sions for the purpose of computing annuities under this Act. The compensation of the members of the Board of Actuaries, exclusive of the Government actuary, shall be fixed by the Commissioner of Pensions with the approval of the Secretary of the Interior. The required five-year valuation of the civil-service retirement and disability fund may be omitted or deferred in the discretion of the Civil Service Commission for the duration of the present war and for one year thereafter. Sec. 16, act of July 3, 1926 (44 Stat. 912); sec. 16, act of May 29, 1930 (46 Stat. 478); act of Dec. 23, 1944 (58 Stat. 926); 5 U. S. C. 731. This section has been amended as above. 695. Retirement Act; administration, recovery of annuity payments.-For the purpose of administration, except as otherwise provided herein, the Commissioner of Pensions, under the direction of the Secretary of the Interior, be, and is hereby, authorized and directed to perform, or cause to be performed, any and all Acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this Act into full force and effect. An appeal to the Secretary of the Interior shall lie from the final action or order of the Commissioner of Pensions affecting the rights or interests of any person or of the United States under this act, the procedure on appeal to be as prescribed by the Commissioner of Pensions, with the approval of the Secretary of the Interior. The Commissioner of Pensions shall make a detailed comparative report annually showing all receipts and disbursements on account of annuities, refunds, and allowances, together with the total number of persons, receiving annuities and the total amounts paid them, and he shall transmit to Congress, through the Secretary of the Interior, the reports and recommendations of the Board of Actuaries. The Secretary of the Interior shall submit annually to the Bureau of the Budget estimates of the appropriations necessary to finance the retirement and disability fund and to continue this Act in full force and effect. Notwithstanding any other provision of this Act, there shall be no recovery of annuity payments from any annuitant under this Act who, in the judgment of the Civil Service Commission, is without fault and when, in the judgment of the Civil Service Commission, such recovery would be contrary to equity and good conscience. Sec. 17, act of July 3, 1926 (44 Stat. 913); sec. 17, act of May 29, 1930 (46 Stat. 478); sec. 1, act of June 26, 1944 (58 Stat. 326); 5 U. S. C. 709, 728, 729a. This section has been amended as above. 696a. Military service counted under Railroad Retirement Act.-Any department or agency of the United States maintaining records of military service, at the request of the Board, shall certify to the Board, with respect to any individual, the number of months of military service which such department or agency finds the individual to have had during any period or periods with respect to which the Board's request is made, the date and manner of entry into such military service, and the conditions under which such service was continued. Any department or agency of the United States which is authorized to make awards of pensions, disability compensation, or any other gratuitous benefits or allowances payable, on a periodic basis or otherwise, under any other Act of Congress on the basis of military service, at the request of the Board, shall certify to the Board, with respect to any individual, the calendar months for all or part of which any such pension, compensation, benefit, or allowance is payable to, or with respect to, the individual, the amounts of any such pension, compensation, benefit, or allowance, and the military service on which such pension, compensation, benefit, or allowance is based. Any certification made pursuant to the provisions of this subsection shall be conclusive on the Board: Provided, That if evidence inconsistent with any such certification is submitted, and the claim is in the course of adjudication or is otherwise open for such evidence, the Board shall refer such evidence to the department or agency which made the original certification and such department or agency shall make such recertification as in its judgment the evidence warrants. Such recertification, and any subsequent recertification, shall be conclusive, made in the same manner, and subject to the same conditions as an original certification. Sec. 625(j), Tit. VI, act of Oct. 8, 1940 (54 Stat. 1015); 45 U. S. C. 228c-1. See also act of April 8, 1942 (56 Stat. 204.) 698. Training of employees.-Appropriations for the Military Establishment for the fiscal year 1944 shall be available for all necessary expenses in connection with the instruction and training, including tuition, not otherwise provided for, of civilian employees in and under the War Department and the Military Establishment. Sec. 8, Military Appropriation Act of July 1, 1943 (57 Stat. 368). This provision was repeated in section 8, Military Appropriation Act, 1945 (58 Stat. 594). 699. Voluntary service. The Second War Powers Act of March 27, 1942, post, 2270, authorizes the acceptance of voluntary services for particular war purposes. 700. Witnesses before committees of Congress. The act of January 13, 1940 (54 Stat. 13) provides a penalty for endeavoring to influence or intimidate witnesses in proceedings before departments or Congressional investigations. 701. Assignment and powers of attorney.-All transfers and assignments made of any claim upon the United States or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same. The provisions of the preceding paragraph shall not apply in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more, are assigned to a bank, trust company, or other financing institution, including any Federal lending agency: Provided, 1. That in the case of any contract entered into prior to the date of approval of the Assignment of Claims Act of 1940, no claim shall be assigned without the consent of the head of the department or agency concerned; 2. That in the case of any contract entered into after the date of approval of the Assignment of Claims Act of 1940, no claim shall be assigned if it arises under a contract which forbids such assignment; 3. That unless otherwise expressly permitted by such contract any such assignment shall cover all amounts payable under such contract and not already paid, shall not be made to more than one party, and shall not be subject to further assignment, except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing; 4. That in the event of any such assignment, the assignee thereof shall file written notice of the assignment together with a true copy of the instrument of assignment with (a) the General Accounting Office, (b) the contracting officer or the head of his department or agency, (c) the surety or sureties upon the bond or bonds, if any, in connection with such contract, and 9 (d) the disbursing officer, if any, designated in such contract to make payment. Notwithstanding any law to the contrary governing the validity of assignments, any assignment pursuant to the Assignment of Claims Act of 1940 shall constitute a valid assignment for all purposes. Any contract entered into by the War Department or the Navy Department may provide that payments to an assignee of any claim arising under such contract shall not be subject to reduction or set-off, and if it is so provided in such contract, such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract. R. S. 3477; act of Oct. 9, 1940 (54 Stat. 1029); 31 U. S. C. 203. The original text of this section was amended as indicated above by the "Assignment of Claims Act of 1940." Notes of Decisions In general.-An insurance company is a "financing institution" to which claims under public contracts may be assigned under the Assignment of Claims Act of 1940 (54 Stat. 1029). An insurance company is also a "financing institution" within the contemplation of Executive Order No. 9112, authorizing the Navy Department to guarantee against loss any financing institution, etc., which has made a loan or commitment for financing any contractor engaged in any business or operation deemed by the Navy Department to be necessary, appropriate, or convenient for the prosecution of the war. (May 19, 1943), 40 Op. Atty. Gen. No. 67. the Action by trustee in bankruptcy to recover alleged preference. In September 1940 a corporation entered into a contract with United States. It became indebted to defendant bank and on 22 November it delivered to defendant an assignment of any and all sums of money due or to become due under the contract. On 27 November the corporation received a check for $155,865.50 from the United States in payment for work under the contract. On the same evening it mailed the check to defendant for deposit in its account together with a check in the sum of $150,000 drawn on its account to the order of the bank. The bank received the checks on 28 November and used the $150,000 check to pay the notes which the contractor had given to evidence its indebtedness to the bank. Sometime after 28 November defendant requested by letter dated 27 November that the Secretary of War approve the assignment; the assignment was approved 5 December. Mean while and on 2 December defendant sent out the required written notices of the assignment. The assignment would have been void if R.S. 3477 (31 U.S.C. 203) had not been amended on 9 October 1940, so as to authorize under certain conditions assignment of claims against the United States arising even under contracts theretofore made with the Government (54 Stat. 1029). The statute as SO amended provides in part that no claims under a contract executed prior to 9 October shall be assigned without the consent of the head of the department concerned and that certain written notices shall be given of all assignments of claims under Government contracts. A preferential transfer of property by an insolvent debtor in payment of an antecedent debt is void, if made within 4 months of the filing of a petition in bankruptcy (sec. 60, Bankruptcy Act, 11 U. S. C. 96). Held: At least as between the parties to the assignment, such an assignment effects an inchoate transfer of the assigned rights or property even though there must thereafter be compliance with statutory conditions before the assignment becomes enforcible. At least from the time that the moneys were paid to the contractor and the check mailed to the de fendant on 27 November, the transfer was per fected within section 60 of the Bankruptcy months prior to the bankruptcy (28 March | against the United States, is for the protection 1941), it was retroactively validated as of the date of its execution, which was more than four months prior to the bankruptcy. McKenzie v. Irving Trust Company (1945), 65 Sup. Ct. 405. Waiver.-R. S. 3477, prohibiting, with certain exceptions, the assignment of claims 703. Equitable claims. of the United States. The Government may waive the protection and recognize an assignment which does not comply with the statute and, in any event, such an assignment is valid between the parties thereto. Bank of California v. Commissioner of Internal Revenue (C. C. A. 9, 1943), 133 F. (2d) 428. For time limit on submission of claims under this section, see 1648a, post. Notes of Decisions Immunity of sovereign.-The United States Okla., 1941), 37 F. Supp. 93. cannot be sued without its consent but in If an agent of the Government acts withmany instances officers of the United States out authority or attempts to act under a be sued without it being construed as void or unconstitutional act of Congress, a suit against the Government. Barr v. he ceases to act in an official capacity and Rhodes (D. C., W. D. Ky., 1940), 35 F. suit against him is not a suit against the Supp. 223. can Whether a suit against an officer of the United States is essentially a suit against the United States depends upon the facts in each case. Id. Cross-claims are allowed to the amount of the Government's claim, where the Government voluntarily sues. However, no action can be sustained against the Government without specific statutory consent and no officer by his action can confer jurisdiction. To permit a demand in set-off to become the foundation of a judgment in a State court would be the same thing as sustaining the prosecution of a suit against the Government without consent. Judgment should have been limited to a dismissal of the Government's claim. U. S. v. Shaw (1940), 309 U. S. 495; reversing (Mich., 1939), 287 N. W. 477. Government, and hence exemption of the In action in three-judge Federal court to enjoin construction of dam pursuant to contract with War Department authorized by act of Congress, Secretary of War is not a "necessary party" if the' act is unconstitutional. Const. Amend. 10. Id. Immunity of the sovereign from suit is paramount even over rights founded on the Constitution. Pflueger v. U. S. et al. (App. D. C., 1941), 121 F. (2d) 732; certiorari denied (1942), 314 U. S. 617. The sovereign's immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced, and it applies alike to causes of action arising under acts of Congress and to those arising from violation of rights conferred on citizens by the Constitution. Id. The Government is immune from suit to Immunity of the United States from suit which it has not consented. State of Okla- is an attribute of sovereignty which cannot homa v. Guy F. Atkinson Co. (D. C., E. D. be bartered away. Id. 706. Prosecution by former officers and employees. By 2226, post, the first paragraph of this section, based on R. S. 190; 5 U. S. C. 99, was made inapplicable to officers appointed to carry into effect the Selective Training and Service Act. By 2191b(9), post, it was made inapplicable to certain officers and employees engaged in the renegotiation of war contracts, subject to certain limitations. 708. Set-off. Notes of Decisions Interest. (1st paragraph.)-Change cita- (4th paragraph.)-Change citation to read: tion to read: Whitbeck, Receiver v. U. S. Chicago, I. & L. Ry. v. U. S. (1933), 78 (1933), 77 Ct. Cl. 309; certiorari denied Ct. Cl. 96; certiorari denied (1933), 290 U. S. (1933), 290 U. S. 671. 671. 708-1. Military claims provision; scope, procedure, and appropriations.— That the Secretary of War, and, subject to appeal to the Secretary of War, such other officer or officers as he may designate for such purposes and under such regulations as he may prescribe, are hereby authorized to consider, ascertain, adjust, determine, settle and pay in an amount not in excess of $500, or in time of war not in excess of $1,000, where accepted by the claimant in full satisfaction and final settlement, any claim against |