In the comparatively recent case of Walton v. United States, 89 C. Cls. 28, the court said:

In the U. S. Code there are separate chapters dealing with Commissioned Officers, Warrant Officers, and Enlisted Men, indicating that "warrant officers" may not be generally classified with either commissioned officers or enlisted men. It seems to be a distinct classification, ranking after commissioned officers but before enlisted men.

In support of that view, the court quoted from United States Code, Title 10, sections 593 and 594 and Title 37, sections 13 and 26a. In addition to what was said by the court in that respect, it may be pointed out that section 4a of the act of June 4, 1920, 41 Stat. 761, referred exclusively to "warrant officers" while section 4b dealt with "enlisted men", and that section 8 of the act of June 16, 1942, Public Law 607, 77th Congress, 56 Stat. 362, effective as of June 1, 1942, deals with readjustment of pay and allowances for warrant officers of the services affected, while the pay and allowances of enlisted men are covered by section 9 of that act, 56 Stat. 363. Moreover, it may safely be said that whenever warrant officers and enlisted men of the Army are grouped together in legislative enactments, warrant officers are not classed as enlisted men, but the distinction is always drawn. The several statutes with reference to warrant officers of the Army, more particularly that of August 21, 1941, supra, would appear to emphasize the differentiation between warrant officers and enlisted men of the Army recognized by the Court of Claims in the abovecited case, and to establish clearly that warrant officers, as such cannot properly be classed or considered as enlisted men of the Army. See in this connection 27 Comp. Dec. 883.

When the act of July 2, 1926, was passed, warrant officers were no less a part of the military establishment than they are today, and warrant officers in the Navy had been recognized as officers of the Navy well nigh from the beginning. See Rush's case, 2 C. Cls. 167; Brown v. United States, 113 U. S. 568; Katzer v. United States, 52 C. Cls. 32; United States v. Hendee, 124 U. S. 309. But the Congress in section 13 of that act expressly and explicitly limited the right to additional pay of $2 per month to enlisted or enrolled men of the Army or of the Navy to whom the soldier's medal or the distinguished flying cross should be awarded, and made no provision for additional payment to warrant officers of either service, though warrant officers were eligible for the award of the medal or the cross as the case might be. It must be presumed that the Congress imposed the limitation advisedly and intentionally, and such limitation by necessary implication excludes warrant officers and all other recipients of the awards save enlisted or enrolled men from a right to additional payment by reason thereof. Expressio unius est exclusio alterius-the expression or naming of one is the exclusion of the other-is a fundamental canon

of statutory interpretation. Had the Congress intended that warrant officers of the Army or of the Navy awarded the soldier's medal or the distinguished flying cross should receive additional pay of $2 per month, it would have said so. Walton v. United States, supra.

Accordingly, it must be held that a warrant officer awarded the soldier's medal is not entitled to $2 per month additional pay prescribed by the statute in question for enlisted men, and you are not authorized to pay the voucher submitted, which is retained in this office.

(B-28618)

LONGEVITY PAY-MARINE CORPS RESERVE OFFICERS
SERVICE CREDITS

The provision in section 3 of the Pay Readjustment Act of 1942, requiring confirmation in grade and qualification for all general service in order that full time for periods during which an officer held a reserve commission may be counted for longevity pay purposes, applies only to the Naval Reserve Force and the Marine Corps Reserve Force in which, from 1916 to 1925, such confirmation and qualification were required, and does not apply to the other reserve services named therein the laws pertaining to which did not require such confirmation and qualification.

A Marine Corps Reserve officer who, prior to acceptance of a commission in the Marine Corps Reserve, held a commission in the Officers' Reserve Corps of the Army may be credited, for purposes of computing longevity pay under section 3 of the Pay Readjustment Act of 1942, with full time for all periods during which he held a commission in such Officer's Reserve Corps.

Assistant Comptroller General Elliott to Col. Tom E. Thrasher, Jr., U. S. Marine Corps, September 28, 1942:

There has been considered your letter of September 1, 1942, as follows:

There has been presented to this office for payment the attached voucher on which Major John R. Moe, U. S. Marine Corps Reserve, active, claims the difference between pay as an officer of the fourth pay period with over nine years' service at the rate of $287.50 per month, and with over fifteen years' service at the rate of $312.50 per month, for the period June 1 to August 31, 1942, inclusive. The records of this Headquarters, as furnished by the War Department, show that Major Moe accepted commission in the U. S. Army Reserve on September 12, 1924, and that he had continuous commissioned service until the date of his separation therefrom, July 6, 1938, a total of thirteen years, nine months, and twenty-five days. The records further show that Major Moe performed active duty as a commissioned officer in the U. S. Army Reserve Corps for the periods August 8, 1926, to August 22, 1926; July 21, 1929, to August 3, 1929; October 18, 1930, to October 31, 1930; October 7, 1934, to October 20, 1934; December 1, 1934, to February 15, 1936, and May 23, 1937, to June 5, 1937, all dates inclusive, a total of one year, four months, and twenty-six days' active commissioned service. The records further show that Major Moe accepted commission as a captain in the U. S. Marine Corps Reserve on July 18, 1938, and has held commission continuously since that date. Moe was promoted to the rank of Major in the Marine Corps Reserve for temporary service on May 8, 1942.

In 2 Comp. Gen. 771-772, it was held that "The provision of section 3, 'with full time for all periods during which they have performed active duty under reserve commissions, and with one-half time for all other periods during which they have held reserve commissions' has equal application to officers of the reserve forces of any of the services mentioned in the title of this act.' The services mentioned in the title of the act of June 10, 1922, are the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service."

540712m 43- -20

Accordingly, Major Moe has heretofore been credited and paid longevity pay on the basis of full time for all periods of active commissioned service and for onehalf time for all other periods during which he held a commission in the U. S. Army Reserve Corps. He had, therefore, a total of seven years, seven months, and eleven days' service for longevity purposes prior to accepting commission in the Marine Corps Reserve and has been paid accordingly.

Section 3 of the Act of June 16, 1942, Public Law 607, 77th Congress, insofar as here material, provides that:

"In computing the increase of pay for each period of three years' service, such officers shall be credited with full time for all periods during which they have held commissions as officers of any of the services mentioned in the title of this act, or in the Organized Militia prior to July 1, 1916, or in the National Guard, National Guard of the United States, or in the Officers Reserve Corps, or in the Naval Militia, or in the National Naval Volunteers, or in the Naval Reserve force, Naval Reserve, Marine Corps Reserve force, Marine Corps Reserve, Coast Guard Reserve, and the Reserve Corps of the Public Health Service, when confirmed in grade and qualified for all general service."

In view of the foregoing, doubt exists as to whether the undersigned may, under the provisions of Section 3 of the Act of June 16, 1942, supra, on and after June 1, 1942, pay officers of the Marine Corps Reserve longevity pay based on 100% for all service, both active and inactive, in the U. S. Army Reserve Corps prior to May 31, 1942. Your decision is therefore requested as to whether the undersigned is authorized to pay the enclosed voucher.

In view of the fact that there are a number of such cases now before this office it is requested that, if practicable, your decision be expedited.

Section 3 of the act of June 10, 1922, 42 Stat. 627 provided in part:

* * In computing the increase of pay for each period of three years' service, such officers shall be credited with full time for all periods during which they have held commissions as officers of any of the services mentioned in the title of this Act, or in the Organized Militia prior to July 1, 1916, or in the National Guard, or in the Naval Militia, or in the National Naval Volunteers, or in the Naval Reserve Force or Marine Corps Reserve Force, when confirmed in grade and qualified for all general service, with full time for all periods during which they have performed active duty under reserve commissions, and with one-half time for all other periods during which they have held reserve commissions.

This was construed as authorizing full time credit for longevity for time during which the officer held a commission in any of the named organizations, unless the statute applicable to the organization required confirmation in grade and qualification for all general service. The Naval Reserve Force Act of August 29, 1916, 39 Stat. 587, provided that when first enrolled in the Naval Reserve Force, members (except those in the Fleet Naval Reserve) should be given a provisional grade, rank or rating, required qualification for all general service in the Naval Reserve Force, and certain active services for confirmation. Accordingly, under the act of 1922, one-half time credit only was allowed for inactive service in a provisional grade in the Naval or Marine Corps Reserve Force. It will be noted that the Officers' Reserve Corps of the Army and the Public Health Reserve were not included in the named services for which full time credit was allowed for inactive service and those reserve services were included in the last clause of the section, that is, members were allowed one-half time credit for inactive service during the time the person held a commission in either of those reserves, and full time credit for active service, without reference to confirmation in grade and qualification for all general service. Section 11 of the Naval Reserve Act of Febru

ary 28, 1925, 43 Stat. 1083, provided that when on the indicated active duty officers of the Naval Reserve "shall be deemed to have been confirmed in grade and qualified for all general service." The same provision appears in section 7 of the Naval Reserve Act of June 25, 1938, 52 Stat. 1176, 1177.

In section 3 of the act of June 16, 1942, it is specifically provided that officers

shall be credited with full time for all periods during which they have held commissions as officers in * the Officers Reserve Corps, Coast Guard Reserve, and the Reserve Corps of the Public Health Service, when confirmed in grade and qualified for all general service. The provision now appearing in the law requiring confirmation in grade and qualifications for all general service applies only to the Naval Reserve Force and the Marine Corps Reserve Force in which, from 1916 to 1925, such confirmation and qualification were required. It does not require confirmation in grade and qualification for all general service in any of the other reserve forces named in the section as the laws for such other service did not require such confirmation and qualification. The only effect therefore of the limiting words is to deny to officers of the Naval or Marine Corps Reserve Force any credit for longevity during the time they held only a provisional grade in the Naval or Marine Corps Reserve Force.

You are authorized to pay the voucher, returned herewith, if otherwise correct.

(B-28624)

CONTRACTS-COST-PLUS-APPLICABILITY OF FAIR LABOR

STANDARDS ACT

If it be administratively determined that the interests of the Government will be best served by acquiescing in the view of a representative of the Administrator, Wage and Hour Division, Department of Labor, that guards employed by a cost-plus-a-fixed-fee contractor engaged in the operation of an ordnance plant are entitled to overtime pay under the Fair Labor Standards Act of 1938, otherwise proper reimbursements under the contract for overtime payments made to the guards in accordance with such interpretation of said act will not be questioned. The decision sets forth the evidence which will be accepted in support of the reimbursement vouchers. Comptroller General Warren to the Secretary of War, September 28, 1942: I have your letter of August 25, 1942, as follows:

There has been referred to the Office of the Chief of Ordnance by the Commanding Officer of the Radford Ordnance Works a request for advice and instructions as to the disposition of certain claims (and potential claims) for overtime worked by guards of the Hercules Powder Company, prime contractor with Ordnance under cost-plus-a-fixed-fee contract No. W-ORD-462, which request, after review by the Ordnance Department, is forwarded for your consideration and decision.

The factual background as to the derivation of such claims is presented in detail in letters, Hercules Powder Company, dated May 11, 1942, War Department, Radford Ordnance Works, dated June 8, 1942, and the indorsements and inclosures thereto, all forming part of the file herewith.

The claims arise under an interpretation of the Fair Labor Standards Act, 1938 (29 U. S. C. 201–219) as given by investigators of the Wage and Hour Division

of the Department of Labor to the contractor, which investigators stated it to be their opinion that the guards in question were covered by the act. The employer, Hercules Powder Company, had assumed in good faith that they were not so covered, and, therefore, had not paid overtime for the periods of time that the guards were engaged in work train duty, were having uniforms inspected, and were getting to their respective guard posts.

If the plant in question is engaged in production of goods for interstate commerce, and the inspectors of the Wage and Hour Division of the Department of Labor so contend, then these guards employed by the operating contractor apparently are covered by the Fair Labor Standards Act, and there arises against the contractors a contingent liability in the approximate amount of $57,000 in the instant case, for those wages accrued during the period when overtime was not paid such employees.

In its consideration of decisions on the matter, the Ordnance Department could find nothing by the courts on the specific question of whether cost-plus-afixed-fee contractors working on Ordnance phases of a Government contract and producing materials thereunder are engaged in interstate commerce. The Supreme Court of the United States in Kirschbaum v. Walling, Admr., and Arsenal Building Corporation v. Walling, Admr., 86 Adv. Op. 1054; 62 Sup. Ct. Rep. 1116, both decided June 1, 1942, did, however, broadly construe the Fair Labor Standards Act and held it applicable to employees engaged in the operation and maintenance of a building in which goods for interstate commerce were produced by the occupants of the building. The court did not agree with the owner of such building in his contention that his ownership was purely local in character, and that the Act did not apply when an owner-employer like himself was not engaged in an industry partaking of interstate commerce.

It seems to be generally conceded by the Ordnance Department, in its Manual of Instructions for the Administration of Contracts, Section XI-G-1, 2, and 3, and Section XI-I-4, that the Act is applicable. (However, the expression was in September, 1941, and after the fact upon which part of the claim arose in the instant case.) This same view is expressed by the Office of the Under Secretary of War as may be seen from the following excerpt from a memorandum dated September 30, 1941, Director of Purchases & Contracts, to The Quartermaster General:

11* * * Furthermore, it is the expressed policy of the War Department, that all its contractors should comply with the statement of labor policy adopted by the Advisory Commission on August 21, 1940. This statement of policy provides in part as follows:

"All work carried on as part of the defense program should comply with federal statutory provisions affecting labor wherever such provisions are applicable. This applies to the Walsh-Healey Act, Fair Labor Standards Act, the National Labor Relations Act, etc.'

"It is the opinion of this office that this policy was intended to apply to employees of cost-plus-a-fixed-fee contractors whenever applicable to employees of similar lump sum contractors."

The General Accounting Office, through the Assistant Chief, Audit Division, expressed a view as to the applicability of the Fair Labor Standards Act in a letter, dated June 30, 1942, sent through the Chief of Ordnance to the Commanding Officer, Wolf Creek Ordnance Plant. The letter stated that the Fair Labor Standards Act was applicable to custodial and administrative employees of Procter & Gamble, operators of the Ordnance Plant at Milan, Tennessee under a cost-plus-a-fixed-fee contract, W-ORD-494. While not so stated in the letter, the logical implication appears to be that other contractors operating under similar contracts are also covered by the Act.

The Ordnance Department is aware, of course, of the fact that the United States is not an employer as that term is defined in Section 3 (d) of the Fair Labor Standards Act, and is, therefore, specifically excluded from its requirements. See also 20 Comp. Gen. 24. This exclusion would not, however, cover Ordnance cost-plus-a-fixed-fee contractors as operating employers since such Ordnance Contractors have been designated in Title VIII, Article VIII-A-6 of the instant contract, and generally in other Ordnance contracts, to be independent contractors. The Supreme Court, in the case of Alabama v. King and Boozer, et al, decided November 10, 1941, 314 U. S.—, and the Comptroller General in his decisions B-19726, B-19052, 21 Comp. Gen. 682, and B-23012, dated February 9, 1942, expressed the same opinion. As independent contractors, they would be employers, as that term is defined in the Fair Labor Standards Act, and, if engaged in interstate commerce, as they appear to be, then their employees are entitled to the overtime provided for in the Act.