According to the decision of your Office, all positions now in C. A. F. 11 and P. 4 will, on July 1, next, advance to new grades C. A. F. 12 and P. 5, leaving the new grades C. A. F. 11 and P. 4 vacant. Further, the descriptions of grades C. A. F. 10 and P. 3 have not been changed and consequently, according to your ruling, positions now properly allocated to these grades would remain there. Any new positions created after July 1 must be allocated in accordance with the amended schedules. Some of these, say positions X and Y, will be more important and difficult than those in grades C. A. F. 10 and P. 3, but less important and difficult than those in grades C. A. F. 12 and P. 5. Certainly in making allocations of X and Y the board must give effect to the grade descriptions in the intermediate grade C. A. F. 11 and 12 and P. 4 and 5, make distinctions between them, and allocate X and Y to either C. A. F. 11 or P. 4. But heretofore positions falling within the same range of difficulty and importance, that is, between C. A. F. 10 and P. 3 on the one hand and C. A. F. 12 and P. 5 on the other, were allocated to C. A. F. 11 and P. 4, and, by virture of your decision, they will have moved up into C. A. F. 12 and P. 5 on July 1 next. The board will thereafter be under the necessity of either allocating X and Y to C. A. F. 11 or P. 4 in the face of the fact that similar positions are found in the higher grades C. A. F. 12 or P. 5, thus violating a cardinal principle of the classification act that there should be equal pay for equal work," or of allocating X and Y to C. A. F. 12 and P. 5, thus leaving C. A. F. 11 and P. 4 permanently vacant, and giving no effect to the statutory creation or description of those grades.

7. The determination of the proper allocation of a position is a discretionary function of the board. The power of the board to review its decision in any case. and if it found as a result of such review that it had erred in judgment or that it had acted without all the facts, to change the allocation either upward or downward, has not been questioned. If department heads are to have discretion to determine the grade for the higher positions, may the board thereafter review the department's decision in the same manner as it now reviews its own decisions and change the allocations either upward or downward? If not, may the department th eafter change the grade of any such positions at will? May the incumbents of the positions appeal to the board and secure a modification of the department's decision?

What is the duty of the department after July 1 with respect to reporting the facts as to duties and grade changes to the board?

There are other questions but these are sufficient to show their character and importance. We regard it as inconceivable that Congress intended to take an action that would cause such questions to arise, that it foresaw them, and failed to provide for their solution.

In conclusion, we are strongly of the opinion:

(1) That the act of May 28, 1928, did not change in any respect the administrative provisions of the classification act of 1923, nor modify or curtail the duties and powers of this board.

(2) That the amended compensation schedule and the administrative provisions contained in that amendment, when considered in connection with the original act and with the circumstances surrounding the origin of the bill as passed, must be construed as a new compensation schedule substituted for the original schedule and that the grade descriptions must be interpreted in their relation to each other and not merely in their relation to grade descriptions in the original schedule.

(3) That the provision regarding advancement in grade when basic qualifications were advanced is explanatory and directory but not self-executing. It simply controls the departments and the board in the performance of their respective functions in the allocation of positions under the amended schedules according to the procedure laid down in the original act.

(4) That consequently it is within the jurisdiction of the board to determine in what cases the basis qualifications of a former grade have been advanced to a higher grade and prescribe the procedure to govern the allocation of positions by departments as provided in section 4 of the original act. (5) That a reasonable construction of the grade definitions and the several administrative provisions of the act of May 28, 1928, when considered in connection with all the circumstances attending the legislation, leads inevitably to the conclusion that grades C. A. F. 11 and P. 4 of the original schedules are, by the terms of the new act, subdivided into two grades numbered C. A. F. 11 and 12 and P. 4 and 5 respectively.

(6) That any other construction results in unfair benefits for certain employees, inconsistencies in the application of the new schedules, and confusion in present and future administration of the classification act.

(7) That if Congress had intended so radical a change of policy as would flow from your interpretation, involving a material curtailment of the functions and powers of the board, the abolition of a central control over the allocations of a large group of positions and consequent abandonment of the purpose for which such control was originally established it would have so stated in specific terms, and the proposal would have been somewhere discussed, rather than left to be drawn by inference from some supplementary or explanatory sentence modifying the compensation schedules. That the Congress was disposed to do quite the opposite is shown by the fact that in the same act it placed added duties on the board and provided that the board should make a survey of field services with a view to extending the classification system.

It is requested, therefore, that your ruling of June 2, 1928, be reconsidered in the light of this memorandum.

The board will be glad to discuss this entire matter with you at your convenience if this memorandum does not sufficiently establish the correctness of its views.

By direction of the board:
Very truly yours,

Gen. HERBERT M. LORD,

C. C. VAN LEER, Chairman.

COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, June 26, 1928.

Chairman of the Personnel Classification Board,

Washington, D. C.

MY DEAR GENERAL LORD: There has been received by your direction a request for reconsideration of my decision of June 2, 1928, setting forth certain rules relative to the effect and application of the provisions of the act of May 28, 1928, Public, No. 555, amending the classification act of 1923, affecting payments to be made to employees in the District of Columbia coming within the purview of said act.

The request for reconsideration is accompanied by a statement of the views of the Personnel Classification Board as to the intent of the administrative provisions of the amended statute.

I have given careful consideration to the views expressed, the criticisms made of the decision of this office, and of the conclusions of the board as to the intent of the administrative provisions in the amended statute. It is evident from the statement submitted and the questions raised therein that the scope of the decision of this office of June 2, 1928, has not been correctly understood by the board. The primary concern of the board seems to be as to the effect of the administrative provisions in the amended act, as construed by this office, on the jurisdiction and functions of the board under the original classification act of 1923.

There was no purpose or intent in the amended act, or in the construction thereof by this office, to attempt to interfere with, or curtail, the jurisdiction or duties vested in or imposed upon the Personnel Classification Board under the original classification act of 1923. Section 1 of the act of May 28, 1928, amended the original classification act by providing a new schedule of grades and salary rates and prescribed a distinct method or procedure for applying initially the said new schedule of grades and salary rates. The last two paragraphs of the said section 1, which have been termed the administrative provisions, and which prescribe the method of applying initially the new schedule, constitute absolutely new legislation, a parallel or analogy of which is not to be found in the original classification act of 1923 or in any other statute. Hence it became necessary for this office, charged as it is with the responsibility and duty of interpreting and construing all statutes affecting the expenditure of appropriated funds, to render a decision as to the effect and proper application of these administrative provisions in order that there might be no delay or cenfusion in the payment of salaries under the new schedule from July 1, 1928, the effective date of the amendatory act.

The second of these administrative paragraphs, which is the one brought into question by the board, provides as follows:

"Whenever in any case the basic qualifications of any already existing grade or subdivision of a service are by this act made the basic qualifications of a higher grade or subdivision, the positions of all employees in said existing grade or subdivision are by this act advanced to said higher grade or subdivision of a service."

This provision affects only existing grades 4 and above in the professional and scientific service and grades 11 and above in the clerical, administrative, and fiscal service. It is understood to be the contention of the board that this paragraph is nothing more than descriptive of the action to be taken by the administrative office in conjunction with the board in reallocating individual positions in said grades as of July 1, 1928, in accordance with the method prescribed in the original classification act. With this I can not agree. There is nothing expressed or implied in the language of the provision itself or otherwise appearing in the statute to indicate such an intent. The paragraph is obviously self-executing and for construction by this office in the same manner as any other new statute providing a change in salary rates or in the method of personnel payments. In view of the short time that was to elapse between the enactment and its effective date, July 1, 1928. and the large number of services and employees involved, it is but reasonable to assume that this paragraph and the preceding one, were inserted in the bill for the express purpose of avoiding the usual questions and delays incident to reallocation of positions by the method prescribed in the original classification act.

In this connection it is to be noted that all positions to which the new schedule of grades and salary rates is to apply, previously have been allocated under the procedure prescribed in the original classification act of 1923, and the changes required by the amendatory act as of July 1, 1928, will not be reallocations of positions in the sense that term is applied under the original statute, but may be referred to as placements or adjustments by the Congress itself of positions and employees necessary to put the new schedule into effect on July 1, 1928, in accordance with the distinctive method prescribed under the amended statute itself, without reference to the original statute. The Congress evidently recognized that the board would not be able to reallocate all individual positions under the new description of basic qualification in the higher grades as fixed in the bill as originally drafted and introduced and also perform the additional duties imposed upon it in connection with the requirement for a survey of the field service and report to the Congress at its next session. and, for that reason, sought. by inserting the two administrative paragraphs in question, to relieve the situation and insure prompt payment of the increases in compensaion authorized by the amended act effective July 1, 1928, without any curtailment of the powers or functions which the board might lawfully exercise after July 1, 1928, under the provisions of the original classification act of 1923. And in reviewing my decision of June 2, 1928. I find therein nothing from which it might be reasonably inferred that the decision attempted so to construe the statute as to interfere with, or curtail, the jurisdiction and duties of the Personnel Classification Board.

It will be observed that the clause providing for maintaining relative position in grades is specifically addressed to the heads of departments and independent establishments and specifically directs administrative action, and nothing appears to require such administrative action to be in conjunction with your board, nor is the tenor of the provisions such as to require that procedure, but the provisions are largely self-executing.

It is stated in substance in the submission that, if the views expressed by this office are to govern, many new questions will arise for which the new act provides no answer, and that it is regarded by the board as inconceivable that the Congress intended to create such a situation. The suggested apprehension can not control statutory interpretation, but even so, it may be stated that most new statutes involving activities of the Government and the expenditure of public funds creates new situations and problems for consideration and determination by the proper construing authority, which could not have been foreseen by the Congress at the time of the enactment. Particularly has this proven true with respect to new statutes providing for personnel payments both under the civil and military branches of the service. For instance, the enactment of the average provision appearing in the annual appropriation acts restricting personnel payments, under the classification act created many problems not possible to have been foreseen by the Congress, and some situations or conditions which were so unreasonable that further legislation was enacted to correct them.

There have been perhaps 50 or more decisions rendered by this office applying this troublesome statutory provision to as many different situations, but argument has never been advanced that the Congress did not intend to enact the average provision. Having in mind the innumerable statutory provisions affecting personnel payments this office has been called upon to construe, it is not believed that the act of May 28, 1928, will present any insurmountable difficulty.

The specific questions asked in the present submission are found in the following quoted paragraphs which for reference purposes are here designated by the numbers 1, 2, and 3:

"(1) According to the decision of your office, all positions now in C. A. F. 11 and P. 4 will, on July 1, next, advance to new grades C. A. F. 12 and P. 5, leaving the new grades C. A. F. 11 and P. 4 vacant. Further, the descriptions of grades C. A. F. 10 and P. 3 have not been changed and consequently, according to your ruling, positions now properly allocated to these grades would remain there. Any new positions created after July 1. must be allocated in accordance with the amended schedules. Some of these, say positions X and Y, will be more important and difficult than those in grades C. A. F. 10 and P. 3. but less important and difficult than those in grades C. A. F. 12 and P. 5. Certainly in making allocations of X and Y the board must give effect to the grade descriptions in the intermediate grades C. A. F. 11 and 12 and P. 4 and 5, make distinctions between them, and allocate X and Y to either C. A. F. 11

or P. 4. But heretofore positions falling within the same range of difficulty and importance, that is, between C. A. F. 10 and P. 3 on the one hand and C. A. F. 12 and P. 5 on the other, were allocated to C. A. F. 11 and P. 4, and, by virtue of your decision, they will have moved up into C A. F. 12 and P. 5 on July 1, next. The board will thereafter be under the necessity of either allocating X and Y to C. A. F. 11 or P. 4 in the face of the fact that similar positions are found in the higher grades C. A. F. 12 or P. 5, thus violating a cardinal principle of the classification act that there should be equal pay for equal work,' or of allocating X and Y to C. A. F. 12 and P. 5, thus leaving C. A. F. 11 and P. 4 permanently vacant, and giving no effect to the statutory creation or description of those grades.

"(2) The determination of the proper allocation of a position is a discretionary function of the board. The power of the board to review its decision in any case, and if it found as a result of such review that it has erred in judgment or that it had acted without all the facts, to change the allocation either upward or downward, has not been questioned. If department heads are to have discretion to determine the grade for the higher positions, may the board thereafter review the department's decision in the same manner as it now reviews its own decisions and change the allocations either upward or downward? If not, may the department thereafter change the grade of any such positions at will? May the incumbents of the positions appeal to the board and secure a modification of the department's decision?

"(3) What is the duty of the department after July 1 with respect to reporting the facts as to duties and grade changes to the board?"

The questions thus presented will be considered in the order stated and are answered as follows:

(1) The effect of the Welch Act is unquestionably to leave the new grades P. 4 and C. A. F. 11, created by the amended statute, vacant temporarily, as said grades have entirely new descriptions of basic qual fications not found under any existing grades under the original act. But this situation is limited to these two grades by force only of the statutory requirements for these grades, whereas it would appear your board contemplated in its recently issued circular that all grades above P. 3 and C. A. F. 10 should remain stationary-that is, as they were under the classification act of 1923—until your board could receive submissions and make allocations under the new act of May 28, 1928. An entirely contrary intent appears in the later low. These new grades P. 4 and C. A. F. 11 should not remain permanently vacant, as attempted to be shown in your presentation of the question, supra, but will be available for original allocation of new positions or reallocation from other grades above or below by the board upon recommendation by the administrative office or upon appeal by employees, as provided in the original classification If positions have been properly allocated in existing grades P. 4 and C. A. F. 11, prior to July 1, 1928, it would seem to be the duty of the Personnel Classification Board to allocate any new position with the same or similar

act.

duties to grades P. 5 and C. A. F. 12 in the amended statute and not to new grades P. 4 and C. A. F. 11, the basic qualifications of which are lower than those of the original grades P. 4 and C. A. F. 11, and there would then arise no questions of violating the cardinal principle of the classification act that there shall be "equal pay for equal work." In allocating new positions and reallocating existing positions, the board should not overlook the provision in the amended statute which makes the basis qualifications of existing grades P. 4 and C. A. F. 11, the basic qualifications of new grades P. 5 and C. A. F. 12. Manifestly, there are positions allocated under the original classification act to P. 3 and C. A. F. 10 which, though not entitled to be allocated to original grades P. 4 and C. A. F. 11, are entitled to be allocated to the new grades P. 4 and C. A. F. 11, and it is to be assumed that this will be done subsequent to July 1, 1928, in accordance with the procedure prescribed under the original classification act of 1923.

(2) It is not understood that the board has the power under the original classification act to review, on its own motion in the absence of a request or recommendation by an administrative office or an appeal by the employee, any existing allocation previously approved by it. The changes effective July 1, 1928, made under the Welch Act, and in accordance with my decision of June 2, 1928, on the basis of allocations theretofore made and approved under the original classification act, are final to the same extent that allocations approved by the board under the original classification act of 1923 are final, and accordingly may be reviewed by the board after July 1, 1928, only upon the request or recommendation of the administrative office or upon an appeal by an employee. After July 1, 1928, the administrative offices will have no power, without approval of the board, to change the grade of any position at will, the reallocation of positions upward or downward thereafter being a matter for consideration in accordance with the procedure prescribed in the original classification act of 1923, the same as before the act of May 28, 1928, was enacted. (3) It is the duty of the administrative offices, after July 1, 1928, to report the facts as to duties and grade changes to the Personnel Classification Board in the same manner as required by the original classification act prior to July 1, 1928.

Nothing has been presented which justifies or requires any modification or change in the decision of June 2, 1928, and, accordingly, said decision is affirmed. Respectfully,

J. R. MCCARL,

Comptroller General of the United States.

Mr. OLIVER. There are recommendations now submitted by some of the departments to increase the pay of some officials who formerly were receiving $8,000 to $12,000, and the justification is that under the Welch Act there are subordinates now drawing pay in excess of what they would be drawing.

Mr. MOFFETT. There is an illustration of that in the State Department, for example. Certain chiefs of geographical divisions in the State Department, positions which the board had allocated to old professional 6, and which according to the board's interpretation would have gone to the new range professional 7, at $6,500 to $7,500, were advanced by the State Department to professional 8, with a range of $8,000 to $9,000, and since certain of them were receiving the topmost rate, $7,500, they went to the topmost rate in the new grade of $9,000. Subsequently an Undersecretary was appointed. Mr. Clark, and under the provisions of the law it was necessary to appoint him at the minimum rate, which was $8.000; and since now, with the other positions subordinate to him at $9,000, the average of the grade is exceeded, it is not possible to advance his salary above the $8,000 unless some of these other positions are reduced.

Mr. SHREVE. We are endeavoring to cure that. It is now in the estimates that we are considering. The committee has not gotten around to marking up the bill to determine what should be done, but the matter is before us.