therein described from the date of absence until a decision has been made by the head of the department concerned as to the missing person's status. Where the status of the person is such that payment may not be made to him personally his account is to be credited with the same pay and allowances to which he was entitled at the time of the beginning of the absence or which may become due thereafter. The credit contemplated by this section 2 is a current credit running from day to day until the status of the missing person is definitely determined by death or otherwise and, if from such credited pay the allotment payments authorized by section 3 of the act have been made currently for a period subsequent to the missing person's death, such payments are validated to the extent otherwise subsequently provided. The obvious purpose of the authorization contained in section 2 is to provide and maintain for a fixed period prompt current payments from which the allotment may be continued or initiated (where the absent person may not be paid personally) solely by reason of the uncertain status of such person and, if accounts have been credited and allotment payments made there from under section 3 subsequent to the death of such person as found (whether conclusively or administratively determined) under section 5, such payments although contrary to law, are required to be passed to the credit of the disbursing officer concerned under the provisions of the act. But there is no provision in the law, either express or implied, suggesting that a finding of death operates to authorize the commencement initially of payments, or as stated in section 2 of the act, "to have credited to his account" from the date of death to the date of the finding thereof so as to confer another gratuity upon the beneficiary of the deceased person in addition to the six months' gratuity authorized by the act of June 4, 1920. The provisions permitting payments during absence contemplate payments from the date the person is reported to be missing but, if such payments have not been made or the missing person's account has not been credited until after the date of his death has been determined, it is then too late to initiate a credit of illegal pay and allowances during that interim. As to promotion, it is settled law that in the absence of statutory authority so providing, a promotion after the death of an officer does not authorize pay in the promoted grade or any other. Although section 5 of the act of June 30, 1942, 56 Stat. 465, Public Law 639, cited in the correspondence, provides that persons temporarily appointed thereunder shall be entitled to the pay and allowances of the grade or rank to which so'appointed from the dates on which such appointments are made by the President and shall be regarded for all purposes as having been accepted on the date made without formal acceptance or oath of office, the "appointment" or "promotion" of a missing person subsequent to his death is not effective to increase his

pay, unless possibly payments thereunder which were made prior to a finding under the act of March 7, 1942, that he was dead. Posthumous appointments are specifically provided elsewhere with a prohibition against the payment of any bonus gratuity, pay or allowances by virtue thereof. See Public Law 680, approved July 28, 1942, 56 Stat. 722.

On the facts presented the six months' gratuity payment to the beneficiary of the deceased officer under the provisions of the act of June 4, 1920, should be computed on the pay to which the officer was lawfully entitled at the time of his death December 23, 1941. The Standard Form 1057 executed by the beneficiary and abstracts from the service record of the officer which were included as one of the inclosures with your letter are returned herewith.

(B-29285)

CONTRACTS-DEFENSE ARTICLES-SCOPE OF DISCRETIONARY AUTHORITY CONFERRED BY ACT OF MARCH 11, 1941

While section 3(a) of the act of March 11, 1941, authorizes the procurement of defense articles "notwithstanding the provisions of any other law," it does not vest administrative departments with unlimited discretion in determining whether certain provisions, which ordinarily are required by law to be included in contracts, may be omitted, and it is only when there is some sound basis, either by reason of a particular provision or by reason of the facts in a particular case, for the belief that the inclusion of a certain provision will unjustly interfere with the carrying out of the purpose of the said act that it is within the discretion of administrative officers to decide whether such provision should be omitted from the contract. Section 3(a) of the act of March 11, 1941, authorizing the procurement of defense articles "notwithstanding the provisions of any other law," may not be considered as authorizing the omission of the provisions of the 8-hour law of June 19, 1912, as amended, from contracts for the processing of Government-owned tobacco or from other contracts for the procurement of defense articles entered into pursuant to the 1941 act, unless there are present some facts or circumstances which would indicate that the inclusion of said provisions would unduly interfere with such procurement. Comptroller General Warren to the Secretary of Agriculture, October 27, 1942: I have your letter of September 28, 1942, as follows:

Under date of August 27, 1942, the Contract Examining Section of your office addressed a letter to the Surplus Marketing Administration of this Department, calling attention to the fact that the contract between Federal Surplus Commodities Corporation and the Brown and Williamson Tobacco Corporation, dated January 2, 1942, and numbered DA--FSC-397, for the processing of tobacco does not contain provisions relative to the Eight-Hour Law of June 19, 1912, as amended by section 303 of the act of September 9, 1940, and requesting an explanation for such omission.

In order to fulfill requisitions by the British Food Mission, the Federal Surplus Commodities Corporation purchased leaf tobacco and, under the abovementioned contract, had same processed into cigarette and pipe tobacco. Payments for the purchases and processing were made under appropriation Symbol No. 12-111/30026 (34) —Defense Aid-Agricultural Industrial and other commodities (Allotment to Agriculture) 1941-1943 (AMA), by which funds appropriated for the purposes of the act of March 11, 1941 (Lend-Lease) were made available to the Department of Agriculture. The cigarette and pipe tobacco was delivered to the British Food Mission and the entire transaction constituted a procurement of a defense article for the Government of a country whose defense

the President deems vital to the defense of the United States, as authorized under section 3(a) of said act of March 11, 1941.

Your attention is invited to the language of said section 3(a), which authorizes the procurement of such defense article "notwithstanding the provisions of any other law." This phrase, so quoted, is all inclusive and admits no exceptions to its scope. It is clear and unambiguous. It is our belief that this provision, to give it full import, confers administrative discretion in the employment of means and selection of contractual provisions in the procurement of defense articles. To that extent, therefore, the inclusion of the requirements of the Eight-Hour Law in such procurement contracts is not mandatory. In this connection, we note the language in your opinion, 18 [20] Comp. Gen. 890, 895:

"It has been held that where a discretion of this kind has been conferred upon an officer and a contract is made in which that discretion has been exercised that the validity of the contract can not be made to depend on the degree of wisdom or skill which may have accompanied its exercise. United States v. Speed, 8 Wall. 72."

We trust that this explanation, common to this and several other contracts which we have entered into, will be sufficient for your purposes.

As is stated in your letter, contract No. DA-FSC-397 provides for the processing of tobacco furnished to the contractor by the Government and there is no question but that such contract is one "which may require or involve the employment of laborers or mechanics." Therefore, pursuant to the provisions of the act of June 19, 1912, 37 Stat. 137, as amended by section 303 of the act of September 9, 1940, 54 Stat. 884, said contract is one which ordinarily should contain a provision stipulating that no laborer or mechanic employed thereunder shall be required or permitted to work more than 8 hours in any one calendar day without the payment of time and one-half for overtime. In other words, the act of June 19, 1912, constitutes a mandatory directive to officers and agents of the Government to include the specified provision in all applicable contracts. See 20 Comp. Gen. 890, 892, 17 id. 937.

However, it is urged in your letter of September 28, supra, that under the terms of section 3 (a) of the act of March 11, 1941, 55 Stat. 31, contracts for the procurement of defense articles thereunder may be entered into by administrative officers "notwithstanding the provisions of any other law" and, therefore, that it is entirely discretionary with administrative officers as to whether or not the provisions of the 8-hour law should be included in contracts, such as the instant one, covering the procurement of defense articles under the act of March 11, 1941.

The act of March 11, 1941, provides, in pertinent part, as follows:

SEC. 3. (a) Notwithstanding the provisions of any other law, the President may, from time to time, when he deems it in the interest of national defense, authorize the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government

(1) To manufacture in arsenals, factories, and shipyards under their jurisdiction, or otherwise procure, to the extent to which funds are made available therefor, or contracts are authorized from time to time by the Congress, or both, any defense article for the government of any country whose defense the President deems vital to the defense of the United States.

(2) To sell, transfer title to, exchange, lease, lend, or otherwise dispose of, to any such government any defense articles, but no defense article not manufactured or procured under paragraph (1) shall in any way be dis posed of under this paragraph, except after consultation with the Ch

Staff of the Army or the Chief of Naval Operations of the Navy, or both.

*

Consideration of said provision does not indicate that the phrase "notwithstanding the provisions of any other law", used therein may be said to confer on administrative officials the broad discretionary powers urged in your letter of September 22, supra. It seems clear from a consideration of the terms of said provision as a whole, that by the inclusion of the phrase in question in the language of the act, the Congress did not intend that all laws which might be applicable to the procurement, manufacture, and transfer of defense articles could be waived, suspended, or disregarded by administrative departments in their discretion, but it intended that only those laws should be suspended, waived, or disregarded whose provisions otherwise might prohibit or unduly interfere with the carrying out of the purpose intended to be accomplished by said act, namely, the manufacture and procurement of defense articles and the sale, transfer, lease, etc., thereof, to countries whose defense the President deems vital to the defense of the United States. See House Report No. 18 and Senate Report No. 45 on the Bill H. R. 1776, 77th Congress, which later became the act here involved. Accordingly, it cannot be said that administrative departments possess the authority to exercise unlimited discretion in determining whether certain provisions, which ordinarily are required by law to be included in contracts, may be omitted in the execution of contracts for the procurement of defense articles. Rather, in order for the omission of a particular statutory provision or provisions from contracts for the procurement of defense articles to be authorized, it should appear that the inclusion of such provision or provisions would preclude or unduly interfere with the procurement of the defense articles, or the doing of something which the act of March 11, 1941, authorizes to be done. When there is some sound basis, either by reason of the terms of a particular provision or by reason of the facts in a particular case, for the belief that the inclusion of a certain provision in a contract will preclude or unjustly interfere with the procurement of a defense article or the doing of something which is authorized by the act of March 11, 1941, to be done then it is within the discretion of administrative officers to decide whether such provisions should be omitted from the contract.

However, it is not readily apparent that the inclusion in contracts of the provisions required by the 8-hour law will preclude or unjustly interfere with the procurement of defense articles or otherwise restrict departments in doing something which the act of March 11, 1941, authorizes to be done. In this connection, attention is invited to the reports of the committees of the Senate and of the House of Representatives on the Bill H. R. 1776, supra. Moreover, there is

nothing in your letter indicating that by reason of some factual situation peculiar to the instant transaction the inclusion of the provisions required by the 8-hour law in the instant and similar contracts would have precluded or unduly interfered with the procurements in question.

Therefore, you are advised that the explanation furnished in your letter is not considered sufficient to establish that the action of your Department in omitting the provisions of the 8-hour law from the instant and similar contracts was authorized. However, since the omission of the provisions required by said law does not appear to have been due to any willful disregard by your Department of the requirements of the act of June 19, 1912, as amended, the instant and similar contracts heretofore entered into by your Department will not be further questioned by this office solely because of such omissions. But it is to be understood that such provision must be included in future contracts of your Department for the procurement of defense articles, unless there are present some facts or circumstances which would indicate that the inclusion of said provisions would preclude or unduly interfere with the carrying out of the provisions of the act of March 11, 1941, supra.

(B-29440)

TRANSPORTATION-DEPENDENTS OF MILITARY AND NAVAL PERSONNEL REPORTED AS INJURED, DEAD, MISSING, ETC. While section 12 of the act of March 7, 1942, relating to the transportation of dependents of persons officially reported injured, dead, missing, etc., is silent as to the method of transportation and the basis for payment therefor, the said section should, with respect to dependents of military and naval personnel, be considered a temporary modification of prior laws as to the conditions under which dependents of such personnel may be furnished transportation, and, hence, should be administered in accordance with such prior laws and regulations thereunder, except when the express provisions thereof are in conflict with said laws and regulations. Assistant Comptroller General Elliott to Col. J. P. Tillman, U. S. Army, October 28, 1942:

There has been received, by indorsement dated October 2, 1942, your letter of September 28, 1942, as follows:

Submitted herewith is voucher, with supporting papers, covering claim of Mrs. Robert F. Parks, wife of 1st Sgt. Robert F. Parks, for reimbursement of her traveling expenses from Seattle, Washington to Washington, D. C. in the amount of $159.00. The voucher has been submitted to the undersigned, a disbursing officer, for payment under the provisions of the Act of March 7, 1942 (Public Law 490-77th Congress) pertaining to dependents of military personnel reported "missing in action". The supporting data with the voucher would appear to properly establish that Mrs. Parks is the lawful wife of 1st Sgt. Robert F. Parks; the records properly reflect the fact that Sgt. Parks is officially reported "missing in action"; and the legal residence has been properly established.

Section 12 of the above mentioned act provides that "The dependents and household and personal effects of any person on active duty (without regard 540712m-43-28