You are therefore advised that payment may now be made for the period August 23 to 25, 1915, for which leave without pay had been previously granted.

OVERTIME PAY, NAVY YARDS.

With respect to the allowance of regular pay and 50 per cent additional thereon for overtime work on account of extraordinary emergencies in the case of employees of navy yards and stations paid on the basis of eight hours' work per day, it is immaterial that such employees are required under their contract of employment to work seven days per week.

Decision by Comptroller Warwick, August 21, 1916:

George P. Dyer, paymaster, United States Navy, applied August 14, 1916, for revision of the action of the Auditor for the Navy Department in disallowing, per settlement No. 8113-D, July 26, 1916, the following items:

"Fifty per cent (50%) additional in each of the following cases is disallowed July 26. 1916, in accordance with par. 6, Naval Instructions, art. 382. These men are 7-day employees:

66

'Mfg. Roll, Apr. 1-8, No. 6470, H. S. Nelson, fireman, 4/8 days, at $1.28 $0. 64

Mfg. Roll, Apr. 24–30, No. 6468, John L. Sink, fire., 1-1/8 days, at $1.28 1.44

Mfg. Roll, Apr. 24-30, No. 6450, Jetta Ernest, E. T. S., 1-1/8 days, at $1.68.

"Mfg. Roll, May 24-31, No. 6470, H. S. Nelson, fireman, 6/8 days, at $1.28_

1. 89

0.96"

With reference to overtime performed by the above employees, the industrial manager of the Navy Yard at Norfolk, Va., states:

"1. The men mentioned in paragraph two of reference (a) are regular 8-hour per diem men, although working in shifts of eight hours each, seven days a week. The overtime cards (S. & A. Form No. 206-K) show the following notations:

"H. S. Nelson, 4 hours, April 8, 1915, firing boilers in power plant. Sickness of regular fireman rendered overtime necessary. "Jetta Ernest, 6 hours, April 27; 3 hours, April 28, 1915, making necessary repairs to 3,000 cubic feet compressor engine in power plant.

"John L. Sink, same as above case.

"H. S. Nelson, 6 hours, May 29, 1915, firing boilers in power plant. "2. As these men were employed in work in excess of eight hours a day, owing to 'extraordinary emergencies' and not in the course of ordinary employment, their pay had been considered as coming within the provisions of articles 381 (2) and 382 (2), Naval Instructions."

These men are required to work eight hours per day, seven days per week, and, consequently, would not be entitled to any extra compensation above their regular wages when working eight hours on Sunday. However, it would appear that they are entitled to 50 per cent additional compensation for any time they are required to

work in excess of eight hours on any day of the week, including Sunday, under article 381 (2) and article 382 (2) Naval Instructions, 1913, which provide:

"381 (2) Under the provisions of law set forth in the preceding paragraph, the working hours of laborers and mechanics at navy yards and naval stations can be extended over eight hours a day only in the case of an extraordinary emergency."

The law referred to in this paragraph is the act of August 1, 1892 (27 Stat., 310), which limits the hours of employment to eight hours per day.

"382 (2) For work in excess of eight hours per day performed by reason of extraordinary emergency, the ordinary rate of pay, with fifty per centum additional, shall be allowed."

The auditor contends that this regulation does not apply by reason of article 382 (6), which provides:

"The foregoing provisions relate solely to laborers, workmen, and mechanics whose compensation has been fixed on the basis of eight hours per day, and have no application to employees whose ordinary duties require their presence before or after regular working hours, at night, on Sundays, or on legal holidays, and whose compensation has been fixed with reference to the irregular and unusual character of their employment."

The prohibition in this instruction does not apply to the above men, as their compensation is based upon eight hours' work per day, although they may have to work that eight hours at night or on Sunday. As these men were required to work in excess of eight hours per day "owing to extraordinary emergencies" they are entitled to the additional overtime pay provided for in article 382 (2),

supra.

The action of the auditor is reversed,

PAY OF RECRUITS, ORGANIZED MILITIA OF THE DISTRICT OF COLUMBIA. A recruit for the Organized Militia of the District of Columbia who was enlisted subsequently to June 18, 1916, the date of the order of the President calling out the Organized Militia for the national defense, is entitled, upon muster into the service of the United States, to pay from the date of his enlistment.

Comptroller Warwick to the Secretary of War, August 22, 1916:

By your reference of the 16th instant, my decision is requested whether recruits for the Organized Militia of the District of Columbia who enlisted subsequent to June 18, 1916, in organizations called into service of the United States under the President's call of

that date, are entitled to pay for time between the date of their enlistment and the date of their muster into the service.

The date from which an enlisted man of the Army is entitled to be paid is the date of his entering into the contract of enlistment proper and taking the oath of allegiance except where the facts show affirmatively that he actually entered on duty with the knowledge and consent of the proper military authorities and was held under military control from a prior date. (See 19 Comp. Dec., 137, 334, and 367.)

The form of enlistment contract, which also contains the oath of allegiance, is as follows:

แ "THE UNITED STATES OF AMERICA.

"STATE OF VIRGINIA,

"Military Post, Fort Myer, ss.

enlisted this

"I do hereby acknowledge to have voluntarily day of 1916, as a soldier in the National Guard of the United States and of the District of Columbia, for the period of 3 years in the service and 3 years in the reserve, under the conditions prescribed by law unless sooner discharged by proper authority. And I do solemnly swear that I will bear true faith and allegiance to the United States of America and that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States, and of the officers appointed over me according to law and the Rules and Articles of War. This oath is subscribed to with the understanding that credit will be given in the execution of this contract for the period which I have already served under my current enlistment for three years in the Organized Militia of the District of Columbia, dated

The date of the execution of this paper is the date from which the man's status changes from that of a civilian to that of a soldier, and it is the date from which he is entitled to be paid. This enlistment renders the man subject to Federal military service without any additional call of the President. It is clear, I think, that those men who are accepted by muster in are entitled to pay from the date of their enlistment.

Upon the facts appearing, I am of opinion that the recruits for the Organized Militia of the District of Columbia who enlisted subsequent to June 18, 1916, are entitled to pay from date of enlistment.

DISCOUNTS ON PURCHASES.

In general the deduction of discounts under agreements by the Government to purchase supplies is authorized only when the vendor has made an express offer of such discounts, and a mere statement as to discounts, shown on the printed commercial bill of the vendor submitted for payment, is not generally to be regarded as such an express offer.

Comptroller Warwick to the Secretary of the Interior, August 22, 1916:

I have your letter of August 16, 1916, requesting to be advised the procedure with respect to taking discounts in making payments under agreements for purchase of supplies.

You refer to a letter addressed to the Washington representative of the Alaskan Engineering Commission, by its special disbursing agent at Seattle, Wash., from which you quote as follows:

"I frequently have vouchers for supplies purchased with 'Proposal and acceptance attached,' accompanied by a commercial bill or invoice. The prices submitted and accepted are stated upon the voucher. On the commercial invoice there will be stated discount if paid in ten days. In several instances I have deducted discounts on the above authority although it was not specifically stated on the face of the signed voucher. Some have accepted the checks, and some have returned them claiming the full amount stated in the proposal and acceptance also on the face of the voucher. Will you please ascertain if the auditor expects me to take advantage of discounts when the only authority we have is the printed commercial invoice?

"Of course we have quite a few where the discount is stated on the signed voucher in the left-hand corner, also when a letter accompanies voucher stating that discount would be allowed, we have endeavored to take advantage of all such cases, and also when discount was stated on the commercial invoice, but we have had several objections, and it would be appreciated very much if you will take this up with the auditor and ascertain his decision in the matter."

The terms of the agreement, under the proposal and acceptance, are not stated. It is presumed the prices to be paid thereunder are obtained through competition, where that is practicable, and thus indicate the lowest price at which the contractor can furnish the supplies.

The Government is to be presumed, in connection therewith, to be ready and willing to make prompt payment, and that it does not ask credit.

If discounts are offered, they should appear in the agreement, or, if offered afterwards, I think they should be expressly offered. Such offer does not necessarily follow from printed discount terms on a printed bill form of the dealer, and the deduction should not be made, at least without preliminary inquiry.

On the general subject of discounts, I think it proper to quote from a decision of a former Comptroller to the Public Printer (July 10, 1908, 46 MS. Comp. Dec., 181), as follows:

"As a matter of personal opinion, I may say that I do not attach any very great importance to the insertion of discount clauses in contracts or proposals and acceptances, based upon prompt payment, or otherwise. The statute requires competition in order that the Government may have the benefit thereof by awarding contracts to the lowest responsible bidder. It is expected that disbursing officers will make prompt payments of the bills of contract and other creditors of the Government upon the submission of regular vouchers regardless of whether there is any provision for discount. It is safe to assume that when a company, firm, or corporation consents to a certain discount it arranges its schedule of prices accordingly so that the usual profit may still be made."

Answering the inquiry generally, I have to say that under agreements for the purchase of supplies, calling for the payment of stipulated amounts, discounts should not be deducted unless they are in the status of being expressly offered. (See 14 Comp. Dec., 1, 5.)

CLERK TO BOARD OF VISITORS, UNITED STATES MILITARY ACADEMY. The appropriation carried in the act of March 4, 1915, for the support of the United States Military Academy is not available for payment of the salary and traveling expenses of a clerk to the Board of Visitors of that institution.

Decision by Comptroller Warwick, August 22, 1916:

The Auditor for the War Department submitted for approval, disapproval, or modification his decision dated the 17th instant, making an original construction of a statute, as follows:

"In connection with the audit of the accounts of E. J. Timberlake, major and disbursing officer, United States Military Academy, the question has arisen whether a certain disbursement made by him out of the appropriation for the current and ordinary expenses of the academy for the fiscal year 1916 was a proper disbursement under the existing law, and the consideration of the question necessitates the construction of the law herein made, which I have the honor to submit for your approval, disapproval, or modification, as required by section 8 of the act of July 31, 1894 (28 Stat., 207).

"The facts pertinent to the matter under consideration are as follows: In the June, 1916, accounts of Maj. Timberlake there was presented for audit the voucher of Horace G. Shull, special clerk to the Board of Visitors from the House of Representatives to the United States Military Academy at West Point, N. Y. This voucher covers the period from May 30 to June 1, 1916, and consists of two items: