that division and the claim settled on its merits; and the rights of the officer as well as those of the Government will be fully protected. Otherwise than as herein indicated, no objection is made to the amendment of the instructions proposed.

DRILL PAY-SUPERNUMERARY

NONCOMMISSIONED OFFICERS

OF THE NATIONAL GUARD.

The failure to reduce a supernumerary master sergeant in the National Guard to the grade of private in accordance with instructions of the War Department does not entitle such noncommissioned officer to the pay of master sergeant after the date on which he became supernumerary, but if the total number of enlisted men in his company did not exceed the number lawfully prescribed for such companies of the National Guard he may be paid as a private for the drills attended.

Comptroller General McCarl to Maj. M. T. Legg, United States Army, July 22, 1922.

There was received June 28 your letter of May 8, 1922, requesting decision whether you are authorized to pay supplemental pay roll therewith transmitted of the Service Company, One hundred and fifth Infantry, New York National Guard, for the period July 1 to December 31, 1921, containing the claim of Master Sergeant Patrick J. Brennan, for attendance at 27 drills of the company.

It appears that under tables of organization for an Infantry service company four master sergeants are authorized; that upon receipt of the rolls of the company for the period in question the fact was disclosed that the company had had five master sergeants during the entire period; that the junior master sergeant, claimant in this case, was not paid with the balance of the company, and that the purpose of your submission is to determine his legal right to pay, either as a master sergeant or otherwise. This is a satisfactory explanation of the pay roll to authorize consideration of the individual matter presented. See decision of June 30, 1922 (10 MS., Comp. Gen., 2488).

Section 60 of the national defense act, 39 Stat., 197, as amended by section 36 of the act of June 4, 1920, 41 Stat., 780, provides:

Organization of National Guard units.-Except as otherwise specifically provided herein, the organization of the National Guard, including the composition of all units thereof, shall be the same as that which is or may hereafter be prescribed for the Regular Army, subject in time of peace to such general exceptions as may be authorized by the Secretary of War. And the President may prescribe the particular unit or units, as to branch or arm of service, to be maintained in each State, Territory, or the District of Columbia in order to secure a force which, when combined, shall form complete higher tactical units.

Until July 1, 1921, companies and corresponding units of the National Guard may be recognized at a minimum enlisted strength of fifty: Provided, That the National Guard of any State, Territory, and the District of Columbia may include such detachments or parts of units as may be necessary in order to form complete tactical units when combined with troops of other States.

In Captain Genaway's case (5 MS., Comp. Gen., 534), January 13, 1922, having before me Militia Bureau Circular Letter No. 18, dated March 17, 1921, it was said:

no general exception by the Secretary of War, applicable alike to all battalion headquarters companies, is shown, and no payment to the supernumerary officer is authorized.

The term "general exceptions" comprehends exceptions applicable to all units of a given character; as, for example, if infantry companies of the Regular Army have a complement of three commissioned officers, all infantry companies of the National Guard may be authorized to have a less or greater number. A direction to retain surplus officers in those units having surplus officers after reorganization is not a "general exception" modifying the organization of all units but is a special exception applicable only to such units as have surplus officers, and is not within the exception as to uniformity of organization of the National Guard with the organization of the Regular Army contained in the law.

The claim here considered is that of a noncommissioned officer-an enlisted man-and the rule is the same; there is no authority, in the absence of a general exception authorized by the Secretary of War, to pay more noncommissioned officers of a given grade in a service company of the National Guard than are authorized for such a company of the Regular Army. This seems to be recognized by the War Department, for in paragraph (b) of instructions of January 13, 1922 (Militia Bureau Circular Letter No. 5), it was stated:

(b) In case an organization has an excess of enlisted personnel, due to its having changed its character or branch of service, such excess can be maintained only in the grade of private, and new enlistments will not be permitted until the organization is brought within the prescrbed strength; however, men in the organization may be reenlisted upon expiration of current enlistments.

In this case the instructions of January 13, 1922, were not followed, and the supernumerary master sergeant was not reduced. If, however the total number of enlisted men in the Service Company, 105th Infantry, New York National Guard, during the semiannual period July 1 to December 31, 1921, did not exceed the number lawfully prescribed for service companies of the National Guard, and although Master Sergeant Brennan was not regraded as directed, there is no legal objection to paying him the pay of a private for the drills attended.

This is a case in which the failure of officers to carry out orders has resulted in apparent injury to an individual in no manner responsible for the officers' failure to act, but who nevertheless suffers for such failure. The hardship to an innocent individual does not, however, warrant this office in bending the construction of the law con

trary to its intent to save him from the effects of the officers' failure to carry out orders applicable to him.

You are not authorized to pay the roll as now presented.

INCREASE IN COMPENSATION PAID UNDER EMPLOYMENT

CONTRACT.

The compensation of an acting assistant dental surgeon in the Public Health Service, employed under contract, can not be increased retroactively to offset the failure to furnish him for the period with quarters, subsistence, and laundry in kind.

Decision by Comptroller General McCarl, July 24, 1922.

The Chief, Treasury Department Division, this office, submitted a memorandum decision dated May 1, 1922, as follows:

William M. Sweet, acting assistant dental surgeon in the Public Health Service at a salary of $1,560 per annum, was transferred from the Public Health Hospital at Greenville, S. C., to St. Elizabeth's Hospital, at Washington, D. C.

At the former place he received, in addition to his salary, quarters, subsistence, and laundry, in kind. At the latter place he could not be furnished with quarters, subsistence, and laundry in kind, so that his compensation was his salary only.

The Secretary of the Treasury, by a letter dated December 12, 1921, authorized an increase in salary of Dr. Sweet to $2,340 per annum, to be effective from October 25, 1921. The increase of $780 per annum or $65 per month appears to have been in lieu of quarters, subsistence, and laundry.

The right of the Secretary of the Treasury to make this retroactive increase in salary is questioned.

Prior to December 12, 1921, Dr. Sweet had been working under a contract of employment with the Government with pay at the rate of $1,560 per annum, and it would seem that the increase in pay would become effective only when a new contract of employment had been made by an offer by the Government and acceptance by the officer. The increase for the time prior to December 12, 1921, should therefore be disallowed. (24 Comp. Dec., 582 and 26 Id., 432.) The memorandum decision is approved.

DOUBLE COMPENSATION-MESSENGERS OF THE HOUSE OF

REPRESENTATIVES.

Messengers of the House of Representatives, whose salaries are fixed by law or regulation, are prohibited by sec. 1765, Revised Statutes, from receiving additional compensation for services as messengers or substitute messengers performed outside of their regular working hours.

Comptroller General McCarl to the Clerk of the House of Representatives, July 24, 1922.

I have your letter of July 11, 1922, as follows:

The act making appropriations for the legislative branch of the Government for the fiscal year ending June 30, 1923, and for other purposes, approved March 20, 1922, authorizes and provides for "the employment of substitute messengers at the rate not to exceed $100 per month each, $1,000," in the post office of the House of Representatives.

Regular messengers in the House post office are provided at the annual compensation of $1,200 each. These messengers work in relays commencing at about 4 o'clock a. m. until about 10 p. m. daily, in eight-hour shifts.

Query: Am I authorized to pay one or more of such regular messengers from the lump-sum appropriation above mentioned for services performed outside of their regular working hours?

Section 1765, Revised Statutes, prohibits payment to a person whose pay is fixed by law of extra allowance or compensation for any extra service whatever, and it has been uniformly held that this prohibition attaches to service rendered outside of office hours as well as to service within office hours. United States v. Woodwell, 214 U. S., 827.

The proposed payment would be unauthorized.

SUBSISTENCE OF CIVILIAN EMPLOYEES OF WAR DEPARTMENT TRAVELING ON GOVERNMENT TRANSPORT.

Civilian employees of the War Department traveling on a Government transport are not entitled under the regulations of that department to a per diem allowance in lieu of subsistence, but are limited to the actual cost of subsistence, being the proportionate cost of the mess borne by the employee, it being presumed that a mess so maintained on a Government vessel under the supervision of superior officers is adequate for subsistence purposes.

Decision by Comptroller General McCarl, July 25, 1922.

Peter L. Brown, Fontainebleau, France, has requested, June 22, 1922, review of settlement No. W-144483 of this office, dated June 6, 1922, whereby was disallowed his claim for per diem of $4 for period spent on U. S. S. Mars from Toulon Var, France, to the United States while acting as convoyer of remains of deceased soldiers. The settlement allowed him $16.40 reimbursement for money spent for meals on board the ship on basis of receipt signed by H. Stegner, caterer, chief petty officers' mess.

Claimant was employed as a convoyer in the Graves Registration Service of the Army and as such had the status of a civilian employee. Army Regulations, paragraph 733, as amended, provide— civilian employees not accompanying troops in the time of actual war, nor traveling on Army transports, may, when their orders so prescribe, be allowed flat per diem allowances not exceeding the following rates when traveling and when on duty for the first 30 days at places designated in their order for the performance of temporary duty:

$4, when in such status more than 18 hours in the day.

Travel orders under which this trip was performed provided relative to traveling expenses:

The Quartermaster Corps will furnish the necessary transportation and in lieu of subsistence will pay civilian employee Peter L. Brown flat per diem, while traveling by rail, while on temporary duty in Hoboken, New Jersey, under this order, in accordance with the provisions of existing Army Regulations.

Claimant bases his right to the per diem on statements that accommodations on the U. S. S. Mars were very inadequate and not conducive to a comfortable journey. He complains of the quality and quantity of the food, necessitating purchase of additional food, the crowded condition of the ship, and the sanitation.

His right to a per diem in lieu of subsistence must be based on his travel orders and applicable Army regulations. Those regulations expressly prohibit payment of a per diem to employees traveling on Army transports. The U. S. S. Mars is a naval collier, used in this instance to transport remains of deceased soldiers to the United States, and as such had the status of an Army transport within the meaning of the regulation. Furthermore, the regulations allow per diem only when travel orders so provide. The time to be consumed in sea travel was omitted from the period for which a per diem was authorized.

As to claimant's complaints regarding accommodations, the conditions alleged constitute a matter for administrative consideration. Claimant was furnished transportation on the ship and with it subsistence, consisting of meals with the chief petty officers' mess at the rate of 82 cents per day, a total of $16.40, amount of settlement in his favor.

Although the chief petty officers' mess is in a measure controlled by the men, regulations provide for strict supervision by superior officers both as to quality and quantity of the food served. It must be presumed that meals furnished on Government vessels are adequate, and complaints relative thereto may not be considered in connection with a claim for reimbursement of subsistence expenses. Upon review of the matter the settlement is sustained.

ALLOWANCES FOR RENTAL OF QUARTERS-ARMY OFFICERS The allowances for rental of quarters under section 6 of the act of June 10, 1922, 42 Stat., 628, for officers maintaining dependents or officers without dependents, being in addition to the pay of the officers, are not payable when the officers are in a nonpay status, even though they have dependents not occupying public quarters, nor while public quarters are available and not occupied, nor while public quarters of less than the authorized number are furnished and occupied by the officer, his dependents being maintained elsewhere.

The quarters furnished an officer without dependents, or an officer and his dependents, while traveling on a commercial liner and paid for by the Government are public quarters within the meaning of section 6, act of June 10, 1922, 42 Stat., 628, and preclude the payment to the officer of the cash allowance for rental of quarters during the period of such travel. Comptroller General McCarl to the Secretary of War, July 25, 1922.

I have your letter of June 22, 1922, requesting decision on specific questions lettered (a) to (e) arising under section 6 of the act of June 10, 1922, 42 Stat., 628. Sections 6, 15, and 21 (in part) of the act provide:

SEC. 6. That each commissioned officer on the active list or on active duty below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this act, if public quarters are not available, shall be entitled at all times, in addition to his pay, to a money allowance for rental of quarters, the amount of such allowance to be determined by the rate for one

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