ment Division and Government Printing Office, respectively, is required by reason of the new law.

Furthermore, the placing of orders with the Procurement Division for the purchase of supplies, etc., involves transactions separate and apart from those contemplated under Public Law 94, supra. The Procurement Division in such instances acts as the procuring agency under the relationship of principal and agent and does not occupy a position similar to that of a contractor. Accordingly, the placing of such orders is merely a preliminary step to the actual incurring of an expense or the making of a contract for supplies, etc., and no obligation of funds is incurred at the time such initial action is taken. 17 Comp. Gen. 379; 22 id. 156. Nor, does the placing of an order for printing and binding with the Government Printing Office-the authority for which does not stem from section 7 (c) of the act of May 21, 1920, 41 Stat. 613, as amended-at all times and under all circumstances obligate a departmental appropriation. In this connection see 21 Comp. Gen. 1159. Hence, a reconsideration of the decisions to which you refer-but do not identify-will not be undertaken at this time.

(B-35913)

TRAVELING EXPENSES-CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS

The provision under the General Provisions of subsection (a) of the National War Agencies Appropriation Act, 1944, authorizing payment of travel expenses to and from their homes or regular places of business of persons employed intermittently away from their homes or regular places of business as consultants paid on the basis of "when actually employed," is specifically limited to consultants, and may not be extended so as to relieve other classes of personnel employed intermittently on a "when actually employed" basis from the general requirement of bearing the cost of reporting to their post of duty from their homes and places of employment.

Comptroller General Warren to the Chairman, War Production Board, August 11, 1943:

Reference is made to a letter dated July 21, 1943, from the Director of Personnel, War Production Board, as follows:

Subsection (a) of "General Provisions" of Public Law 139, Seventy-eighth Congress, provides, in part, as follows: "(a) The foregoing appropriations for the constituent agencies under the Office for Emergency Management shall be available, in addition to the objects specified under each head, and without regard to section 3709, Revised Statutes (except as otherwise specified herein), for personal services in the District of Columbia and elsewhere; and including (upon authorization or approval of the head of any of such agencies) travel expenses to and from their homes or regular places of business in accordance with the Standardized Government Travel Regulations, including travel in privately owned automobile (and including per diem in lieu of subsistence at place of employment), of persons employed intermittently away from their homes or regular places of business as consultants and receiving compensation on a per diem when actually employed basis."

Under the provisions of the general administrative instructions of the War Production Board, two types of appointments on a per diem, when actually employed, basis are possible, namely:

1. Those made solely for consultation purposes, and requiring the services of an employee to give professional, scientific or technical advice or opinion in the field of the employee's special knowledge or training. Such employees exercise no administrative or operating responsibilities, and are appointed under Schedule A, Subdivision I, paragraph 13 of the Civil Service Rules. Their services must be required part-time, intermittently, or for temporary periods of brief duration, and they may not be employed for more than 180 working days in a calendar year.

2. Those, other than as consultants, made to positions in a specialized field of activity where (a) the full-time services of a properly qualified person are not needed, or (b) the services of a properly qualified person on a fulltime basis cannot be secured. Such employees are not necessarily limited to consultation purposes, are appointed under the provisions of the War Service Regulations, and their appointments are limited to 90 calendar days and may be renewed for successive periods of 90 days, upon certification as to the necessity for continuing the appointment. The services of such employees must be required part-time, intermittently, or for temporary periods of brief duration and they may not be employed continuously for as long as one full payroll period at any one time.

In view of the use of the word "consultants" in the section above quoted from Public Law 139, we should like to be advised as to whether the provisions of that section apply only to per diem, when actually employed, appointments made under Schedule A, I, 13 of the Civil Service Rules, or whether such provisions are broad enough to apply to all appointments on a per diem, when actually employed, basis, including those made under the War Service Regulations of the Civil Service Commission.

In the "First Deficiency Appropriation Act, 1943” approved March 18, 1943, Public Law 11, there was included a provision, limited to June 30, 1943, similar in terms to the provision quoted in the first paragraph of the letter, supra, applicable during the fiscal year 1944. The legislative history of that provision shows that said provision was enacted because of the decision of this office of September 16, 1942, 22 Comp. Gen. 231, 234, as follows:

It must be held, generally, that a consultant who is employed and paid either full time or part time on the basis of "when actually employed" is in no different status from any other full-time or part-time officer or employee of the Government insofar as concerns his being required to bear the expense of reporting to his first duty station and of reporting for duty from his residence to a regularly established official station or designated post of duty. That is to say, there is no authority, simply by designating an officer or employee as a "consultant" and paying him only "when actually employed," to relieve him of the requirement to bear the cost of travel necessarily involved in reporting from his home to post of duty. 15 Comp. Gen. 342; 19 id. 836. Such action would be tantamount to increasing the salary of the employee beyond that fixed by law. 13 Comp. Gen. 390; cf. 19 id. 71. Compare decisions of this office involving officers and employees who serve the Government without compensation, 24 Comp. Dec. 617; 21 Comp. Gen. 377; id. 886; decision of August 8, 1942, B-27674, 22 Comp. Gen. 129; decision of September 4, 1942, B-28301.

That decision related exclusively to consultants who were employed and paid on a "when actually employed" basis. Undoubtedly, the appropriation provision quoted in the first paragraph of the letter, supra, applicable for the fiscal year 1944, was enacted to continue during the fiscal year 1944 the same exception to the general rule

with respect to personnel employed intermittently as consultants and paid on a per-diem-when-actually-employed basis, only. It is a wellsettled rule of statutory construction that exceptions are to be strictly construed. Therefore, since the appropriation provision for the fiscal year 1944 in specific terms is limited to consultants, there is no reasonable basis upon which the provision may be extended by construction to apply to other classes of personnel solely because they may be employed intermittently or for short periods on a per-diem-whenactually-employed basis. On the contrary, the general rule stated in the decision of September 16, 1942, supra, and the decisions therein cited, to the effect that Federal employees, either full time or part time, employed and paid on a regular salary basis, are required to bear the cost of reporting to their post of duty from their homes and places of employment, is for application to all part time or intermittent employees other than consultants.

Accordingly, if all of the consultants of the War Production Board are required to be employed in accordance with the Civil Service rule to which you refer, the principal question posed in the concluding paragraph of the above-quoted letter is answered in the affirmative. In any event, the alternative question must be and is answered in the negative.

(B-36228)

LEAVES OF ABSENCE-MILITARY-MEMBERS OF STATE DEFENSE

ORGANIZATIONS

Military leave of absence with pay, which is granted civilian employees of the United States under specific statutory authority for the purpose of training in the National Guard, etc., as prospective members of the armed forces of the United States for active duty, may not be granted members of a State defense organization created under authority of the act of August 18, 1941, which prohibits members of a State defense organization, created during the absence of the National Guard on active duty as a part of the armed forces of the United States, from being called into active military service as such members.

Comptroller General Warren to the Secretary of the Navy, August 11, 1943: I have your letter of August 9, 1943, ref. JAG JHJM:ac, as follows:

The Navy Department is in receipt of an inquiry from the Navy Yard, Philadelphia, Pennsylvania, as to whether employees of the Navy Yard will be entitled to military leave for the period they are ordered to engage in training or other authorized maneuvers as members of the Pennsylvania Reserve Defense Corps, as was the case with respect to employees who were formerly members of the Pennsylvania National Guard. The Act of the Pennsylvania Legislature under which the Pennsylvania Reserve Defense Corps was established is Act No. 2, approved March 19, 1941 (1941 P. L. 3).

It is requested that a decision be rendered in the premises. In view of the fact that employees have been ordered to such duty for one week commencing 14 August 1943, it will be appreciated if reply hereto may be expedited.

The act of August 18, 1941, 55 Stat. 628, provides as follows:

That section 61 of the National Defense Act of June 3, 1916, is amended to read as follows:

"SEC. 61. No State or Territory nor Puerto Rico or the Canal Zone shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this Act: Provided, That nothing contained in this Act shall be construed as limiting the rights of the States and Territories and Puerto Rico and the Canal Zone in the use of the National Guard within their respective borders in time of peace: Provided further, That nothing contained in this Act shall prevent the organization and maintenance of State or Territorial police or constabulary: Provided further, That under such regulations as the Secretary of War may prescribe for discipline in training, the organization by and maintenance within any State or Territory or Puerto Rico or the Canal Zone of such military forces other than National Guard as may be provided by the laws of such State or Territory is hereby authorized while any part of the National Guard of the State or Territory or Puerto Rico or the Canal Zone concerned is in active Federal Service: Provided further, That such forces shall not be called, ordered, or in any manner drafted, as such, into the military services of the United States; however, no person shall, by reason of his membership in any such unit, be exempted from military service under any Federal law: And provided further, That the Secretary of War in his discretion and under regulations determined by him, is authorized to issue, from time to time, for the use of such military units, to any State or Territory or Puerto Rico or the Canal Zone, upon requisition of the Governor thereof, such arms and equipment as may be in possession of and can be spared by the War Department."

Section 80 of the act of June 3, 1916, 39 Stat. 203, provides as follows:

LEAVES OF ABSENCE FOR CERTAIN GOVERNMENT EMPLOYEES.-All officers and employees of the United States and of the District of Columbia who shall be members of the National Guard shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during which they shall be engaged in field or coast-defense training ordered or authorized under the provisions of this Act.

See, also, the act of May 12, 1917, 40 Stat. 72, granting military leave of absence to "officers and employees of the United States or of the District of Columbia who shall be members of the Officers' Reserve Corps", and section 9 of the act of June 25, 1938, 52 Stat. 1175, 1177, granting military leave to "officers and employees of the United States or of the District of Columbia who are members of the Naval Reserve."

Military leave of absence with pay is granted for the purpose of training prospective members of the armed forces of the United States for active duty. The act of August 18, 1941, supra, prohibits members of a State defense organization, created in the absence of the National Guard, from being called into active service of the United States as such members. Hence, it may not be inferred from any of the provisions of the act of August 18, 1941, that the Congress intended to grant military leave of absence with pay to members of a State military organization other than the National Guard. None of the above-cited Federal statutes authorizing the granting of military leave of absence with pay from a civilian position under the Federal Government applies to officers or employees who are members

of a State organization created by State law for purposes of defense during the period of the present war emergency, while the National Guard is a part of the armed forces of the United States on active duty. Nor has any other provision of law or regulations having the force and effect of law been called to my attention which may be regarded as authorizing the granting of military leave of absence with pay under such circumstances.

Accordingly, the question presented is answered in the negative.

(B-35696)

SETTLEMENT OF ACCOUNTS OF UNITED STATES COMMISSIONERS ALSO SERVING AS CLERKS OF DISTRICT COURTS

Under the act of June 16, 1938, providing that clerks of United States district courts who also hold office as United States commissioners may receive compensation for both offices in an aggregate amount not exceeding the rate of $3,000 per annum, a United States Commissioner, upon settlement of his quarterly account, is entitled to be paid commissioner's fees for the quarter in an amount which together with his salary as clerk of court will bring the aggregate payments for the quarter to a sum not exceeding onefourth of the maximum per annum rate fixed by the said act.

In the settlement of accounts of United States commissioners who are also clerks of United States district courts, any fees earned during an accounting quarter in excess of one-fourth of the maximum rate of $3,000 per annum prescribed by the act of June 16, 1938, should be suspended and may be applied later to make up a deficiency in any subsequent quarter during the same accounting year, but no adjustment may be made of any excess fees earned in a subsequent quarter to cover a deficit in a preceding quarter of the same accounting year.

Under the act of May 29, 1928, requiring the submission of quarterly accounts by United States commissioners, the quarterly periods need not necessarily conform to the quarters of the calendar year or the Government fiscal year. Comptroller General Warren to Nathan A. Brown, United States Commissioner, August 12, 1943:

Reference is made to your letter, without date, received in this office May 21, 1943, concerning settlement No. 0710866 dated January 22, 1943, wherein deductions from the amount found due you for the quarter ended October 31, 1942, were made in the sums of $13.65, $71.80 and $21.50, representing excess fees allowed during the years ending July 31, 1940, 1941 and 1942, respectively. You contend in effect that the act of June 16, 1938, 52 Stat. 752, does not require the construction that the compensation of a person holding both of the positions of deputy clerk of a United States district court and United States commissioner is based on quarterly payments of $750, if earned, but that the act specifically limits the amount to $3,000 per annum; also, you urge that such compensation should be computed upon the basis of the Government fiscal year period rather than upon the three-month periods for which you are required to submit your

accounts.