The orders of June 2, 1921, read:

PAR. 39. By direction of the President, Captain Clarence E. Lauderdale, United States Army, retired, is detailed, under the provisions of section 40b of the national defense act, as amended, as professor of military science and tactics, St. Louis University Dental School, St. Louis, Missouri. He will proceed, without delay, to Carlisle Barracks, Pennsylvania, and report in person on or about June 6, 1921, to the commandant Medical Field Service School for temporary duty for the purpose of pursuing a course of instruction and upon completion of this duty will proceed to St. Louis, Missouri, for duty to which detailed by this order,

This order does not characterize as "active duty" the duty it requires of this retired dental surgeon of (1) pursuing instruction temporarily and (2) as a professor under detail. It does, on the other hand, state that the detail thereunder is as a professor of military science and tactics and that it is made under the authority of "section 40b of the national defense act, as amended," or, in other words, under section 33 of the act of June 4, 1920, 41 Stat., 777, which amends section 40b of the national defense act of 1916, by the insertion in lieu thereof of the following:

SEC. 40b. Personnel for Duty with Reserve Officers' Training Corps.-The President is hereby authorized to detail such numbers of officers, warrant officers, and enlisted men of the Regular Army, either active or retired, as may be necessary for duty as professors of military science and tactics, assistant professors of military science and tactics, and military intructors at educational institutions where one or more units of the Reserve Officers' Training Corps are maintained. In time of peace retired officers, retired warrant officers, or retired enlisted men shall not be detailed under the provisions of this section without their consent, and no officer on the active list shall be detailed for recruiting service or for duty at a school or college, not including schools of the service, where officers on the retired list can be secured who are competent for such duty. Hereafter retired officers below the grade of brigadier general and retired warrant officers and enlisted men shall, when on active duty, receive full pay and allowances. (See preceding acts of June 3, 1916, 39 Stat., 192, sec. 45, and April 17, 1918, 40 Stat., 531.)

A detail under this statute is a detail to a special form of duty, semimilitary in character, for which provision has been made for both detail and pay purposes separately and apart from "active duty" proper or military duty generally, which latter duty is the duty covered by section 51 of the same act of June 4, 1920, 41 Stat., 786. See preceding statute of June 3, 1916, sec. 24, 39 Stat., 183.

As a retired dental surgeon, with rank of captain, detailed as a professor of military science and tactics at a Reserve Officers' Training Corps School, under the provisions of section 40b of the national defense act as amended by section 22 of the act of June 4, 1920, Captain Lauderdale's right to pay is that conferred upon him by the terms of the statute under which detailed (sec. 40b, as amended) and is confined thereunder to the full pay and allowances of his retired grade-that of dental surgeon with rank of captain.

His detail under section 40b, as amended, being a detail to a special duty semimilitary only in character with pay separately provided therefor as distinguished from a detail to the "active duty" con

templated and separately provided for both for purposes of detail and pay in section 51 of the same act of June 4, 1920, he does not while so detailed come within the purview of said provision in section 51 and is not possessed thereunder of any right to promotion, pay, or otherwise. See 23 Comp. Dec., 605, 500; 24 id., 719; 26 id., 861, 864; 27 id., 203.

As to that portion of the service of Captain Lauderdale under the orders of June 2, 1921, which preceded the taking effect of the detail as professor to the St. Louis University Dental School, and which consisted of himself receiving instruction at the Medical Field Service School, at Carlisle, Pa., preliminary to the taking effect of his detail to professor duty, I find no showing in the submission as to the termination of this instruction service, or authority under which he as a retired officer was ordered thereto, or any reference thereto whatever other than that embodied in the orders.

It appears clear, however, that the service of this retired officer in pursuing instruction was equally not the service on active duty generally for pay purposes contemplated by the section 51 of the act of June 4, 1920, and he likewise does not by reason thereof possess any right thereunder. See in this connection sec. 51, act of June 4, 1920, 41 Stat., 786, par. 5, which contains no express provision for detail of retired officers for instruction; also sec. 56, act of June 3, 1916, 39 Stat., 197; act of April 17, 1918, sec. 4, 40 Stat., 532; 24 Comp. Dec., 719, 722; 23 id., 500.

COMPENSATION FOR NIGHT WORK-EMPLOYEES OF ORDNANCE DEPARTMENT, UNITED STATES ARMY.

The compensation of employees at ordnance establishments having been fixed by schedules of wages approved by the Secretary of War, they are not entitled to extra pay for night work, such additional payment being prohibited by section 1765, Revised Statutes, to employees whose compensation is fixed by law or regulations.

Decision by Comptroller General McCarl, August 11, 1922:

W. V. Randall, captain, Ordnance Department, United States Army, applied March 28, 1922, for review of settlement No. W-70379, dated February 23, 1922, disallowing $361.35 on voucher 178 of his March, 1921, accounts, covering payment of 10 per cent extra allowance for night work to monthly and per annum employees of Watervliet Arsenal, N. Y., for the period February 1 to 28, 1921, on the ground that such employees are not entitled to additional compensation.

The allowance was paid to superintendents, foremen, policemen, firemen, guards, fire fighters, and laborers. It is contended that the payments were correct on the theory that their compensation is fixed by administrative authority, the Secretary of War having granted the increase.

There is no question as to the right of the Secretary of War to increase the wages of employees whose compensation is not fixed by law, 21 Comp. Dec., 311, but express authority is necessary to allow compensation in addition to the established wage of an employee for service not incompatible with his employment.

The several acts of Congress relative to extra pay and double compensation for public service manifest a determination on the part of Congress to prevent the payment of extra compensation in any form or under any pretext whatsoever except where Congress has specifically provided therefor.

The Revised Statutes provide that

SEC. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.

This section is permanent law applying to all branches of the public service. 4 Op. Atty. Gen., 128. 4 Op. Atty. Gen., 128. It prohibits extra compensation for service incompatible with that for which the compensation is fixed. United States v. Evans, 4 Mackey (D. C.), 281. It applies to two classes of persons only, viz., officers of the public service and employees whose compensation is fixed by law or regulations. 4 Comp. Dec., 696.

Regulations for the administration of the civil service in the Ordnance Department, United States Army, at large, approved by the Secretary of War and the Civil Service Commission, were promulgated by the Chief of Ordnance December 7, 1917, providing as follows:

REGULATION II.-SCHEDULES.

1. Employees of the several ordnance establishments shall be arranged in schedules as follows:

Guard.

SCHEDULE G.-Assistants to mechanics, skilled laborers, etc.

SCHEDULE H.-Laborers, etc.

Laborer.

3. All positions and employees at any ordnance establishment shall be embraced under the above designations and no new designation shall be introduced except upon the approval of the Chief of Ordnance and the Civil Service Commission; but within each designation there may be such number of grades as the character or the fineness and rate of pay may warrant;

REGULATION III.-BOARDS.

1. There shall be a central civil-service board in the office of the Chief of Ordnance.

2. There shall be a local civil-service board at each ordnance establishment, These boards shall furnish the commission with information with reference to the needs of the service, receive applications for positions in the noneducational class (Schedules D to H, inclusive), rate the papers of such applicants, establish registers of eligibles therefrom, and perform such other duties as the commission may direct.

REGULATION XVI.-RATES OF PAY.

1. When it appears necessary the commanding officer of any ordnance establishment shall, by correspondence or otherwise, make diligent inquiry of the principal private manufacturing establishments, which in his opin

ion should best furnish the comparison desired as to the rates of wages paid to the workmen of different grades in each trade or occupation for work of a similar nature and grade to that done at his post, or resembling it as nearly as possible.

4. If the result

shows that changes are necessary to equalize the rates paid by him and those paid in the vicinity * * he will submit a new schedule of wages * *; and when said schedule is approved by the Chief of Ordnance it shall remain in force until further change is authorized, and shall be duly published for the information of applicants. Employees in Schedules C to H, inclusive, may be promoted or reduced by the commanding officer, provided a change of work is involved requiring a change of designation.

The compensation of all employees at ordnance establishments having been fixed by the schedules of wages prescribed above, pursuant to the broad authority vested in the heads of departments in such matters, it must be held that their compensation is fixed by regulations within the meaning of section 1765, Revised Statutes, prohibiting the payment of additional pay, extra allowance, or compensation, in any form whatever, unless explicity authorized by iaw. In the absence of a law excepting these employees from the regulations governing the terms of such employments or an appropriation authorizing such additional compensation, the payment of 10 per cent increase for night work was not in accordance with the requirements of law.

Upon review the settlement is sustained.

989449 0-52- -9

AUTOMATIC PROMOTION OF POSTAL INSPECTORS AND CLERKS. The act of June 5, 1920, 41 Stat., 1051, does not require that a postal inspector or clerk at division headquarters must serve two full years in one grade before promotion to the next higher grade when a part of this first year of service is not satisfactory or meritorious, but authorizes such promotion at the beginning of any quarter following a complete year's service of the required character, regardless of the length of service not of that character prior to the beginning of year of meritorious service. Comptroller General McCarl to the Postmaster General, August 14, 1922:

I have your letter of July 27, 1922, referring to the provisions in the act of June 5, 1920, 41 Stat., 1051 and 1052, relative to the promotion of post-office inspectors and clerks at division headquarters of post-office inspectors and requesting decision of questions presented, as follows:

Whether an inspector, who is denied promotion at the beginning of a quarter following a year's satisfactory service in any one of the first four grades on account of unsatisfactory and inefficient service, or at the beginning of the quarter following a year's service in grade 5 for the reason that his services during the year have not been meritorious, or at the beginning of the quarter following a year's service in grade 6, because his services during the year have not been specially meritorious, is eligible for promotion at the beginning of the quarter next following that at the beginning of which he is denied promotion, or must he complete another full year's service in the same grade before he again becomes eligible for promotion. For example: An inspector was promoted from Grade 2 ($2,500) to Grade 3 ($2,700) on July 1, 1921, following a year's satisfactory and efficient service in Grade 2 ($2,500), but on July 1, 1922, he is denied promotion to Grade 4 ($2,900) because his services during the year-July 1, 1921, to June 30, 1922-have not been satisfactory and efficient. Can he be promoted to Grade 4 ($2,900) on October 1, 1922, provided it is certified that his services from October 1, 1921, to September 30, 1922, have been satisfactory and efficient, or will he remain ineligible for promotion until July 1, 1923?

The same question arises regarding clerks at division headquarters of postoffice inspectors Will you please advise whether your decision with respect to promotion of inspectors will apply to clerks at division headquarters of post-office inspectors also?

The act referred to, page 1052, divides the post-office inspectors into seven grades and, with reference to promotion, provides—

Inspectors shall be promoted successively to grade five at the beginning of the quarter following a year's satisfactory and efficient service in the next lower grade, and to grade six at the beginning of the quarter following the expiration of one year's meritorious service in grade five, not to exceed 20 per centum of the force to grade seven for specially meritorious service after not less than one year's service in grade six.

Said act, page 1051, divides clerks at division headquarters of post office inspectors into six grades and provides—

That clerks at division headquarters shall be promoted successively to grade five at the beginning of the quarter following a year's satisfactory service in the next lower grade, and one clerk at each division headquarters may be promoted to grade six after one year's satisfactory service in grade five.

Under these provisions the entire year's service required before promotion to the next higher grade must be "satisfactory" or "satisfactory and efficient" or "meritorious" as the case may be except in the case of a promotion of an inspector from grade six to grade seven, in which the promotion can be made for specially meritorious