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Since the date on which your decision was rendered, changed world conditions have accentuated the shortage of shipping facilities. The diversion of a large amount of tonnage for other purposes has made the situation acute. Since the Acting Governor's letter was prepared, a large number of vessels has been requisitioned by the United States Maritime Commission, some of which served Canal Zone ports. Included among these was the S. S. Panama, one of the three vessels of the Panama Railroad Steamship Line, which was being used almost exclusively for the transportation of cargo and passengers for the Panama Canal and the Army and Navy garrisons on the Isthmus.
Important work will be further delayed if contractors delay the shipment of cargo in order to ship via the Panama Line.
Under the circumstances, the modification of Panama Canal contracts to provide for freight adjustments whether shipment is by the Panama Line or by any other ocean carrier would appear to constitute a new and valuable consideration to the United States, in view of the urgent necessity for prompt shipment of materials and supplies to the Canal Zone.
Accordingly, this office will not object to payments under Panama Canal contracts as modified by the inclusion of the paragraph proposed in the Acting Governor's above-quoted letter. It will be understood, of course, that such paragraph will not apply to shipments made prior to the date of the modification of any particular contract, and the modification agreements should so provide.
Where the appointment and promotion of a retired Army warrant officer to a civilian position in contravention of the dual compensation act of July 31, 1894, as amended, was never consummated by the payment of salary at the rate for the new position, but rather, the employee was continued at the rate for his old position, the promotion may be cancelled and he may then be paid his retired pay for the period he held the new position, in addition to the civilian compensation already received.
Comptroller General Warren to the Secretary of War, July 16, 1941:
I have your letter of June 20, 1941, as follows:
On October 25, 1940, James E. Young, senior clerk (CAF-5) at $2,000 per annum in the Quartermaster Corps of the Army, Fort Shafter, T. H., was promoted to junior administrative assistant (CAF-7) at $2,600 per annum.
Mr. Young is a retired warrant officer who was retired on his own application for thirty years of service; his retired pay amounts to $1,665 per annum. It appears, therefore, that he holds an office within the meaning of the act of July 31, 1894 (28 Stat. 205) and is prohibited from holding a civilian position under the Government where the salary amounts to $2,500 or more.
Because of the administrative error made in recommending the reclassification from senior clerk (CAF-5) at $2,000 per annum to junior administrative assistant (CAF-7) at $2,600 per annum, his retired pay was suspended. The Department has been advised per radio attached of September 5, 1940, that Mr. Young was never paid at the rate of $2,600 per annum from October 25, 1940, to April 10, 1941, the date on which he was called to active duty as a captain in the Reserve Corps. The quartermaster general has recommended that the promotion be canceled and that his designation for the period from October 25, 1940, to April 10, 1941, remain senior clerk (CAF-5) at $2,000 per annum. This will permit Mr. Young to receive his retired pay for the period, and he will therefore suffer no loss of pay.
Decision is requested as to whether or not the promotion from senior clerk (CAF-5) at $2,000 per annum to junior administrative assistant (CAF-7) at $2,600 per annum may be canceled in order that Mr. Young may receive his salary of $2,000 per annum as a civilian employee and the amount of $1,665 per annum for his retired pay as a warrant officer.
There is attached for your information copy of the radiogram advising the Department that Mr. Young has not been paid at the rate of $2,600, and a copy of the payroll indicating that he has been paid at the rate of $2,000 per annum for the period involved.
Section 2 of the act of July 31, 1894, as amended, 5 U. S. C. 62, provides as follows:
62 Holding other lucrative office.-No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; but this shall not apply to retired officers of the Army, Navy, Marine Corps, or Coast Guard whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement. (July 31, 1894, ch. 174, sec. 2, 28 Stat. 205; May 31, 1924, ch. 214, 43 Stat. 245; July 30, 1937, ch. 545, sec. 6, 50 Stat. 549, and June 25, 1938, ch. 694, sec. 1, 52 Stat. 1194.)
As James E. Young was retired as a warrant officer of the Army on account of age, his appointment and promotion to a civilian position with salary of $2,600 per annum effective October 25, 1940, would have been, as you state, in contravention of the dual compensation act of July 31, 1894, as amended, supra-there being for noting that the exception therein specified applies to officers only when retired for disability.
The dual payment at the rate of $2,000 per annum in his civilian position and at the rate of $1,665 per annum retired pay was not in contravention of section 6 of the act of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat. 582; nor was it in contravention of section 212 of the Economy Act approved June 30, 1932, 47 Stat. 406, if, as appears, he was not retired on account of commissioned service. See 16 Comp. Gen. 232.
If, as reported, the appointment and promotion to $2,600 per annum was never consummated by the payment of salary at that rate, but father, the employee was continued at the rate of $2,000 per annum in his civilian position, there would be no legal objection to a correction of the record to show cancellation of the promotion to $2,600 per annum; in which event the payment of his retired pay for the period here in question would be authorized, provided, of course, that his retired pay is not computed upon any period of commissioned service.
TRANSPORTATION-HOUSEHOLD GOODS, ETC.-SCOPE OF TERM “PERSONAL EFFECTS" AS USED IN ACT, OCTOBER 10, 1940
The term "personal effects" as used in the act of October 10, 1940, with respect to the transportation of household goods, etc., of civilian cfficers and employees upon change of official station, is synonymous with "personal property" generally. The term "personal effects," as used in the act of October 10, 1940, fixing a uniform maximum weight of household goods and personal effects of civilian personnel which may be transported at Government expense from one official station to another, is inclusive of "personal property used in official work." as used in the act of March 4, 1911, with respect to the transportation of property of Agriculture Department personnel, and, therefore, such personal property (horses, etc.) of said personnel may not be transported at Government expense as an addition to the maximum weight allowance of the 1940 act and the uniform regulations prescribed pursuant thereto.
Comptroller General Warren to the Secretary of Agriculture, July 17, 1941: I have your letter of June 17, 1941, as follows:
Reference is made to act approved October 10, 1940 (Public, No. 839), limiting the quantity of household goods and personal effects that may be transferred from one official station to another and the President's Regulations pursuant to the act (Executive Order 8588, dated November 7, 1940).
The act fixes a limit of 5,000 pounds on “household goods and personal effects." Section 9 of the President's Regulations, enumerating items the transfer of which is not allowable, by implication would permit, subject to the regulations, the transfer of animals necessary in the performance of official duty, which presumably would require that such animals come within the 5,000 pound authorization (2,500 pounds where employee has no dependents) as defined in the regulations.
The law authorizing transfer of station expenses in the Department of Agriculture (36 Stat. 1265; 5 U. S. C. 539) includes "charges for the transfer of their effects and personal property used in official work." While the use of horses and horse equipment is not common because of the increased use of motor equipment, it is still necessary to require some officers of the Forest Service to provide at least one horse for the performance of official work. The term "personal effects," contained in Public, No. 839, ordinarily is thought of as covering items intimately related to the person of the individual, such as clothes, household goods, etc., and not as including animals or vehicles. Since the act relating to this Department specifically authorizes, in addition to "effects," the transfer of personal property used in official work and the act of October 10, 1940, relates only to household goods and personal effects, it seems logical that in addition to shipment of household goods and personal effects within the 5,000 pound limitation, employees of this Department may transport animals and animal equipment required to be furnished by them for performance of official work. In the case of the Forest Service it is realized that the Government could provide horses and equipment as needed, but it has been the practice from the outset to require the employee to own saddle and pack animals and horse equipment needed for his official work although the Government bears the cost of feed and stabling for the animals. However, it is not fair treatment that the employee, although required to own the animals and equipment, be required to transport them at personal expense from one station to another or that the transportation of one or two horses should reduce the quantity of household goods and personal effects that he may transfer.
Your decision is desired whether, in addition to transportation of personal effects and household goods, within the limitations of the act of October 10, 1940, and the regulations thereunder, an employee of this Department may transfer at Government expense personal property other than household goods and personal effects when such property is required by regulation to be furnished by the employee for the performance of his official work, having in mind especially such items as horses, saddles, harness, and other horse equipment, including horse-drawn vehicles when necessary for official work, or other equipment (except motor vehicles) required to be furnished by the employee for the performance of his official duties.
The act of March 4, 1911, 36 Stat. 1265 (5 U. S. C. 539), provides as follows:
Officers and employees of the Department of Agriculture transferred from one official station to another for permanent duty, when authorized by the Secretary of Agriculture, may be allowed actual traveling expenses, including charges for the transfer of their effects and personal property used in official work, under such rules and regulations as may be prescribed by the Secretary of Agriculture." [Italics supplied.]
The act of October 10, 1940, 54 Stat. 1105, provides as follows:
That expenses which now or hereafter may be authorized by law to be paid from Government funds for the packing, crating, drayage, and transportation of household goods and personal effects of civilian officers and employees of any of the executive departments or establishments of the United States when transferred from one official station to another for permanent duty shall hereafter be allowed and paid, when specifically authorized or approved by the head of the department or establishment concerned, under such rules and regulations as may be prescribed by the President, which regulations shall prescribe, among other matters, the maximum weight of the property, not to exceed five thousand pounds gross or the equipment thereof when transportation charges are based on cubic measurement, which may be packed, crated, hauled, transported, and unpacked at Government expense: Provided, That no part of such expenses shall be paid from Government funds where the transfer is made at the request and primarily for the convenience or benefit of the officer or employee: Provided further, That nothing herein shall affect the allowance and payment of expenses for, or incident to, the transportation of effects of officers and employees of the Foreign Service, Department of State, except where the transfer is made at the request and primarily for the convenience or benefit of the officer or employee. [Italics supplied.]
In decision of February 25, 1941, 20 Comp. Gen. 479, 482, after quoting the acts of March 4, 1911, and October 10, 1940, supra, it was stated:
The latter statute does not authorize the transportation of household goods and personal effects of civilian officers and employees of any executive department or establishment of the United States, including the Department of Agriculture, but authorizes the President to promulgate uniform regulations controlling expenditures for such purposes "which now or hereafter may be authorized by law." See B-14579, dated January 30, 1941, 20 Comp. Gen. 421. The act of 1911, supra, remains the basic authority of law for such expenditures so far as the employees of the Department of Agriculture are concerned, subject to the terms and conditions of the act of October 10, 1940, and the President's regulations issued pursuant thereto. The act of October 10, 1940, specifically provides that such expenditures "shall hereafter be allowed and paid, when specifically authorized or approved by the head of the department or establishment concerned, under such rules and regulations as may be prescribed by the President." [Italics supplied.] The statute is not self-executing. It does not ex proprio vigore grant any benefits nor deny benefits then existing, but vests in the President the authority to regulate such expenditures authorized by law on a uniform basis throughout the Federal service with certain exceptions, and limits his authority so far as the maximum weight of property to be transported is concerned.
Since the act of March 4, 1911, remains the basic authority for transportation at Government expense of property of civilian officers and employees of the Department of Agriculture, when transferred from one official station to another for permanent duty, the question you have presented appears to have arisen by reason of the doubt as to whether the words "effects and personal property," as used in the 1911 statute may not be more comprehensive than the words
"household goods and personal effects," as used in the 1940 statute, so as to authorize Government payment of transportation expenses of certain personal property of employees of the Department of Agriculture in excess of the maximum weight specified in the 1940 statute and the President's regulations thereunder. The answer to the question is dependent upon whether the term "personal property" as used in the 1911 statute is broader than the term "personal effects," as used in the 1940 statute, or whether, as used, the two terms are synonymous.
The term "personal effects," when used without qualifying words, generally has been construed as including only such tangible property as is worn or carried about the person-property intimately associated with or pertaining to one's person-but the term is an expansive one, not restricted to such meaning, and has been construed, in relation to the way in which it has been used, to include all forms of personal property. See 48 Corpus Juris 1046; volume 32, Words and Phrases, Permanent Edition, page 278, and Webster's New International Dictionary. When unqualifiedly used in wills the term has been construed to include all personal property. See volume 14, Words and Phrases, Permanent Edition, page 112, wherein it is stated that—
As used in a will bequeathing all household furniture and personal effects, the word "effects" is broad enough to cover all the personal property Linn v. Davis, 223 Ill. App. 503, 508. [Italics supplied.]
It should be noted that the words italicized above are substantially identical to those used in the 1940 statute, supra. Their meaning, as construed by the court, lends weight to the view that the words "personal effects," as used in the 1940 statute, should not be restricted in meaning to tangible property worn or carried about the person, or intimately associated with the person, but that they should be construed as synonymous with "personal property."
The purpose of the 1940 statute was to provide uniformity in the weight allowances and rules and regulations with respect to shipment of property of civilian officers and employees at Government expense. In the reports on the bill by the Congressional Committees there was specifically cited, as emphasizing the need for uniformity as to weight allowances, etc., the act of March 4, 1911, here under consideration, although said act relates to "effects and personal property." It is evident from such reports that the term "personal effects" was intended to be synonymous with "personal property," and it is obvious that any other construction of the term would, in a large measure, defeat the primary object sought to be accomplished by the statute-the establishment of uniform weight allowances and rules and regulations with respect to shipments of employees' effects. Whatever doubt there may have been with respect to whether the term "personal effects" as used in the 1940 statute is synonymous with