(B-18204)

PAY-FIRST FOUR MONTHS IN INITIAL ENLISTMENT-LIMITATION APPLICABILITY TO COAST GUARD RESERVES ON ACTIVE DUTY

An enlisted member of the Coast Guard Reserve holding a grade above the seventh when ordered to active duty is entitled to the pay of his grade without regard to the provision in section 12 (a) of the Selective Training and Service Act of 1940, limiting the base pay of enlisted men to $21 per month during the first four months of service in their first enlistment, and this is so even though the man was enrolled in the higher grade and entered on active duty the same day.

Assistant Comptroller General Elliott to the Secretary of the Treasury, July 31, 1941:

There has been received your letter of June 18, 1941, as follows:

Your attention is invited to Section 206 of the Act of February 19, 1941 (Public No. 8) titled the "Coast Guard Auxiliary and Reserve Act of 1941," which reads in part as follows:

"Commissioned officers, chief warrant officers, warrant officers, and enlisted men of the Reserve when engaged on active duty, or on active duty while undergoing training, or when engaged in authorized travel to or from such duty, shall receive the same pay and allowances as are received by commissioned officers, chief warrant officers, warrant officers, and enlisted men of the regular Coast Guard of the same rank, grade, rating, and length of service. In determining length of service for the purposes of this section, there shall be included (a) all periods of active duty under this Act, except active duty while undergoing training, and (b) all other service for which credit is given by law to members of the regular Coast Guard. When members of the Reserve perform active duty or active duty while undergoing training for a period of less than thirty days, such duty performed on the thirty-first day of any month shall be paid for at the same rate as for other days:

Having in mind your decision to the Secretary of the Navy on October 3, 1940 (B-12506), with respect to rates of pay fixed by Section 12 (a) of the Act of September 16, 1940 (Selective Service Act), and your decision of March 17, 1941, as modified by your decision of April 15, 1941 (B-15346), with respect to the right of enlisted men of the first three pay grades of the Navy to the benefits conferred by the Act of October 17, 1940 (money allowances for quarters for dependents), your decision is requested in the following case. Williard J. Koppen was enrolled in the Coast Guard Reserve as Chief Boatswain's Mate on May 15, 1941, called to active duty on May 15, 1941, and entered on such active duty on May 15, 1941. As Koppen has had no previous military service and is now serving in his first enlistment in the Coast Guard Reserve, does the restriction in section 12 (a) of the Selective Service Act which reads in part as follows: “except that the monthly base pay of enlisted men with less than four months' service during their first enlistment and of enlisted men of the seventh grade whose inefficiency or other unfitness has been determined * * * shall be $21.00" apply to Koppen with respect to his pay during the first four months served?

As Koppen is a chief petty officer and holds a rating which is included in the first three pay grades, is he, if your answer to the previous question is in the affirmative, entitled to the benefits of the Act of October 17, 1940, with respect to money allowance for quarters for dependents, subject to the conditions provided in Executive Order No. 8688, dated February 19, 1941?

An early reply will be greatly appreciated as a number of original enlistments in the higher pay grades in the Coast Guard Reserve are now being undertaken, and your decision on the two questions is necessary in determining the proper rates of pay and allowances in the cited case and others similar to it.

The applicability of the $21 limitation in section 12 (a) of the act of September 16, 1940, 54 Stat. 895, to the pay of enlisted men of the regular Coast Guard during the first 4 months of their initial enlistment period has been recognized by Amendment No. 28 to the

Pay and Supply Instructions, United States Coast Guard, dated January 22, 1941. In this connection, see decision to you dated November 19, 1940, B-13249, in which it was stated:

Where legislation has not specifically provided pay or allowances for members of the Coast Guard (as is done in the Joint Service Pay Act of June 10, 1922, 42 Stat. 625) the members of the Coast Guard are entitled to the benefits, and subject to the restrictions, imposed by section 8 of the act of May 18, 1920, quoted in your letter, and, therefore, the last sentence of Section 12 (a) of the act of September 16, 1940, is applicable to enlisted men of the Coast Guard to the same extent that it is applicable to enlisted men of the Navy.

It has been held that members of the National Guard holding grades above the seventh when inducted into the active service of the United States are not subject to the limitation of $21 per month during the first four months of their active service, regardless of the periods of their membership in the National Guard prior to induction. 20 Comp. Gen. 251, id. 490.

In decision of June 25, 1941, B-15190, to the Secretary of the Navy, it was held as follows:

When a member of the Naval Reserve in the seventh grade reports for active duty he is entitled to the same pay as is received by an enlisted man of the Regular Navy of the same grade and length of service. Since enlisted men of the Regular Navy are entitled to $21 per month during the first four months of their initial enlistment in the Regular Navy irrespective of the grade to which they may be promoted during that period of four months, a member of the Naval Reserve in the seventh grade when reporting for active duty is entitled to no greater pay. Thus, an enlisted man in the seventh grade in the Naval Reserve who reports for active duty during his first four months of service in his initial enlistment is entitled to only $21 per month until he has completed four months' service, including inactive Naval Reserve service, even though he may be promoted to a grade above the seventh after entering on active duty and during that period. On the other hand, an enlisted man in the Naval Reserve who has not completed his first four months of service in his initial enlistment and who is promoted to a grade above the seventh prior to reporting for active duty, is entitled to the same base pay as is received by an enlisted man in the Regular Navy with the same grade. Thus, if an enlisted man in the Naval Reserve reports for active duty during his first fourth months of service in his initial enlistment in the Naval Reserve after he has been promoted to a grade above the seventh, his base pay is not limited to $21 per month even though his first four months' service has not been completed.

In decision to the Secretary of the Navy, dated October 3, 1940, B-12506, the following was said:

The Naval Reserve law permits, and the regulations provide, that men may be enlisted in the Naval Reserve or Marine Corps Reserve in grades above the lowest; and where that is done the man will be entitled to the pay fixed for enlisted men of the Regular Navy or Regular Marine Corps of the same grade or rating and length of service irrespective of the time he has served in the Naval Reserve or in the Marine Corps Reserve when ordered to active duty. There is no specific provision in the Coast Guard Auxiliary and Reserve Act of 1941 with respect to grades or ratings in which men may be initially enlisted in the Coast Guard Reserve, but your authority to provide for enlisting men in the Reserve in grades above the seventh is not questioned.

In the light of the foregoing, a member of the Coast Guard Reserve holding a grade above the seventh when ordered to active duty is entitled to the pay of his grade without regard to the limitation of $21 per month in section 12 (a), supra, even though four months have not elapsed since he became a member of the Reserve and he has had no other military service. This rule is not rendered inapplicable in the case you present by reason of the fact that the enlisted man was enrolled in the Coast Guard Reserve and entered on active duty on the same day, and, accordingly, your first question is answered in the negative.

Being a chief boatswain's mate and entitled to the pay of that grade he is also entitled to the allowances to which an enlisted man of that grade is entitled when properly payable.

(B-18855)

LEASES-REPAIRS AND IMPROVEMENTS-LESSOR'S LIABILITY FOR PLASTERING AND PAINTING

Plaster repairing and painting work are obligations of the lessor under a lease which requires the lessor, with certain enumerated exceptions, not including plastering and painting, to repair and to maintain the leased premises in good repair and tenantable condition during the continuance of the lease.

Comptroller General Warren to the Federal Works Administrator, July 31, 1941:

I have your letter of July 14, 1941, as follows:

On July 1, 1939, the Public Buildings Administration of this Agency entered into a lease with Justus S. Wardell, receiver for the District National Bank of Washington, for the occupancy of the building known as the Premier Apartments, located at 718 18th Street NW.

This lease has been renewed from time to time, and at present the Government occupies the premises under a tenancy which expires on June 30, 1942. In accordance with the provisions of an Order of the District Court of the United States for the District of Columbia the property in question was sold and transferred to Charles H. Tompkins and his wife, Lida R. Tompkins by a deed dated December 31, 1940.

The Premier Apartment Building has been rented by the Government since December 21, 1935, at the maximum rental permitted under the provisions of the Economy Act, and with the exception of the present owners, the lessor has always assumed the responsibility for the painting of the rooms and corridors when called upon to do so by the Government. However, in response to a recent request of the Public Buildings Administration upon the present owners to do certain plaster repairing and painting work in the building in question, Mr. Tompkins declined to perform such work, stating that in his interpretation of the lease the responsibility for such painting and plastering rested with the Government, as the lessee. With reference to the responsibility of the lessors for making alterations and repairs to the Premier Apartments, sections 6 and 9 of the lease provide as follows:

"6. The lessor shall furnish to the Government, during the occupancy of said premises, under the terms of this lease, as part of the rental consideration, the following:

"The lessor agrees that he will comply with all the municipal ordinances, regulations, and statutes relating to buildings and their equipment in the District of Columbia, and that he will discharge at his expense all taxes, duties or charges

levied or to be levied on said premises during said term, except water rents, gas, and electric current charges.

"The lessor will provide venetian blinds or awnings on all windows on the south side of the building and will make all repairs to said building during the term of this lease or extension thereof due to faulty construction or ordinary wear and tear, and will maintain in efficient working condition all elevators, plumbing, lighting, and heating apparatus, insofar as the same may become defective through ordinary wear and tear or without fault or negligence on the part of the Government or of its agents or employees, excepting minor repairs to window and door glass, electric lighting, heating, and plumbing equipment, which shall, as a part of the consideration of rental, be made by the Goverment at its expense.

"It is also agreed that the Government shall notify the lessor of any repairs which should be made at the expense of the lessor and, if such repairs are not made within a period of time which the Government considers to be reasonable, the latter will be authorized to make such repairs and charge same to the lessor, and if such charge is not promptly paid, the Government shall be authorized to deduct the amount of such charges from the amounts due the lessor as rental under the terms of this lease.

9. The lessor shall, unless herein specified to the contrary, maintain the said premises in good repair and tenantable condition during the continuance of this lease, except in case of damage arising from the act or the negligence of the Government's agents or employees. For the purpose of so maintaining the premises, the lessor reserves the right at reasonable times to enter and inspect the premises and to make any necessary repairs thereto."

It is understood that generally the landlord is under no obligation whatever to keep the premises in repair in the absence of an express stipulation binding him to do so. However, it is believed that the wording of Sections 6 and 9 is specific and definite enough to require the lessor in this case to perform the painting and plastering work requested.

In view of the position taken by the present lessors, your opinion is respectfully requested as to whether this agency is justified in requesting Mr. Tompkins and his wife to perform the plastering and painting work under the terms of this lease, and in the event of his refusal would this agency be permitted to perform this work and deduct the cost thereof from the rental as provided in section 6 of the lease in question?

A copy of the letter from our office, under date of June 20, requesting the work to be performed by the lessors, together with a copy of Mr. Tompkins' reply is enclosed for your information.

The copy of your letter of June 20 to the lessor, referred to in your submission, was not received in this office.

It has been held that the term "repair" includes anything that is reasonably necessary to keep up the premises. 54 C. J. 396, and footnotes thereunder. Also, it has been held that painting of premises, interior or exterior, is ordinarily classed as a repair to be made by the lessor. 6 Comp. Gen. 215.

Under the familiar maxim of construction "expressio unius est exclusio alterius" the exception from the lessor's liability in paragraph 6 of the lease quoted in your letter of certain repairs enumerated after the word "excepting" and the specific provision that the repairs so excepted shall be made by the Government at its expense implies that all other items of repair not specifically enumerated among such exceptions will remain the responsibility of the lessor Manners v. Morosco, 258 Fed. 557, 560. Moreover, paragraph 9 of the lease specifically provides that the lessor shall, unless therein specified to the contrary, "maintain the said premises in good repair and tenantable condition during the continuance of this lease, except in case of damage

arising from the act or the negligence of the Government's agents or employees."

To "maintain" means to preserve or keep in an existing state or condition, and embraces acts of repair and other acts to prevent a decline. lapse, or cessation from that state or condition, and has been taken tc be synonymous with repair. 36 Words and Phrases, Permanent Edition, 953.

Even if there were any doubt otherwise that plastering and painting, necessary by reason of fair wear and tear, to keep the premises in a tenantable condition are obligations of the lessor, the practical construction put upon the provisions of paragraphs 6 and 9 of the lease by the original parties thereto should be given due weight in construing said lease. Interurban Land Co. v. Crawford, 183 Fed. 630, 635. Under such practical construction such maintenance and repair items as painting and plastering are clearly obligations of the lessor.

Accordingly, on the basis of the facts as reported in your letter you are advised that as the covenants by the original lessor to repair and to maintain the premises in good repair and tenantable condition during the continuance of the lease, with certain exceptions, run with the land and bind the grantee of the reversion, it would appear that the Federal Works Agency is legally justified in requesting the present lessors to perform the plastering and painting work and in the event of their refusal the work may be performed and the lessors charged as proposed in your letter. 15 Comp. Gen. 1064.

(B-19052)

CONTRACTS-COST-PLUS-TELEGRAPHIC EXPENSES-PAYMENT

PROCEDURE

Where the War Department has exercised its reserved right to pay directly to telegraph companies telegraphic charges incurred by its cost-plus-a-fixed-fee contractors in connection with contract work, direct payment of invoices rendered to such a contractor may be made, at Government rates, even though the telegraph companies furnish only certified copies, rather than originals, of transmitted messages and invoices not certified by them in the manner customarily required for such service, provided the invoices are certified and verified both by the contractor and the proper Government agent, and the necessary administrative measures are taken to prevent duplicate payments.

Comptroller General Warren to the Secretary of War, July 31, 1941:

I have your letter of July 22, 1941, as follows:

Controversy has arisen between the War Department and the telegraph companies as to whether telegrams sent by War Department contractors on a costplus-a-fixed-fee basis in connection with the contract are, or are not, entitled to the Government rate (which is 60% of the commercial rate). The Treasury Department has held that such telegrams are exempt from Federal taxes, and