proviso in question qualifies and restrains the generality of the substantive enactment to which it is attached; and there appears no room for doubt that the Congress intended thereby to restrict the general authority granted to the Secretary of War in the act of July 2, 1940, by excepting all cases where the cost-plus-a-percentage-ofcost system of contracting might be employed, so that, to the extent this system of contracting should be used, both the funds otherwise made available, and the authority to enter into contracts, for the purposes enumerated in section 1 of said act, would be denied. As stated by the court in United States v. Certain Land, Etc., 46 F. Supp. 921, at page 926, in connection with a matter involving the construction to be placed upon the proviso in question, "The provision against cost-plus-a-percentage contracts amendment, deliberately inserted, and imposes a restriction that must be observed."

was an

Not only is an unauthorized contract unenforceable according to its terms, but no contract may be implied where a statute positively prohibits the transaction. The United States is neither bound nor estopped by acts of officers or agents in entering into, approving, or purporting to authorize agreements prohibited by law, even though it appears that the Government may have benefited thereby; and general principles of equity will not be applied to frustrate the purpose of such laws or to thwart public policy. Limitations on authority to impose contract obligations upon the United States are as applicable to contracts by implication as they are to those expressly made. See Sutton v. United States, 256 U. S. 575; Pan American Company v. United States, 273 U. S. 456; and Providence Engineering Corp. v. Downey Shipbuilding Corp., 294 F. 641, certiorari denied, 264 U. S. 586.

In Bank of the United States v. Owens et al., 2 Peters 527, there was considered a contract reserving a greater rate of interest than that provided for in the charter of the Bank of the United States. After observing that "although the act of incorporation forbids the taking of a greater interest than six per cent., it does not declare void any contract reserving a greater sum than is permitted," the Court stated:

The question then is, whether such contracts are void in law, upon general principles.

The answer would seem to be plain and obvious, that no Court of justice can in its nature be made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country, how can they then become auxiliary to the consummation of violations of law?

To enumerate here all the instances and cases in which this reasoning hạẽ been practically applied, would be to incur the imputation of vain parade. There can be no civil right where there can be no legal remedy; and can be no legal remedy for that which is itself illegal.

540712m43-52

Quoting from that decision with approval in Gibbs v. Baltimore Gas Co., 130 U. S. 396, 412, where a contract in restraint of trade was sought to be enforced, the Supreme Court held as follows:

it is clear that contracts in direct violation of statutes expressly forbidding their execution, cannot be enforced.

The question is not one involving want of authority to contract on account of irregularity of organization or lack of affirmative grant of power in the charter of a corporation, but a question of the absolute want of power to do that which is inhibited by statute, and, if attempted, is in positive terms declared "utterly null and void."

"The rule of law," said Parker, C. J., in Russell v. DeGrand, 15 Mass. 35, 39, "is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an unlawful bargain."

We cannot assist the plaintiff to get payment for efforts to accomplish what the law declared should not be done, and the judgment must be Affirmed.

In another case, George M. Davis v. United States, 59 C. Cls. 197, the plaintiff sued to obtain payment for certain printing work done for the U. S Fuel Administration which said agency was required by the provisions of section 87 of the act of January 12, 1895, 28 Stat. 622, to procure from the Government Printing Office. The Court of Claims held that, “While the claim is beyond doubt an equitable one, we find no legal way for the rendition of judgment," giving the reasons for its action, in part, as follows:

Where a statute in express language circumscribes the authority and power of an officer of the Government and expressly directs the manner of securing supplies of the character here furnished, we are not, in the absence of some precedent to that effect, authorized in holding the United States liable for a contract made in direct opposition to existing law.

*** If an officer of the Government is positively forbidden to enter into a contract, and in addition to this is mandatorily directed to act in a certain way under prescribed conditions, he may not disregard the mandate of the law and obligate the United States in so doing. His authority to act is derived from the statute.

Therefore, whatever the value or usefulness of the articles and services obtained by you from the Western-Electro Mechanical Company, Inc., and furnished to the United States under your contract, as shown in the foregoing, the procurement thereof as the result of a cost-plus-a-percentage-of-cost system of contracting was specifically prohibited and excepted from the authorizations otherwise granted in the act of July 2, 1940. Consequently, I have to advise that there is no legal authority in this office to allow any part of your claim.

(B-27272)

UNIFORM ALLOWANCE-ARMY OFFICER RECEIVING PAY OF THIRD PERIOD ADVANCED TO PAY OF FOURTH PERIOD

The right of an Army officer on active duty on December 4, 1942, to the uniform allowance authorized by the act of that date for personnel of the Army of the United States on active duty on or after that date who were on active duty on April 3, 1939, or were thereafter accepted for active duty, and who were entitled to pay of the first, second or third period on April 3, 1939, or

on date of acceptance, is not affected by the fact that after acceptance for active duty on April 14, 1942, as a captain entitled to pay of the third period, he became entitled to the pay of the fourth period and was subsequently released and thereafter recalled to active duty while entitled to the fourth period pay,

Assistant Comptroller General Elliott to Lt. Col. R. L. Scott, U. S. Army, February 11, 1943:

There has been considered your letter of December 31, 1942, as follows:

Your decision is requested as to whether I am authorized to make payment on the inclosed voucher in favor of: Capt. Clarence W. Happ, 0117127, AC, AUS, in the amount of $250.00, to cover allowance for uniform and equipment authorized by Act of Congress (Public Law No. 788, 77th Congress) approved December 4, 1942.

The copies of orders attached to this voucher to support this claim show that Capt. Happ entered on Active Duty on April 14, 1942, and was relieved from Active Duty on June 29, 1942, because he was found to be physically disqualified. He was again ordered to Active Duty on August 27, 1942, and has remained on Active Duty since that date.

For the period April 14, 1942 to May 31, 1942, Capt. Happ was paid under the third pay period. However, under the Act approved December 2, 1942, he is entitled to draw pay under the fourth pay period for the periods of June 1, 1942 to June 29, 1942, incl., and from August 27, 1942 to the present date.

Under the Uniform Act approved December 4, 1942, an officer paid under the third pay period is entitled to the allowance. However, an officer paid under the fourth pay period is not entitled to the allowance if entry on Active Duty was after June 1, 1942. Since Capt. Happ's entry on Active Duty the second time was subsequent to June 1, 1942, and was entitled to pay under the fourth pay period the question arises as to whether he is entitled to be paid the allowance by his entry for his first tour of Active Duty on April 14, 1942, at which time he was paid in the third pay period.

Capt. Happ was on Active Duty on the date of the passage of the Act of December 4, 1942.

The voucher referred to by you was not received with your letter. However, on the facts stated, the question will be considered.

The act of December 4, 1942, 56 Stat. 1039, Public Law 788, is as follows:

That the Act of May 14, 1940 (43 Stat. 212), the Act of March 9, 1942 (Public Law 492, Seventy-seventh Congress), and any provision of any other law authorizing the payment of a uniform allowance to any person upon being appointed a commissioned or warrant officer in any component of the Army of the United States, are hereby repealed, but any payments heretofore made pursuant thereto, if otherwise correct, are hereby validated.

SEC. 2. Except as otherwise provided in this Act, an allowance of $250 for uniforms and equipment is hereby authorized to be paid to the following personnel of the Army of the United States or any component thereof:

(a) Any person on active duty on April 3, 1939, or thereafter accepted for active duty, in the grade of second lieutenant, first lieutenant, or captain, and entitled to the pay of the first, second, or third pay periods on April 3, 1939, or at the time of such acceptance for active duty; and

(b) Any person on active duty on April 3, 1939, or thereafter accepted for active duty, in any temporary or permanent grade of warrant officer (including any person appointed flight officer), except that of a chief warrant officer entitled to receive the base pay and allowances provided for officers of the fourth pay period.

SEC. 3. (a) The uniform allowance authorized in section 2 hereof shall not be paid more than once to any person without regard to appointment in or promotion to a grade for which the allowance

(b) Any uniform allowance heretofore pa of May 14, 1940 (54 Stat. 212), the Act of Ma enty-seventh Congress), section 4 of the Act

Seventy-seventh Congress), or section 6 of the Act of July 8, 1942 (Public Law 658, Seventy-seventh Congress), to any person entitled to a uniform allowance under this Act, shall be deducted from the allowance payable under section 2 hereof and only the difference paid to the person entitled thereto. The certificates of officers or warrant officers, including flight officers, of the Army of the United States relating to facts regarding payments received under the Acts herein cited shall be accepted as supporting such facts as stated without the necessity of other supporting evidence.

(c) The uniform allowance authorized in section 2 hereof shall not be paid to any graduate of the United States Military Academy.

SEC. 4. The uniform allowance authorized by this Act shall be payable only to persons now serving on active duty in the Army of the United States or who hereafter serve on active duty therein at any time during the period of the wars in which the United States is now engaged and for six months thereafter.

Section 2 (a) of H. R. 7768, 77th Congress (which became Public Law 788), as originally introduced, provided for payment of the $250 uniform allowance (subject to the other conditions specified) to “any person on active duty on the date of approval of this Act, or thereafter accepted for active duty, in the grade of second lieutenant, first lieutenant, or captain, and entitled to the pay of the first, second, or third pay periods;

The above language was amended by the House Committee on Military Affairs so as to read as finally enacted as section 2 (a) of the act of December 4, 1942; and in explanation of this amendment it was stated in the report of that committee (see House Report No. 2639, 77th Congress, 2d Session):

Officers and warrant officers who on April 3, 1939, or at the time of entrance upon active duty under their commissions or warrants, were entitled to receive the pay and allowances of the fourth or higher pay period are excluded, because your committee believes that such persons suffer no undue financial hardship in being required to procure the necessary uniforms at their own expense. Although some persons now entitled to receive the pay of the fourth or higher pay period are entitled to the allowance authorized in the measure, your committee feels that this is just because it is believed that all persons who are not entitled to the pay of the fourth or higher pay period upon entrance upon active duty should be entitled to receive the allowance, and that subsequent promotion should not projudice that right. Moreover, many Reserve officers now serving in the grade of major or higher receive the allowances authorized under existing law, while other officers who entered upon active duty in a lower grade and who are now serving in a higher grade were not eligible to receive the allow

ances.

In the instant case it is stated that Captain Happ entered on active duty April 14, 1942, and that from that date until May 31, 1942, he was entitled to pay of the third period. It is further stated that the officer was on active duty on December 4, 1942, the date of approval of the said act.

Having been accepted for active duty subsequent to April 3, 1939, as a captain entitled to pay of the third period, the officer comes within the provisions of section 2 (a) of the act of December 4, 1942, and the fact that he was subsequently released and thereafter recalled to active duty while entitled to fourth period pay does not affect his rights to the uniform allowance.

On the facts stated in your letter, payment of the uniform allowance provided for under the act of December 4, 1942, on a duly executed voucher in favor of Captain Happ, is authorized, if otherwise correct.

(B-31488)

OVERTIME AND ADDITIONAL COMPENSATION UNDER ACT OF
DECEMBER 22, 1942-POSTAL EMPLOYEES

Neither the overtime compensation nor the additional compensation on a 10 percent basis authorized by the act of December 22, 1942, is to be regarded as a part of the "hourly pay per hour" on which is to be computed the 10 percent extra pay under the provisions of 39 U. S. Code 828 for night work of regular or substitute postal employees.

The additional compensation authorized under the provisions of 39 U. S. Code 58 to be paid fourth-class postmasters for "separating services" and "unusual conditions," in lieu of the allowance for clerk hire authorized under the provisions of 39 U. S. Code 82, is to be considered as compensation paid on "other than a time basis" within the meaning of the overtime and additional compensation act of December 22, 1942, and, as such, is subject to the 10 percent increase authorized thereby. Compensation in the form of special delivery fees paid to postmasters, substitute employees, rural carriers, or other postal employees for extra services as special delivery messengers is subject to the 10 percent increase authorized by the overtime and additional compensation act of December 22, 1942.

The additional compensation in the form of special delivery fees paid to postal employees for extra services as special delivery messengers and the employees' regular compensation should be kept separate and distinct for purposes of applying the formula for increasing compensation prescribed by the overtime and additional compensation act of December 22, 1942. While the rule in 39 U. S. Code 822, providing that compensation for a fraction of a month for employees "in the Postal Service" whose compensation is at an annual or monthly rate shall be computed on the basis of the actual number of days in the calendar month involved, remains applicable for purposes of computing a fractional month's regular or basic compensation, one day's increased compensation-either overtime or additional compensation on a 10 percent basis-authorized by the act of December 22, 1942, is required to be computed on the basis of 360 of a basic per annum salary. Increased compensation, either on an overtime basis or on a 10 percent basis, authorized by the act of December 22, 1942, is not payable to an extent that will increase an employee's total compensation, paid on a time basis, for any one day to more than 360 of the per annum rate of $5,000, that is, $208.33 for a semi-monthly pay period.

In applying the $5,000 salary limitation prescribed by the overtime and additional compensation act of December 22, 1942, to postal employees whose compensation is computed on a time basis, either for full or part-time service, no adjustment is authorized or required as of April 30, 1943 (the expiration date of the statute), or prior thereto, for such employees who receive an increase less than the rate of $5,000 per annum in one pay period, but whose increase would exceed a total of more than the rate of $5,000 per annum in another period but for said limitation. For the rule applicable to compensation paid on a fee basis, see 22 Comp. Gen. 720. Comptroller General Warren to the Postmaster General, February 11, 1943: I have your letter of February 2, 1943, as follows:

Since requesting decisions on certain features of S in my letter of January 1, 1943, additional questio require clarification. Decisions on the following qu coigms aptifedue got, norado