941, to June 30, 1941, and (3) his present position at Wilson Teachers College in salary class 12, are subject to (a) the provision of law in the Teachers Salary Act fixing a range of salary rates through which the teachers and officers of the public schools must, under the conditions therein stated, be advanced automatically once a year, and (b) the provision that during the first year of service such teachers and officers "shall receive compensation at the basic salary fixed herein," which means the minimum salary rate of the salary class occupied.

Section 8 of article V of the act prescribed a rule for fixing the initial salary rate of teachers and officers upon promotion from a lower to a higher salary class under which the teacher or officer loses no salary; that is, the initial salary in the higher grade is the next above the salary rate in the lower grade from which promoted, but neither that section nor any other part of the statute prescribes any rule for fixing the initial salary rate of a teacher or officer upon demotion from a higher to a lower salary class. However, section 8, article V, of the act seems to suggest that the Congress did not intend any greater loss of salary than necessary incident to the permanent adjustment by transfer, demotion, etc., of teachers and officers remaining continuously in the service; that is to say, so far as possible the

teachers and officers would retain the salary acquired through the requisite number of years' service by operation of the salary advancement plan prescribed by the statute. See 7 Comp. Gen. 295; 15 id. 526, 527, relating to postal employees in automatic salary grades. Compare 14 Comp. Gen. 357 relating to reinstatement of teachers.

Hence, where it is necessary, due to exigencies of the service, to demote a teacher or officer from a higher to a lower salary class in both of which the officer or teacher occupied a permanent position, there would appear to be some basis for the view that the statute does not require that the teacher or officer must be reduced to the minimum salary rate of the lower salary class through which advancement previously may have been made on the basis of longevity and satisfactory service. But that is not the situation here; and I find no legal basis for the view that the statute may be construed as saving any salary or granting any advantage for salary purposes upon the return to a permanent position in a lower salary class on the basis of a salary rate received in a higher salary class to which a teacher or officer had been appointed or promoted for a temporary period to fill a vacancy pending the filling thereof by permanent appointment. If the statute could be so construed that would enable the Board of Education, by administrative action, to defeat the purpose and intent of the statute (which is to grant automatic increases in compensation only upon the basis of longevity and satisfactory service) through means of temporary appointments to positions in higher salary classes and the return of such teachers and officers to their permanent positions in lower salary classes at salary rates above that to which they could have advanced under the regular advancement plan. See the decision of October 28, 1941, B-21205, 21 Comp. Gen. 386, involving the retransfer of Census employees to their permanent positions from temporary positions held during the peak of the census.

Dr. Huber was appointed as acting president of Wilson Teachers College February 3, 1941, and held that temporary position until June 30, 1941, a period of approximately five months, in which he received $5,000 per annum, the minimum of the salary class in which the position had been allocated by law. That appointment was for a definite temporary period pending the filling of the vacancy by permanent appointment. To hold that upon the basis of this five months' service he acquired the right to the maximum salary rate of $4,500 per annum in salary class 12—a class next above that in which Dr. Huber previously had served in a permanent status-with a range of six salary rates from $4,000 to $4,500 per annum, inclusive, through which range it would have taken him five years to advance automatically in accordance with the advancement plan prescribed by the statute, would be unreasonable and unfair to other officers and teachers in salary class 12 and would tend to defeat the purpose and intent of the statute.

470350m-42-30

I have to advise, therefore, that Dr. Huber's initial salary rate in salary class 12 must be based, not upon the salary he received in his temporary appointment as acting president of Wilson Teachers College, but upon the basis of the salary rate he received in his permanent position in salary grade 11, which was $3,700 per annum, the maximum salary rate of that class. Upon that basis, his initial salary in salary class 12 is $4,000 per annum, the minimum salary rate of that class which also is the next rate therein above $3,700 per annum, the rate received in salary class 11 (section 8, article V of the statute).

(B-20719)

PRIVATE PROPERTY-DAMAGES BY OPERATIONS OF NAVAL

AIRCRAFT

If the Secretary of the Navy should determine, pursuant to an appropriation provision authorizing him to consider, etc., and pay from the appropriation claims for damages to private property growing out of the operations of naval aircraft, that damages resulted to the owner of milch goats which were frightened when naval aircraft operated in the vicinity of the goat dairy, payment may be made from the applicable appropriation, “Aviation, Navy," of such amount as may be found due. 3 Comp. Gen. 234; 4 id. 1074; and 13 id. 349, distinguished.

Comptroller General Warren to the Secretary of the Navy, November 10, 1941: I have your letter of September 19, 1941 (file L11–15/QQ (410130) K) as follows:

The Navy Department has under consideration a claim, dated August 5, 1941, submitted by H. L. Crosby and Zelda Crosby, doing business as LaYan's Goat Dairy, Route 2, Box 341, Pensacola, Florida, in the amount of $456,00, for damages sustained by them as operators of said dairy, caused by operation by the Navy Department of Saufley Naval Training Field, U. S. Naval Air Station, Pensacola, Florida. The damages for which claim is made include loss of milk from claimants' milch goats, loss of kids and doe goats and loss of use of fortyeight acres of improved pasture land, all occurring during the period between September 1, 1940, and June 15, 1941.

It appears from the investigation made of this claim that these two claimants commenced the operation of their goat dairy in the summer of 1936, that they operated this dairy successfully until September 1, 1940, and that between September 1, 1940, and June 15, 1941, they sustained losses after the opening of Saufley Naval Training Field at U. S. Naval Air Station, Pensacola, Florida, in the amount of $456.00.

These claimants state that their milch goats are timid and temperamental by nature, that the milk supply greatly decreased, that many doe goats heavy with kid were frightened by naval aircraft flying over LaYan's Goat Dairy and fell paralyzed from fright, never to walk again or deliver their kids. During the period in question, September 1, 1940, to June 15, 1941, the claimants likewise assert that they were deprived of the use of forty-eight acres of improved pasture land on which they pastured their goats, and that such deprivation resulted from the operation of naval airplanes over said forty-eight acres of improved pasture land. The claimants have been forced to discontinue their business and to dispose of their entire herd of goats.

The flights during which this damage occurred were official flights, duly authorized. No copies of flight orders are available.

The current Naval Appropriation Act, approved May 6, 1941 (Public Law No. 48, 77th Congress), provides under the appropriation, "Aviation, Navy," as follows:

That the Secretary of the Navy is hereby authorized to consider, ascertain, adjust, determine, and pay out of this appropriation the amounts due on claims for damages which have occurred or may occur to private property growing out of the operations of naval aircraft where such claim does not exceed the sum of $500:

*

"

In the Comptroller General's decision of October 20, 1923 (3 Comp. Gen. 234), it was held (syllabus):

"In the absence of negligence, the landing of an airplane in an adjoining field or the flying of the airplane over the field in which cattle are located does not render the Government liable for damages to the cattle or the fence due to the fright and stampeding of the cattle."

In a later decision of June 30, 1925 (4 Comp. Gen. 1074), the Comptroller General held (syllabus):

“A claim covering damages for loss of a horse resulting from operation of an Army balloon, when not in excess of $250, may be allowed, under the act of June 7, 1924, 43 Stat. 492, where it is shown that the horse of the claimant became frightened while the balloon was passing over the claimant's farm, ran into a barbed-wire fence, and was so injured that it was necessary for it to be killed." In the text of this decision it is stated:

"The facts in this case are essentially different from the facts involved in the case decided in 3 Comp. Gen. 234."

In a still later decision of May 15, 1934 (13 Comp. Gen. 349), it is held (syllabus):

"The appropriations for the maintenance of landing fields under the Department of Commerce are not available for the payment of consequential damages to adjoining property owners alleged to have resulted from the lawful and proper maintenance by the United States of such a landing field.

"The drifting of sand and dust from a landing field for airplanes to adjoining property is a consequential matter and the United States is not liable in damages to such adjoining property owners, especially in the absence of showing of negligence in the maintenance and operation of such landing field."

While payment of this claim would appear to be authorized in accordance with the decision published in 3 Comp. Gen. 234, supra, the Navy Department is in doubt as to whether the appropriation, "Aviation, Navy," for the current fiscal year may be considered legally available for this purpose, in view of the later decisions of your office on this subject, as published in 4 Comp. Gen. 1074 and 13 id. 349.

In view of the foregoing, your decision is requested as to whether the current appropriation, “Aviation, Navy," may be considered legally available for payment of this claim.

The statement made in your letter to the effect that "payment of this claim would appear to be authorized in accordance with the decision published in 3 Comp. Gen. 234," but that doubt in the matter exists "in view of the later decisions of your office on this subject, as published in 4 Comp. Gen. 1074 and 13 id. 349," indicates some confusion or misconception as to the effect of those decisions. It was held in 3 Comp. Gen. 234 that public funds were not available to pay the damage claim there under consideration, whereas in the later decision published in 4 Comp. Gen. 1074 it was held that the claim there involved was properly for payment from such funds. Thus, if payment were to be regarded as "authorized in accordance with" either of those decisions it would appear to be the later decision which would provide such authority and not the earlier one as indicated in your letter. However, for reasons hereinafter set forth, neither of the decisions cited in your letter is to be regarded as determinative of the action to be taken in the present case.

The decision of October 20, 1923, 3 Comp. Gen. 234, was decided on the basis of the particular facts there involved. It was alleged by the claimant in that case that his cattle were frightened by the noise of a low-flying Army airplane, that they broke through the pasture fence, and that "three men were engaged approximately four days in locating and getting them back into the pasture." The claim was originally filed in the amount of $732, consisting of $702 as damage by reason of shrinkage of the cattle through fright and loss of feed, and $30 for the labor in rounding them up and repairing the fence. It will be noted that the enlisted men who were in the Army airplane testified "that the fence was in a very dilapidated condition; that the cattle were in the far corner of the pasture when the airplane passed over them at an altitude of approximately 500 feet and that subsequently they were informed the perverseness of the cattle had frequently led them to break pasture."

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The Board of Officers assigned to investigate the matter reported adversely thereon and the Secretary of War approved their findings, denying the claim. Subsequently, the claimant requested reconsideration of the claim on the ground of newly discovered evidence—in the form of two affidavits of employees of said claimant to the effect that the fence was in good order and that the noise of the airplane caused the cattle to stampede. The then Secretary of War reconsidered the action of his predecessor-who, as above noted, had previously disapproved the claim-and recommended an allowance of $244.69. However, this office in the decision reported in 3 Comp. Gen. 234, held that the affidavits, which were not executed until after the former Secretary of War had approved denial of the claim, did not meet the test of new and material evidence and concluded that "the matter may be classed as an accidental happening for which there is no liability in damages."

In decision of June 30, 1925, 4 Comp. Gen. 1074, the damage claim was for the loss of a horse which ran into a barbed wire fence and was severely injured, as the result of being frightened by a low-flying Army balloon. The claim was approved by the Chief of Air Service and the Assistant Secretary of War on the basis of findings favorable to the claimant as submitted by a Board of Officers assigned to investigate the claim; and this office, in said decision, authorized payment of the claim pursuant to the terms of a provision in the Appropriation Act of June 7, 1924, 43 Stat. 492, that:

not more than $4,000 may be expended for settlement of claims (not exceeding $250 each) for damages to persons and private property resulting from the operation of aircraft at home and abroad when each claim is substantiated by a survey report of a board of officers appointed by the commanding officer of the nearest aviation post and approved by the Chief of Air Service and the Secretary of War