(Volume 51, Part 11, Congressional Record, pp. 10420-10425), it was stated with respect thereto (page 10425):

On amendment No. 225: Inserts the provision, proposed by the Senate, that gas shall not be purchased out of the appropriations in this act for use in any public building in Washington, D. C., at a rate in excess of 70 cents per thousand feet.

It seems apparent from the foregoing that it was the legislative intention that the provision there under consideration was to relate only to public buildings in the District of Columbia.

The provision of the later act, now under consideration, appears to have been inserted by the House Committee in the District of Columbia appropriation bill for the fiscal year 1917, but was removed there from by the Senate Committee (see House Report No. 721 and Senate Report No. 669, 64th Congress, 1st Session), and appears to have been restored to the bill by an amendment offered by Senator Norris, of Nebraska, on the floor of the Senate. See Volume 53, Part 12, Congressional Record, pp. 11971-11979. The provision appears to have been an enlargement of the previous provisions contained in the District of Columbia Appropriation Acts for the fiscal years 1915 and 1916, in that, whereas under the two earlier provisions the limitation was confined to funds appropriated by those acts and related only to payments to the Washington Gas Light Company for gas furnished public buildings, the provision here involved enlarged the limitation to make it applicable to all appropriations thereafter made by any act and was made applicable, also, to payments to the Georgetown Gas Light Company as well as to the Washington Gas Light Company for gas furnished public buildings. The intention was to negative any liability over and above a maximum rate of 70 cents per one thousand cubic feet for gas furnished by either of those two companies to public buildings. In offering the amendment, Senator Norris stated with respect thereto, in part, as follows:

Mr. President, that provision, in substance, has been in the District of Columbia appropriation bill for several years. Several years ago, in March, 1914, an amendment was put on the appropriation bill here in the Senate that limited the price that would be paid for gas by the Government of the United States to the Washington Gas Light Co. to 70 cents per 1,000 cubic feet. That amendment went on in the shape of a limitation after a general amendment had been stricken out on a point of order. The House, ever since that, have put the language into the District appropriation bill. They have enlarged it so as to cover both gas companies and the entire District and all appropriations, whether made in this bill or other bills, appropriating for the payment of gas in the District of Columbia. (Cong. Rec. Vol. 53, Part 12, p. 11971).

Thus, while the provision was an enlargement of the two earlier provisions, apparently the sponsor of it in the Senate regarded the provision-previously inserted by the House-as intended to apply only to gas furnished public buildings in the District of Columbia. While in December, 1925, in the decision in 5 Comp. Gen. 448, referred to in your letter, the act was applied to gas furnished by the

Georgetown Gas Light Company of Montgomery County, Maryland, then a subsidiary of the Georgetown Gas Light Company, to Government buildings in Montgomery County, Maryland, the Georgetown Gas Light Company of Montgomery County, Maryland, declined to accept that view and subsequently filed suit in the United States District Court for the District of Maryland-At Law 4676-claiming compensation for gas furnished the agencies in the buildings referred to in Montgomery County at their regular rates for similar service to the public. The Government urged in defense that the act here involved prevented charging for the gas a rate in excess of 70 cents per one thousand cubic feet. The court, in its oral opinion of June 22, 1932, stated that it accepted the judgment of the Government as sound, that “we should look through form to substance in a case of this kind, and not allow a mere corporate fiction to be set up to evade the expressed purpose of a legislative act", and that it was "willing to assume that if we did otherwise find warrant in the statute for the construction contended for by the Government, I should ignore the corporate fiction and say that this Montgomery County corporation was simply an agency, a cloak, a means whereby the main, the parent corporation might act." However, the court held, for reasons discussed and set forth in its opinion, that the act did not apply to public buildings outside the District of Columbia, and entered judgment in favor of the plaintiff for the amount claimed. No appeal was taken and, after an appropriation therefor, the judgment was paid under settlement of this office dated March 17, 1933. I am not aware of any other judicial determination involving the extent of the applicability of the act.

While the matter of transportation of gas from one State to another is a matter of interstate commerce, subject to Federal control and regulation (see the Natural Gas Act, 52 Stat. 821), the matter of rates charged consumers of gas is ordinarily a matter of local regulation. This has been held to apply to the retail sale of gas at the burner tips by one who pipes the gas into the State, or by one who is a local distributor acquiring the gas from another who has similarly brought it into the State. See East Ohio Gas Co. v. Tax Commission, 283 U. S. 465; Illinois Gas Co. v. Public Service Co., 314 U. S. 498; Memphis Gas Co. v. Beeler, 315 U. S. 649. While it may be that the Congress has the power to impose any limitation it may see fit and proper upon the rate or the amount that the Government may pay for gas furnished to it, it is not believed that, by the provision of law here involved, it intended to regulate or limit rates on gas furnished outside of the District of Columbia.

Accordingly, and in view of the foregoing judicial determination in the matter, it is concluded that the provisions of the act of 1916,

supra, are not applicable to public buildings outside the District of Columbia. Hence, the question you submit, whether the relationship between the Washington Gas Light Company and the Rosslyn Gas Company is such that the companies should be regarded as one insofar as the gas furnished is concerned, is not for consideration or decision at this time.

(B-31288)

PAY-RETIRED NAVY PERSONNEL ON ACTIVE DUTY-SERVICE

CREDITS

Officers of the Regular Navy on the retired list who are ordered to active duty and who, under section 15 of the Pay Readjustment Act of 1942, are entitled to "full pay and allowances of the grade or rank in which they serve on active duty" are entitled to count inactive service since retirement in computing their active duty pay under section 1 of said act, as amended by the act of December 2, 1942; and the same rule is applicable in computing under section 3 of said Pay Readjustment Act, as amended, the active duty pay of retired Naval Reserve officers on active duty. Insofar as the answer to question 7 in the decision in 22 Comp. Gen. 439 is inconsistent herewith, it will no longer be followed.

In computing under section 8 of the Pay Readjustment Act of 1942 the active duty pay of retired enlisted men and warrant officers of the Regular Navy and Naval Reserve serving on active duty as warrant officers, inactive service on the retired list may not be counted.

In time of war and six months thereafter, retired warrant officers and enlisted men of the Regular Navy and Naval Reserve who, when appointed to temporary commissioned rank after recall to active duty, are entitled under section 3A of the Pay Readjustment Act of 1942, as added by the act of December 2, 1942, to count for purposes of active duty pay under section 1 or 3 of the said Pay Readjustment Act "all periods during which they were enlisted or held appointments as warrant officers" may count inactive service on the retired list.

Assistant Comptroller General Elliott to the Secretary of the Navy, January 19, 1943:

There has been considered your letter of December 19, 1942, as follows:

The Act approved December 2, 1942 (Public Law 785-77th Congress), made certain amendments to Sections 1 and 3 of the Pay Readjustment Act of 1942, approved June 16, 1942 (Public Law 607-77th Congress), and added to said Section 3 a new Section 3A.

The amendments to said Sections 1 and 3 of the Pay Readjustment Act of 1942 provide, in substance, that in computing the services for all pay purposes of commissioned officers of the Regular Navy and Naval Reserve, exclusive of commissioned warrant officers, they shall be credited with full time for all periods during which they have held commissions as officers of the several branches of the military and naval services therein named.

The new Section 3A is to the effect that during the existence of any war declared by Congress and for six months immediately following the termination of such war, in computing service for all pay purposes, commissioned officers of the Regular Navy and Naval Reserve, exclusive of commissioned warrant officers, may count, in addition to the periods during which they have held commissions, full time for all periods during which they were enlisted or held appointments as warrant officers or Army Field Clerks in the services enumerated therein.

In connection with the foregoing, your decision is requested as to whether under Sections 1 and 3 of the Pay Readjustment Act of 1942, as amended by the

Act of December 2, 1942, and the new Section 3A added to said Section 3 by the latter Act:

(a) Retired commissioned officers of the Regular Navy and Naval Reserve may count for all pay purposes time elapsing between effective date of retirement and date on which entitled to active duty pay and allowances upon recall. (b) Whether retired enlisted men and warrant officers of the Regular Navy and Naval Reserve appointed to temporary warrant or commissioned rank after recall to active duty may count for all pay purposes time elapsing between effective date of retirement and date on which entitled to active duty pay and allowances upon recall to active duty as enlisted men or warrant officers in the computation of longevity and period pay increases to which entitled in temporary commissioned rank.

The Navy Department will appreciate your early reply in this matter.

The act of December 2, 1942, 56 Stat. 1037, Public Law 785, referred to in your letter, provides:

That the eleventh paragraph of section 1 of the Pay Readjustment Act of 1942 (Public Law 607), approved June 16, 1942, is amended to read as follows:

"In computing the service for all pay purposes of officers paid under the provisions of this section, 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 National Guard Reserve, or in the 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, or in the Philippine Scouts, or in the Philippine Constabulary, and service of Coast and Geodetic Survey officers authorized in section 2 (b) of the Act of January 19, 1942 (Public Law 402, Seventy-seventh Congress): Provided, That for officers in service on June 30, 1922, there shall be included in the computation, in addition to the service set forth above, all service which was then counted in computing longevity pay, and service as a contract surgeon serving full time. Longevity pay for officers in any of the services mentioned in the title of this Act shall be based on the total of all service in any or all of said services which is authorized to be counted for longevity pay purposes under the provisions of this Act or as may otherwise be provided by law."

Sec. 2. The first paragraph of section 3 of the Pay Readjustment Act of 1942 (Public Law 607), approved June 16, 1942, is amended to read as follows: "Sec. 3. When officers of the National Guard or of the Reserve forces of any of the services mentioned in the title of this Act, including Reserve officers, are authorized by law to receive Federal pay, except armory drill and administrative function pay, they shall receive pay as provided in section 1 of this Act, and in computing their service for pay they 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 National Guard Reserve, or in the 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, or in the Philippine Scouts, or in the Philippine Constabulary, and service authorized in section 2 (b) of the Act of January 19, 1942 (Public Law 402, Seventh-seventh Congress)." Sec. 3. The Pay Readjustment Act of 1942 (Public Law 607), approved June 16,

1942, is amended by inserting after section 3 thereof the following new section:

"Sec. 3A. During the existence of any war declared by Congress and for six months immediately following the termination of such war, in computing the service for all pay purposes of officers paid under the provisions of section 1 or 3 of this Act, such officers, in addition to the time required to be credited by such sections, shall be credited with full time for all periods during which they were enlisted or held appointments as warrant officers or Army field clerks or as commissioned warrant officers in any of the services mentioned in the title of this Act, or in the Regular Army Reserve, or in the organized Militia prior

to July 1, 1916, or in the National Guard, or in the National Guard Reserve, or in the National Guard of the United States, or in the enlisted 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, or in the Philippine Scouts, or in the Philippine Constabulary. The provisions of this section shall not be construed to permit any commissioned officer to receive pay and allowances in excess of the maximum limitations imposed upon the total pay and allowances of any rank or grade by any of the provisions of this Act." Sec. 4. This Act shall become effective as of June 1, 1942, but no back pay or allowances for any period prior to such date shall accrue by reason of the enactment of this Act.

To determine the application of these provisions to retired officers on active duty with respect to the counting of their inactive time on the retired list for pay purposes, it seems necessary to refer briefly to some of the prior statutes and decisions. However, it should be clearly understood that this decision has no reference to retired pay, as distinguished from active duty pay for retired officers.

In the case of United States v. Tyler, 105 U. S. 244, decided in 1881, it was held that under the provisions of section 1262, Revised Statutes, an officer of the Army could count inactive service on the retired list for longevity pay purposes to increase his retired pay. That decision did not affect the pay of officers on the retired list of the Navy, since it was based solely upon the provisions of a statute applicable to the Army. See Thornley v. United States, 113 U. S. 310. The effect of the Tyler case, supra, was negatived by the act of March 2, 1903, 32 Stat. 927, 932, which provided that "except in case of officers retired on account of wounds received in battle," officers then or thereafter retired should not receive further increases of longevity pay for periods on the retired list. See, also, Faust v. United States, 42 C. Cls. 94, holding that retired officers of the Navy on active duty were not entitled to longevity credit for time on the retired list.

By acts subsequent to the act of 1903, periods of active service performed by retired officers after retirement were authorized to be counted for longevity pay purposes to increase their retired pay. See, for example, the act of July 1, 1918, 40 Stat. 704, 717, applicable to retired officers of the Navy, Marine Corps, and Coast Guard, and the act of May 12, 1917, 40 Stat. 40, 48, applicable to officers of the Army.

Effective July 1, 1922, the pay authorized for retired officers of the Navy was governed by section 17 of the act of June 10, 1922, 42 Stat. 632. That section, as amended by the act of May 31, 1924, 43 Stat. 252, and the act of May 26, 1928, 45 Stat. 774, was as follows:

That on and after July 1, 1922, retired officers and warrant officers shall have their retired pay, or equivalent pay, computed as now authorized by law on the basis of pay provided in this Act, which pay shall include increases for all active duty performed since retirement in the computation of their longevity pay and pay periods: Provided, That nothing contained in this Act shall operate to reduce the present pay of officers, warrant officers, and enlisted men now on the retired list or officers or warrant officers in an equivalent status of any of