sum than the statute provides, or that such official can make a binding contract to that effect. The doctrine of waiver has no application to any such case, and cannot be invoked to aid the respondent.

This general principle of law has been applied by this office under the 1894 act, as amended, in a number of cases as a basis for the holding that retired Army and Navy officers receiving retired pay in excess of $2,500 per annum may not overcome the prohibition of the statute by retaining their retired office and waiving or relinquishing their retired pay during occupancy of the civilian position. 1 Comp. Gen. 219; id. 499; id. 571; id. 700; 4 id. 485; 10 id. 85; decision of June 25, 1928, A-23363; and decision of August 7, 1930, A-32876. In the last cited decision, rendered upon the request of the Attorney General, involving the case of a retired lieutenant of the Marine Corps, whom the Attorney General desired to appoint to the position of Assistant Superintendent of the United States Industrial Reformatory at Chillicothe, Ohio, it was stated, after quoting the act of 1894, as follows:

It not appearing there is any law specially authorizing the appointment of First Lieutenant Riekers to the office of Assistant Superintendent of the U. S. Industrial Reformatory at Chillicothe, and the manner of his retirement and/or of his proposed appointment not bringing him within the class excepted from the prohibition contained in the cited statute, his appointment to that office, or the appointment thereto of any other officer similarly situated, seems clearly prohibited, irrespective of whether he would be willing to waive his retirement pay during the period of incumbency of the office of Assistant Superintendent of the Industrial Reformatory. 29 Op. Atty. Gen. 397; id. 503; 30 id. 298; 1 Comp. Gen. 219; id. 571. A waiver in the form suggested, moreover, as was indicated in my letter to your predecessor of October 17, 1921, 1 Comp. Gen. 219, would not be valid, the execution of such a waiver of official salary fixed by statute having been regarded by the courts as contrary to public policy and ineffectual to estop the officer involved from thereafter claiming his statutory salary, notwithstanding the waiver. Glavey v. United States, 182 U. S. 595, 610, 45 L. Ed. 1247; United States v. Andrews, 240 U. S. 93, 94, 95, 96, 60 L. Ed. 543, 544; United States v. Bancroft, 260 U. S. 706, 67 L. Ed. 473; Miller v. United States, 103 Fed. 413, 415; 11 Comp. Dec. 422; Comp. Gen. Dec. A-27110, May 18, 1929.

With reference to the opinion of the Attorney General of May 23, 1925, 34 Op. Atty. Gen. 490, cited by you, it need only be said at this time that it is not in point here. The Chief of the Bureau of Efficiency did not propose to, and did not, waive or relinquish the salary fixed by or pursuant to statute for his office to receive a salary as a member of the Board of Actuaries, there being involved merely the assignment to him of the additional duties without additional compensation. Furthermore, the latter position was part time only and there was no specific salary or compensation fixed therefor by or pursuant to statute. In this connection, there is to be noted the following quotation from the Attorney General's opinion in that case page 496:

In addition, no specific salary or compensation is fixed by Congress for a member of the Board of Actuaries. The Commissioner of Pensions is authorized by the act to fix the compensation in accordance with the services rendered. If a member of the board, although appointed as such, renders no service, he should receive no compensation. If an officer already in the service of the Government is designated to perform the duties of a member of the Board of Actuaries without compensation, in addition to that already being received

by him, and he accepts such designation, no additional compensation for such services can be paid him. This case falls clearly within the decision of the Attorney General in 30 Op. 129.

Neither is 13 Comp. Gen. 448, cited by you, in point. There was considered in that decision the case of Brig. Gen. Pelham D. Glassford, United States Army, retired, who was appointed by the Secretary of Labor to the position of labor conciliator, a temporary, part-time position, which does not constitute an "office to which compensation is attached", within the meaning of the 1894 statute, as amended. See the decision of July 25, 1934, A-56610, 14 Comp. Gen. 68, cited in the decision of August 29, 1934, of which consideration is now requested, involving the case of Admiral Henry A. Wiley, United States Navy, retired, appointed as a member of the National Steel Labor Relations Board, a temporary position, and to the decisions and the opinions of the Attorney General therein cited.

Section 212 of the Economy Act was an economy measure intended to restrict or further limit dual payments of compensation under prior statutes, and was not intended to, and does not, render inoperative any portion of the act of 1894, as amended. At the time said section was enacted, officers of the Army and Navy retired for disability, could be appointed to and hold and receive the compensation of any civilian office and still receive their retired pay regardless of the amount thereof and such officers retired for any cause, if elected to public office or appointed by the President by and with the advice and consent of the Senate could receive both the retired pay and the salary of the office to which so elected or appointed regardless of the amount thereof. The plain purpose of said section 212 was to limit the amount of compensation which could be received in such cases, not to remove the restrictions imposed by the act of 1894, as amended. You are advised, therefore, that the decision of August 29, 1934, 14 Comp. Gen. 179 must be and is affirmed.

(A-55626)

TRANSPORTATION-LAND-GRANT-CIVILIAN CONSERVATION CORPS

The transportation of officers and enlisted men of the United States Army traveling in connection with their detail to duties with Civilian Conservation Corps camps constitutes transportation of troops of the United States within the purview of the land-grant laws.

Comptroller General McCarl to the Chairman, Western Military Bureau, October 9, 1934:

There has been received your letter of August 16, 1934, requesting reconsideration of the decision of this office of July 12, 1934, in which it was held that the transportation furnished officers and enlisted men of the United States Army traveling on duty having connection with the Civilian Conservation Corps is subject to land-grant reductions.

You state it is obvious that a project providing for employing citizens of the United States who are unemployed is in no sense a military project and cite the decision of this office August 30, 1933, A-50660 to that effect. With respect to this argument, it may be stated that this office has never held or contended that the enrolled members of the Civilian Conservation Corps were engaged in military duty or that their transportation was subject to land-grant reduction. But that fact has no bearing upon the duties performed by officers and enlisted men of the Army in connection with such activities. You further urge that the decision of the United States Supreme Court in Southern Pacific Co. v. United States, 285 U. S. 240, and the prior decision, United States v. Union Pacific Co., 249 U. S. 354, support your contention that such officers and enlisted men do not travel as troops of the United States within the meaning of the land-grant laws. The two decisions cited base their respective conclusions upon the definition of "troops" as "soldiers collectivelya body of soldiers." Upon that definition it was held in the earlier case that accepted or rejected applicants for enlistment were not troops as they had never been formally accepted or incorporated into the Army organization; that discharged or retired soldiers were not troops being no part of the Army; that a soldier on furlough was not traveling for any military duty, but for his own personal convenience. In the later decision it was held that officers of the Engineer Corps engaged on river and harbor work were not engaged upon a military duty as the work so performed was primarily for the benefit of commerce and navigation. A careful analysis of the two decisions of the United States Supreme Court does not warrant any change in the conclusions of this office as to the status of officers and enlisted men on duty in connection with the Civilian Conservation Corps. Their duties and functions are minutely prescribed in the regulations issued by the War Department, September 30, 1933, pertinent portions of which are as follows:

3. The War Department's function.-The War Department's function is the acceptance of the unemployed men selected by the Department of Labor or Veterans' Administration; their assignment and transportation to reconditioning camps of the Army; their enrollment; their physical conditioning for their future work; their transportation to work locations, either as organized units or as groups of casuals; construction, command administration, discipline, supply, sanitation, medical care, hospitalization, and welfare of the Civilian Conservation Corps work camps; furnishing work details from the Civilian Conservation Corps to the representative of the Department supervising the assigned task. Demobilization is a responsibility of the War Department and will be accomplished in accordance with the regulations issued at the proper time.

4. The corps area commander's function.-a. The corps area commander will execute the War Department's role within his corps area. He will be responsible for all matters incident to command, discipline, and demobilization of units, and the construction of work camps and their supply, administration, sanitation, medical care, hospitalization, and welfare. Actual work projects, their technical planning and execution, will be under the immediate control, supervision and direction of technical representatives from State or Federal departments.

17. Personnel-a. Regular Army.-The use of such personnel of the Regular Army as may be necessary for the efficient handling of the Civilian Conservation Corps is authorized. Within the limitation of available Civilian Conservation Corps funds, a corps area commander may order Regular Army personnel under his command to any locality within the territorial limits of his corps area, such travel to be at the expense of Civilian Conservation Corps funds. (See par. 37.) Personnel at stations exempt from corps area control will not be ordered away from their stations without approval of the War Department, except that personnel of troop units of the arms at such stations may be ordered away without War Department approval, provided the personnel of such units has not been specifically exempted. The permanent station of Regular Army officers will not be changed without authority of the War Department.

b. Reserve. (1) To supplement Regular Army officers on duty with the Civilian Conservation Corps, the President has approved the use of Reserve officers on active duty in such numbers and grades as are authorized elsewhere in these regulations or as may be authorized from time to time by the War Department. These Reserve officers may be from line or staff arms or services as desired by the corps area commanders. Arm or service assignment officers may be utilized provided their respective chiefs are promptly notified.

(2) Orders issued placing Reserve officer on active duty with the Civilian Conservation Corps will include the following: "Captain (or Lieutenant).

(Name)

O. R. C., by direction of the President and to carry out the provisions of the act of March 31, 1933 (Public No. 5, 73d Cong.), is, with his consent, ordered to active duty for a period of - - - - - months, beginning..

(Date)

etc. "

(3) Periods of active duty of Reserve officers will be, normally, for six months, but corps area commanders, in the interest of greater diffusion of training, may prescribe a less time, provided that no period shall be less than sixty days.

(4) Orders in the case of Reserve officers of staff services, other than those of the Medical Department and chaplains, will also include a proviso authorizing them "by direction of the President" to command line troops on duty with the Civilian Conservation Corps. (See par. 3, AR 600-20.)

37 (e) Travel of officers.-(1) Officers of the Regular Army, Officers' Reserve Corps on active duty, and Naval Service assigned to Civilian Conservation Corps work, traveling on duty in connection therewith are authorized payments at the same rates and under the same regulations as authorized by law for similar travel on duty with the Regular Army.

(2) Officers mentioned in (1) above, traveling in command of, or attached to, a unit of the Civilian Conservation Corps, consisting of 10 or more members or enlisted men, will be considered as in a travel-with-troops status and are not entitled to per diem or mileage.

(3) Officers mentioned in (1) above in command of, or attached to a unit of the Civilian Conservation Corps for duty will not be entitled to per diem while on duty at work camps and orders will not authorize per diem.

(4) Mileage under the same laws and regulations as are applicable to travel of Regular Army officers on duty with the Regular Army will be authorized to the above-mentioned officers.

It is evident from the regulations that the officers and enlisted men while assigned to duty in connection with the Civilian Conservation Corps are performing their usual military functions, which functions are carefully distinguished and separate from the actual work by the members of the camps. You will note that Reserve officers when so engaged are ordered to "active duty" and "to command line troops on duty with the Civilian Conservation Corps", and paragraph 17 (b) (3), that "in the interest of greater diffusion of training" of Reserve officers, corps area commanders may reduce the period of active duty of less than 6 months.

It is also apparent that you have misapprehended the basis for the holding of the United States Supreme Court in the Southern

Pacific case, and the application of sections 1222 and 1224, Revised Statutes, in that and in the present case. The prohibition against employing of military personnel upon civil duty is, of course, subject to statutory authority for their employment otherwise. The employment of the Engineer Corps upon river and harbor work and upon the California debris work was specifically authorized by section 11 of the act of June 17, 1910, 36 Stat. 538, and the California Debris Act, which in effect recognizes the civil character of such work. In the present case the statutory authority is the Emergency Conservation Act of March 31, 1933, 48 Stat. 22. It does not require or authorize any change in the nature of the duties to be performed by military personnel, but authorizes the President, under such rules and regulations as he may prescribe, to utilize "existing departments and agencies." In utilizing the military personnel, the President by regulations has allotted to that service only their usual military duties, as above indicated.

The most careful consideration has been given to the arguments advanced in your present submission, but there is no warrant for a change in the conclusion reached in my former decision of July 12, 1934, that officers and enlisted men of the Army or Navy assigned to duty in connection with the Civilian Conservation Corps are troops of the United States and operating as such. Upon reconsideration the decision must be and is adhered to.

(A-57224)

POSTAL SERVICE-AUTOMATIC AND ADMINISTRATIVE PROMOTIONS OF POST-OFFICE INSPECTORS AND CLERKS

Promotions through the first five grades of post-office inspectors and clerks at division headquarters of post-office inspectors prescribed by the act of February 28, 1925, 43 Stat. 1055, are properly termed "automatic", but promotions from grade 5 to grade 6 in either instance are dependent upon administrative selection and must be classed as administrative promotions within the meaning of section 7 of the act of March 3, 1933, 47 Stat. 1515, as amended by section 24 of the act of March 28, 1934, 48 Stat. 522, and the decisions of June 7, 1934, 13 Comp. Gen. 419, and July 1, 1934, 14 Comp. Gen. 1.

Comptroller General McCarl to the Postmaster General, October 9, 1934:

Consideration has been given to your letter of September 27, 1934, as follows:

The receipt is acknowledged of your letter of September 17, 1934, A-57224, relative to the application of the term "force" as used in section 2 of the act of Feb. 28, 1925, 43 Stat. 1055.

Your letter indicates that this term has relation only to clerks who are within "the six grades to which automatic promotion may be made after a year's satisfactory service in the lower grade.'

The first paragraph of section 2 of the statute cited defines the salary grades and conditions of promotion of post-office inspectors in terms practically identical with the terms used in those portions of the section quoted in your letter.