and the rate of pay for part-time charwomen in other Federal agencies on July 31, 1942.

If you find that part-time charwomen in the Bureau of Engraving and Printing should have been compensated at the rate of 65¢ an hour since August 1, 1942, your advice is requested as to what adjustments will be necessary with respect to salary payments made at the rate of 78¢ an hour, on and subsequent to August 1, 1942, to such employees who are still in the service of the Bureau of Engraving and Printing, as well as to such employees who are no longer in the service of the Bureau of Engraving and Printing.

The act of June 26, 1936, 49 Stat. 1969, provided:

That section 23 of the Independent Offices Appropriation Act, 1935, is amended by adding at the end thereof the following paragraph:

"Where the adjustment of regular hours of duty of employees subject to the provisions of the preceding paragraph requires the adjustment of regular hours of duty of any employee whose compensation is fixed under the Classification Act of 1923, as amended, the aggregate weekly earnings of such employee whose compensation is fixed under the Classification Act of 1923, as amended for fulltime service shall not be less by reason of such adjustment than his aggregate weekly earnings for full-time service prior to March 28, 1934. Full-time service within the meaning of this paragraph shall not be less than forty hours per week. For the purposes of this paragraph, authority is hereby granted to adjust the hourly rates of compensation of employees whose compensation is fixed under the Classification Act of 1923, as amended, to such extent as may be necessary to make the aggregate compensation for a forty-hour week equal to the compensation for a full-time week prior to March 28, 1934."

SEC. 2. This Act shall take effect as of the 1st day of the first calendar month following the date of its enactment.

Section 1 of the act of August 1, 1942, 56 Stat. 733, amends section 13 of the Classification Act of 1923, so as to change the salary schedules for certain grades in the crafts, protective and custodial service, including a provision under grade 2 "that charwomen working part time be paid at the rate of 65 cents an hour, and head charwomen at the rate of 70 cents an hour."

The 1936 statute above quoted merely saved the employees here involved from loss in weekly earnings of their basic compensation by reason of the requirement for reduction in hours of work per week necessitated by the establishment of a 40-hour workweek under the act of 1934, 48 Stat. 522, for employees at the Bureau of Engraving and Printing in the several trades and occupations, which saving was required by the law to be computed on the basic salary rates fixed by the Classification Act as of March 28, 1934. Cf. 22 Comp. Gen. 615, 617. There was no purpose or intent by the act to maintain a permanent differential between basic salaries in the Bureau of Engraving and Printing and salaries for the same work in other branches of the service.

So far as here material, the effect of the act of August 1, 1942, was to increase the basic salary of the part-time charwomen at the Bureau of Engraving and Printing from 60 cents to 65 cents per hour. There is no purpose or intention in either statute to authorize adjustment under the act of June 26, 1936, on the salary rates which since have been increased by statute above the March 28, 1934, level. Accordingly, the

legal salary rate, on and after August 1, 1942, for the employees here involved is 65 cents per hour, not 78 cents per hour.

If such employees have been paid at the rate of 78 cents per hour on and after August 1, 1942, as might be inferred from your letter, there is no alternative but to raise a charge against each of them, including both those in and out of service, for the amount of the overpayment and to institute collection proceedings. Of course, should a disallowance be made in the audit of the involved disbursing officer's account because of such overpayments there would exist authority under the provisions of the act of May 26, 1936, 49 Stat. 1374, to withhold current salary payments of the employees now in the service in such installment amounts as may be administratively determined to liquidate the overpayment within a reasonable time. Uncollectible indebtedness of employees who have been separated from the service should be forwarded to the Claims Division of this office for appropriate action.

(B-35261)

COMPENSATION-WAR OVERTIME PAY ACT OF 1943-SCOPE OF PROVISIONS EXCLUDING HEADS OF DEPARTMENTS, ETC.

The provisions of section 1 (c) of the War Overtime Pay Act of 1943 excluding from the benefits of the act heads of departments, independent establishments, and agencies relate only to the executive branch of the Government, and, therefore, the Architect of the Capitol, who functions as an officer or agent of the legislative branch of the Government, is not excluded from such benefits by said provisions.

Comptroller General Warren to the Architect of the Capitol, June 25, 1943:

I have your letter of June 18, 1943, requesting decision whether section 1 (c) of the "War Overtime Pay Act of 1943," 57 Stat. 76, operates to exclude the Architect of the Capitol from the benefits of the statute, that is, whether he properly is to be regarded as included in the classification "heads of departments, independent establishments, and agencies", as those terms are used in the statute.

The pertinent provisions of section 1 of the statute read

in or

That this Act shall apply to all civilian officers and employees under the United States Government * * except that this Act shall not apply to (a) elected officials; (b) judges; (c) heads of departments, independent establishments, and agencies *. As used in this section the term "elected officials" shall not include officers elected by the Senate or House of Representatives who are not members of either body.

* *

Exceptions (a), (b), and (c) in section 1 of the statute were intended to, and do, relate respectively to the legislative, judicial, and executive branches of the Government. That is to say, (1) only elected officials (as limited in the law) in the legislative branch, (2) only judges in the judicial branch, and (3) only heads of departments, independent establishments, and agencies in the executive branch are excluded from the benefits of the statute by exceptions (a), (b), and

(c) of section 1 thereof. See decision of May 29, 1943, B-31791, to the Register of Wills and Clerk of the Probate Court, District Court of the United States for the District of Columbia, wherein it was stated:

Section 1 of the "War Overtime Pay Act of 1943" approved May 7, 1943, Public Law 49, excepts from the benefits of the law “(b) judges; (c) heads of departments, independent establishments, and agencies." As exception (b) relates to judges in the judicial branch of the Government who correspond to heads of departments, independent establishments, and agencies in the Executive branch of the Government, it may be assumed that exception (c) does not relate to the judicial branch of the Government. In that connection, Supplement No. 1, dated May 25, 1943, to the regulation issued by the United States Civil Service Commission, is as follows:

"SECTION 7. Department, independent establishment, and agency.

"The term 'department, independent establishment, and agency' as used in Part I, section 2 (b) means a governmental establishment in the Executive branch which is not a component part of any other such establishment."

In your letter you express the view-supported by the authorities therein cited-that the Architect of the Capitol functions as an officer or agent of the legislative branch of the Government of the United States. I concur in that view. It follows, therefore, that section 1 (c) of the "War Overtime Pay Act of 1943," relating to the executive branch of the Government, has no application to the Office of the Architect of the Capitol. Also, as the Architect of the Capitol is not an elected official in the legislative branch of the Government, section 1 (a) of the statute does not operate to exclude him from the benefits of the law.

Accordingly, I have to advise that the Architect of the Capitol is entitled to the benefits of the statute.

(B-34724)

INSURANCE-USE OF PROCEEDS FOR REPAIR OR REPLACEMENT OF DAMAGED OR DESTROYED PROPERTY

In view of the provisions of the act of October 10, 1940, as amended, which authorize the insuring of Federally owned war public works facilities constructed or acquired under authority of the said act, and which evince the intent of the Congress that the program be as self-sustaining as possible, insurance proceeds may be used for the repair or replacement of damaged or destroyed facilities, and need not be covered into the Treasury as miscellaneous receipts in accordance with the provisions of section 3617, Revised Statutes.

Comptroller General Warren to Federal Works Administrator, June 26, 1943: I have your letter of May 21, 1943, submitting for decision the question as to the authority to use the proceeds of certain insurance policies for the reconstruction or replacement of damaged or destroyed war public works facilities. Your submission points out that such facilities had been constructed under the authorization contained in Title II of the so-called Lanham Act, 54 Stat. 1125, 1127, as

amended, and that specific authority to insure such property is contained in section 304 thereof, which provides:

* * *

Notwithstanding any other provisions of law, whether relating to the acquisition, handling, or disposal of real or other property by the United States or to other matters, by means of Government personnel, selected qualified private agencies, or public agencies (a) to deal with, maintain, operate, administer, and insure; (b) to pursue to final collection by way of compromise or otherwise, all claims arising therefrom; (c) to rent, lease, exchange, sell for cash or credit, and convey the whole or any part of such property and to convey without cost portions thereof to local municipalities for street or other public use: Provided, That any such transaction shall be made upon such terms, including the period of any lease, as may be deemed by the Administrator to be în the public interest:

Your letter then states:

Pursuant to the authority granted by the foregoing Section, the Administrator has insured a considerable number of Federally-constructed war public works facilities. In a number of other instances the projects have been leased to non-Federal public and private agencies subject to the following covenant in the lease on the part of the lessee:

"It will procure and maintain for the benefit of the Government such insurance covering the risks to which the Leased Property is exposed as is customarily carried in connection with similar facilities located in the same or a comparable area, in form and amounts reasonably sufficient to protect the Government's financial interest in the Leased Property, and subject to the following conditions:

"(1) the kinds and amounts of insurance and the insurers shall be subject to approval of the Government,

"(2) the insurance shall be made payable to the Government as the insured. "(3) the insurance policies shall be delivered promptly to the Government, "(4) the Lessee shall notify the proper insurance companies and the Govern ment promptly of any loss or damage to the Leased Property,

"(5) in the event of any losses covered by such insurance the Government may. at its option, apply any insurance proceeds received during the term of this Lease to the repair, restoration or replacement of the Leased Property, or any portion thereof, damaged or destroyed."

The usual form of policy insuring against loss or damage by fire or other catastrophe contains a provision similar to the following:

"This Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascer tained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this Company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this Company is liable pursuant to this Policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this Company in accordance with the terms of this Policy. It shall be optional, however, with this Company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof hereit required, of its intention so to do; but there can be no abandonment to this Company of the property described."

The general rule has prevailed in the Government for many years that, in the absence of a statute authorizing the payment of insurance premiums, appropriated moneys are not available for insurance premiums on Government-owned property, the Government itself assuming the risks against losses in that respect. 17 Comp. Gen. 419, 421. It can be assumed, therefore, that the special authori zation granted to the Federal Works Administrator by Section 304 of the Lan ham Act to insure Federally-owned war public works facilities was not for the sole purpose of permitting reimbursement to the Government for losses. The

Lanham Act was passed by the Congress to provide for the construction of community facilities to remedy an acute shortage of such facilities necessary for the health, safety and welfare of persons engaged in national defense activities so serious as to impede national defense activities. Because of their relation to the war effort it is of the utmost importance that these facilities be maintained and kept available through prompt repair or replacement in the event of damage or loss. The authority in the Federal Works Administrator to insure these properties permits these projects to be maintained in operation during the period of the war emergency without the necessity of returning to the Congress for additional funds for reconstruction or replacement whenever there is damage or loss.

The right to insure must of necessity carry with it the right to use the insurance proceeds to effect the purpose of the insurance. This purpose would be defeated in so far as the purpose of the Lanham Act is concerned if the Administrator was unable to avail himself of the proceeds of insurance provided for the war public works facilities constructed with Lanham Act funds. It is submitted that the clear intent of the Congress in authorizing the Administrator to insure Federal war public works facilities was to enable him to use the proceeds of insurance to maintain these facilities during the period of their need.

Section 3617, Revised Statutes, 31 U. S. C. 484, requires that the gross amount of all moneys received from whatever source for the use of the United States (with certain exceptions not involved here) shall be deposited and covered into the Treasury as miscellaneous receipts. Admittedly, however, the terms of this provision of law are general in scope and should receive a sensible construction with respect to any particular form of income or receipt. The question for determination here would appear to be whether by reason of the purpose or provisions of the Lanham Act, the inherent nature of insurance, or other factors having a material bearing on the matter, it reasonably may be concluded that it was the intent of the Congress that the proceeds of insurance on war public works facilities constructed or acquired under said act might be used for the reconstruction or replacement of such facilities.

The payments received from the insurers in these cases are somewhat analogous to moneys received from private sources in compensation for damage to or loss of Government property. In fact, where property is covered by insurance, it well may be that the Government will first be made whole for damage thereto or loss thereof by the insurance company, which then will collect from the person responsible for the damage or loss-under its right of subrogation-the exact amount previously paid the Government. In such case, the analogy is even closer. However, as to amounts paid as damages, the decisions of the accounting officers of the Government have been many and consistent to the effect that moneys so received must be covered into the Treasury as miscellaneous receipts. 14 Comp. Dec. 87, and decisions cited therein; 20 id. 349; 22 id. 379; 3 Comp. Gen. 808; 5 id. 928, and decisions cited therein; 15 id. 683.

However, apparently, the matter of insurance proceeds has been considered-at least under certain circumstances-as in a different