resolution of December 22, 1942, notwithstanding that the express terms of the exception were limited to employees whose wages were fixed and adjusted on a daily or hourly basis.

However, unlike the earlier law, the War Overtime Pay Act of 1943 contains the following express provision:

That this Act shall apply to all civilian officers and employees (including officers and employees whose wages are fixed on a monthly or yearly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose, except those in or under the Government Printing Office or the Tennessee Valley Authority) in or under the United States Government [Italics supplied.]

*

*

Apparently that change in the law was made to overcome the rule previously stated in the above-cited decision so far as concerns employees whose wages are fixed and adjusted on a monthly or yearly basis other than under the Government Printing Office or the Tennessee Valley Authority. In that connection, see decision of July 23, 1943, B-35706, to the Secretary of War, copy enclosed. With the understanding that there are no "native wage rates" here involved (see exception (f)), none of the exceptions (a) to (h), appearing in section 1 of the War Overtime Pay Act of 1943, applies to employees of The Alaska Railroad, except (e) which appeared in the earlier law of December 22, 1942, also, and has been quoted and considered above.

As the Congress apparently gave full consideration in the light of the decision of this office to the matter of granting wartime additional compensation on the basis of an overtime formula prescribed by statute, rather than to permit wage boards or similar administrative authority to continue to fix and adjust the rates of overtime compensation to be paid to employees whose wages are fixed on a monthly or yearly basis and adjusted from time to time in accordance with prevailing rates by wage boards, or a similar administrative authority serving the same purpose, and expressly provided that the statutory formula should apply to such employees except those under the Government Printing Office and the Tennessee Valley Authority, I have no alternative but to conclude that employees of The Alaska Railroad whose wages are fixed and adjusted on a monthly or yearly basis come within the purview of the War Overtime Pay Act of 1943 effective on and after May 1, 1943.

However, the facts presented warrant the conclusion that employees of The Alaska Railroad whose wages are fixed and adjusted on a per diem, per hour, or piece work basis in accordance with the administrative procedure stated in your letter, properly may be regarded as having their wages fixed and adjusted by an administrative authority serving the same purpose as a wage board thereby bringing them within the purview of exception (e) of the War Overtime Pay

Act of 1943. Hence, as to employees of that class, they are precluded from receiving the overtime benefits of said statute.

Under the rule stated in 22 Comp. Gen. 596, all of the employees of The Alaska Railroad may be regarded as having been excluded from the benefits of the joint resolution of December 22, 1942, effective over the period December 1, 1942, through April 30, 1943.

(B-35582)

PAY-NAVAL PERSONNEL TEMPORARILY APPOINTED TO HIGHER RANK AND SUBSEQUENTLY RETIRED FOR PHYSICAL DISABILITY INCURRED PRIOR TO PROMOTION; RECALL TO ACTIVE DUTY

An officer of the Regular Navy who was temporarily appointed to a higher rank under authority of the act of July 24, 1941, and subsequently retired under the provisions of 34 U. S. Code 389 and 417 for physical disability incident to the service incurred prior to the temporary appointment, is not entitled to retired pay based on the pay of his temporary rank authorized under section 8 (a) of the said 1941 act for officers who incur physical disability while serving under temporary appointments, but, rather, upon retirement reverts to his permanent grade and rank and is entitled to retired pay prescribed for that rank, and, when on active duty subsequent to retirement, to the pay and allowances of his permanent grade and rank. 19 Comp. Gen. 597, distinguished.

Comptroller General Warren to the Secretary of the Navy, August 23, 1943: There has been considered your letter of July 6, 1943, with enclosures, requesting decision as to the rate of retired pay to which Lieutenant Tully T. Blalock, Medical Corps, U. S. Navy, Retired, is entitled for the period during which he was retired from active duty, and, further, as to the rate of pay and allowances to which he now is entitled while serving on active duty.

It appears that on January 11, 1940, Lieutenant Blalock accepted an appointment as an assistant surgeon, with the rank of lieutenant (junior grade), in the Naval Reserve and reported for active duty on July 1, 1940. On October 25, 1940, he accepted an appointment— same grade and rank-in the Regular Navy and on February 16, 1942, under the provisions of the act of July 24, 1941, 55 Stat. 603, he was temporarily appointed a passed assistant surgeon, with the rank of lieutenant. Thereafter, in accordance with the findings of a Naval Retiring Board, he was retired on January 1, 1943, because of physical incapacity (ulcers of the duodenum). It appears that the said Naval Retiring Board made a specific finding that although the officer's physical disability was incident to the service, it existed prior to the date of his temporary appointment as lieutenant referred to above.

Lieutenant Blalock's retirement was under the provisions of sections 389 and 417, Title 34, U. S. Code (Secs. 1457 and 1453, Revised Statutes), which provide, respectively, as follows:

SEC. 389. Officers retired from active service shall be placed on the retired list of officers of the grades to which they belonged, respectively, at the time of their retirement, and continue to be borne on the Navy Register.

* *

SEC. 417. When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of the service, such officer shall, if said decision is approved by the President, be retired from active service with retired pay.

In construing a similar statute governing the retirement of officers of the Army and of the Marine Corps (section 1254, Revised Statutes), it was held that even though the rank or grade in which the officer was serving at the time of retirement was limited in duration such officer was entitled to be placed on the retired list in that rank or grade, it not being material that had he not been so retired he eventually would have reverted by operation of law to his lower permanent rank on the active list. See Remey v. United States, 33 C. Cls. 218; 27 Comp. Dec. 227; and 19 Comp. Gen. 597. None of those cases involved the retirement of a permanent officer temporarily promoted who was physically disabled at the time of the temporary promotion. Furthermore, that such principle, even if otherwise applicable, was not intended to be applied to temporary appointments under the said act of July 24, 1941, is evident from the fact that section 8 (a) of such act, 55 Stat 604, specifically restricts retirement in the higher rank, for physical disability, of officers on the active list serving under a temporary appointment in the higher rank, to those who incur physical disability while serving in such higher rank. The said section 8 (a) provides:

An officer * of the active list of the Regular Navy or Marine Corps, *** who incurs physical disability while serving under a temporary appointment in a higher rank, shall be retired in such higher rank with retired pay at the rate of 75 per centum of the active-duty pay to which he was entitled while serving in that rank. [Italics supplied.]

The obvious purport of said section is, of course, that one who is retired, while serving under a temporary appointment, for a physical disability incurred prior to such service, is not entitled to retirement at such higher rank or to retired pay based on such rank.

Since Lieutenant Blalock's disability was not incurred while he was serving under a temporary appointment but, in fact, existed prior to his being so temporarily appointed, it follows that he is not entitled to the benefits conferred by the above-quoted provisions of section 8 (a) of the act of July 24, 1941.

Construing section 389, Title 34, U. S. Code, in the light of section 8 (a), supra, it must be regarded that, at the time of Lieutenant Blalock's retirement, his temporary appointment automatically terminated and he reverted to his permanent status on the active list. In other words, at the time of his retirement he is considered to have held the grade of assistant surgeon and the rank of lieutenant (junior grade) and to be entitled to receive the retired pay, and-when on active duty subsequent to retirement-the active duty pay and allowances, prescribed for that grade and rank.

(B-32761)

RENTAL AND SUBSISTENCE ALLOWANCES-DIVORCE AND
REMARRIAGE WITHIN PROHIBITED PERIOD

In view of the laws of Virginia, which prohibit remarriage to another within six months after divorce and provide that the marriage shall not be deemed dissolved as respects a subsequent marriage within the six-month period, an Army officer who was divorced in Virginia and remarried in another jurisdiction within the six-month period may not be paid increased rental and subsistence allowances, authorized under the Pay Readjustment Act of 1942 on account of a lawful wife, on the basis of the second marriage, in the absence of a judicial determination of the validity of that marriage or a showing of a ceremonial or valid common-law marriage after the expiration of the six-month period. Insofar as 21 Comp. Gen. 1, is inconsistent herewith, it no longer will be followed.

Comptroller General Warren to Lt. Col. Carl J. Melnick, U. S. Army, August 24, 1943:

Consideration has been given to your letter of February 16, 1943, requesting decision whether you are authorized to pay a voucher submitted therewith, stated in favor of First Lieutenant John H. Hinkle, FA 310 FA (ORC) O-314499, in the amount of $247.80 for subsistence and rental allowances for the period from November 14, 1942, to January 31, 1943.

You state:

The question at issue in this case is whether the claimant acquired a dependent as outlined in Section 4, Act of Congress (Public Law 607-77th Cong.) on November 14, 1942, in view of the prohibitions contained in the penultimate paragraph of the decree of divorce.

With your submission is a certified copy of a decree of divorce entered in the Circuit Court of Chesterfield County, State of Virginia, on November 6, 1942, in the cause of Esther W. Hinkle, plaintiff v. John Homer Hinkle, Jr., defendant. The divorce decree recited among the jurisdictional facts that the defendant had been domiciled in Chesterfield County, Virginia, and that the plaintiff likewise was domiciled in Chesterfield County, and had been a resident thereof for more than one year next preceding the commencement of the divorce suit. Also, it set forth that the defendant was a member of the armed forces of the United States; was proceeded against by process of personal service; and that he entered his general appearance in the suit "waiving any rights which he might have under the so-called Soldiers and Sailors Relief Act." The decree provided in relevant part as follows:

Now, THEREFORE, the Court doth adjudge, order and decree that the plaintiff, Esther W. Hinkle, be and she is hereby awarded a divorce from the bond of matrimony from the defendant, John Homer Hinkle, Jr., as prayed for in the Amended and Supplemental Bill of Complaint filed by the plaintiff, and that the marriage between the plaintiff and defendant be, and the same is hereby, dissolved in the manner allowed by law.

It is further adjudged, ordered and decreed as provided by Section 5113 of the Code of Virginia that neither of the said parties hereto shall marry again within six (6) months from the entry of this decree.

Nothing further appearing to be done in this cause, it is ordered that the same be removed from the docket and the papers thereof sealed and filed among the ended causes of this Court.

On the face of the voucher (War Department Form No. 336) appears a typewritten statement as follows:

Va.

Divorced Nov. 6, 1942 in Va. fr Esther W. Hinkle, 4 Cherokee Rd., Richmond, (Remarried Nov. 14, 1942 to Mary L. Hinkle, 212 N. Palmetto, Gainesville, (Officer's legal marriage status in question).

Fla.

Sections 5 and 6 of the Pay Readjustment Act of June 16, 1942, 56 Stat. 359, 361, authorize the payment of certain rental and subsistence allowances to officers in the armed forces on account of dependents as defined in section 4 of the act, and since section 4 expressly designates a "lawful wife" as such a dependent, none other than a lawful wife meets the requirements of the statute in that respect.

The lawfulness of a marriage depends primarily upon the capacity and consent of the parties to contract a valid marriage, and their compliance with the legal formalities of the jurisdiction where the marriage is undertaken. "The two essentials of a valid marriage are capacity and consent", Voorhees v. Voorhees' Executor (N. J. E.), 19 Atl. 172, 173. “A simple marriage ceremony will not make a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so," Brokeshoulder v. Brokeshoulder (Okla.) 34 A. L. R. 441, 453, quoting. That is to say that where parties in good faith enter into an otherwise valid contract of marriage and there is some immaterial failure or flaw in strict compliance with legal formalities or statutory requirements for the celebration of marriage which does not go to the reality of their consent or the fact of their capacity, such failure or flaw will not necessarily vitiate the contract. But if, at the time the marriage is undertaken, there exists any impediment which precludes either or both of the parties from contracting a legal marriage, mere compliance with prescribed ceremonies and legal formalities will not avail to accomplish the purpose, and no valid marriage ensues. A mere subsequent marriage does not amount to a divorce, and will not prevail over a former one. Smith v. Fuller (Iowa) 16 L. R. A. (NS) 98, 109; Brokeshoulder v. Brokeshoulder, supra; Wilson v. Cook (Ill.) 100 N. E. 222; Atkeson v. Sovereign Camp, W. O. W. (Okla.), 216 Pac. 467.

In the last cited case the court said:

At common law and under our modern statutes, the relation of marriage was and has always been considered as a civil contract, requiring for its consummation, among others, the legal capacity of the persons to contract. It is likewise as well settled that until parties are finally and absolutely