Comptroller Warwick to the Secretary of the Treasury, April 14, 1917:

I have your letter of the 24th ultimo, as follows:

"The department is in receipt of a request from the collector of customs at Philadelphia, Pa., for authority to purchase two autotrucks at a cost of $3,650 for use to truck imported merchandise under the control of the Government and sent to the appraiser's stores for examination at that port.

"Under the provisions of section 25 of the act of June 22, 1874 (18 Stat., 191), which reads:

"That public cartage of merchandise in the custody of the Government shall be let after not less than thirty days' notice of such letting to the lowest responsible bidder giving sufficient security, and shall be subject to regulations approved by the Secretary of the Treasury.'

"It has been the practice of this department to have this cartage service performed under annual contract, after due advertisement, by the lowest responsible bidder.

"Your decision is respectfully requested as to whether this department is authorized to purchase autotrucks (the expense therefor to be payable from the appropriation Collecting the revenue from customs') and perform this public cartage, service, provided the cost of such service is less than the lowest bid received for such cartage."

The provision of law quoted by you is mandatory and applies to all cartage properly chargeable against the appropriation “Collecting the revenue from customs" on merchandise in the custody of the United States customs officials (20 Op. Atty. Gen., 35).

The fact that the service might be performed or obtained more economically in some manner other than by contract as required by the law can not operate to justify a disregard of the plain provisions of the statute. While economy may have been one of the objects sought to be effected by this legislation, it was not necessarily the only one. But be that as it may, Congress has seen fit to prescribe the manner in which this service shall be obtained and the effect of such action is to preclude the use of any other means in the performance of such service.

The question submitted is answered in the negative.

DUTIES AND TAXES IN RE ISLANDS PURCHASED FROM DENMARK. The duties and taxes which, under the provisions of section 5 of the act of March 3, 1917, are not to be covered into the general fund of the Treasury, but are to be applied to the sole use and benefit of the West Indian Islands purchased from Denmark, are only such duties and taxes as are collected in those islands, and not those collected at ports of the continental United States on articles imported from said islands.

Comptroller Warwick to the Secretary of the Treasury, April 14, 1917:

By your reference of the 3d instant, decision is requested of a question presented by the Commissioner of Internal Revenue as follows:

"Sections 3 and 5 of the act of March 3, 1917, 'An act to provide a temporary government for the West Indian Islands acquired by

the United States from Denmark by the convention entered into between said countries on the fourth day of August, nineteen hundred and sixteen, and ratified by the Senate of the United States on the seventh day of September, nineteen hundred and sixteen, and for other purposes,' provide as follows:

"Sec. 3. That on and after the passage of this act there shall be levied, collected, and paid upon all articles coming into the United States or its possessions, from the West Indian Islands ceded to the United States by Denmark, the rates of duty and internal-revenue taxes which are required to be levied, collected, and paid upon like articles imported from foreign countries: Provided, That all articles the growth or product of, or manufactured in such islands from materials the growth or product of such islands or of the United States, or of both, or which do not contain foreign materials to the value of more than twenty per centum of their total value, upon which no drawback of customs duties has been allowed therein, coming into the United States from such islands shall hereafter be admitted free of duty.'

"SEC. 5. That the duties and taxes collected in pursuance of this act shall not be covered into the general fund of the Treasury of the United States but shall be used and expended for the government and benefit of said islands under such rules and regulations as the President may prescribe.'

"I have the honor to request that an opinion be obtained from the Comptroller of the Treasury regarding the deposit of internalrevenue taxes collected on articles of merchandise coming into continental United States from the West Indian Islands under the provisions of the act approved March 3, 1917; that is, whether or not such internal-revenue collections shall be treated as general internalrevenue collections or shall constitute a special fund to be used and expended for the government and benefit of the West Indian Islands under such rules and regulations as the President may prescribe."

Section 4 of the act in question (39 Stat., 1133) provides:

"That until Congress shall otherwise provide all laws now imposing taxes in the said West Indian Islands, including the customs laws and regulations, shall, in so far as compatible with the changed sovereignty and not otherwise herein provided, continue in force and effect, except that articles the growth, product, or manufacture of the United States shall be admitted there free of duty: Provided, That upon exportation of sugar to any foreign country, or the shipment thereof to the United States or any of its possessions, there shall be levied, collected, and paid thereon an export duty of $8 per ton of two thousand pounds, irrespective of polariscope test, in lieu of any export tax now required by law."

This section is the only provision in the act for collecting taxes or duties in the islands. Section 3, quoted by the commissioner, supra, relates to the collection of duties or taxes in the United States. on articles imported from or through the islands to the United States. Such duties and taxes are not collected "in pursuance of this act," but under the general laws of the United States relative to the collection of duties and taxes on articles imported from foreign

countries and a continuation of the duties and taxes as they existed by law before the change of sovereignty. The effect of the section is to exempt from such duties and taxes certain articles produced or manufactured in the islands.

It appears from the discussions on this provision in the House and in the Senate (Congressional Record of Feb. 19 and 20, 1917) that the only revenue of the islands would be derived from articles imported thereto, except the export duty on sugar, which was imposed to compensate for the loss on imports from the United States, which are to be admitted free.

While the language of section 5 of the act might be broad enough to include the taxes and duties referred to in section 3, I am of opinion that such was not the intent of Congress and that such construction of the provision is not required. You are advised, therefore, that the provisions of section 5 refer only to duties and taxes collected in pursuance of the provisions of section 4 and that internal-revenue taxes collected on articles coming into the continental United States, as contemplated in the privisions of section 3, should be treated as general internal-revenue collections of the United States.

OVERTIME PAY, NAVY YARDS.

Where per diem employees of a navy yard are on duty continuously for more than eight hours but not more than eight hours in the same calendar day, they are not entitled to pay at the overtime rate for any portion of their duty period.

Comptroller Warwick to H. A. Dent, Pay Inspector, United States Navy, April 14, 1917:

I have your letter of March 31, 1917, as follows:

66* * * There is inclosed a pay roll covering overtime for certain employees, amounting to $20.24, and it is stated that said overtime was made on two different calendar days.

"It appears that these employees worked between midnight of one day and midnight of the next day eight hours, in two shifts of four hours each, and the roll in question allows time and a half for the last four hours worked, less straight time already allowed on a previous roll.

"In view of the fact that they did not work in excess of eight hours in one calendar day, am I authorized to pay the amounts shown on the roll referred to?"

The industrial manager of the navy yard, Norfolk, in a letter to the Secretary of the Navy, dated February 23, 1917, states the following facts relative to this overtime:

"1. Owing to a change of orders made at the request of the men, who stated that they preferred shifts from 8 to 8 rather than

from 12 to 12, one shift on Monday, February 5, worked from 12 o'clock midnight until 4 a. m., and then from 8 p. m., Feb. ruary 5, until 8 a. m., February 6. These men again went to work 8 p. m., February 6, and worked until 8 a. m., February 7. They were allowed pay for February 5 and 6 as follows: eight hours straight pay for February 5, eight hours straight pay for February 6, and four hours overtime pay for February 6.

From the above it appears that on February 5 the men worked but eight hours (12 midnight to 4 a. m., and 8 p. m., to 12 midnight), and that on February 6, and each day thereafter, they worked 12 hours (12 midnight to 8 a. m., and 8 p. m., to midnight). It also appears that they have been paid for February 5 at the regular rate of pay for eight hours, and for February 6, eight hours at the regular rate of pay, and four hours at the overtime rate of pay.

I am of the opinion that the payments made as stated in the communication of the industrial manager were the correct amounts to which the men were entitled. As the men worked but eight hours during the calendar day February 5, they are not entitled to any overtime pay for that period. You are accordingly advised that you are not authorized to pay any overtime in this particular case for February 5, 1916.

RETIRED ARMY OFFICERS ON ACTIVE DUTY.

Under the provisions of the national defense act of June 3, 1916, all retired officers of the Army placed on active duty in time of war are entitled to the full pay and allowances of their respective grades. (See 23 Comp. Dec., 605.

Decision by Comptroller Warwick, April 18, 1917:

The Auditor for the War Department submits for approval, disapproval, or modification his decision dated the 14th instant, making an original construction of a statute, as follows:

"In the national defense act of June 3, 1916 (39 Stat., 183), is found this proviso in section 24:

"That in time of war retired officers of the Army may be employed on active duty, in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grade.'

"By the act of March 2, 1905 (33 Stat., 831), it was provided that officers of the Army above the grade of major assigned to active duty should receive their full retired pay without further pay or allowances from the United States. This statute was amended by the act of June 12, 1906 (34 Stat., 245), to the extent of allowing a colonel or lieutenant colonel theretofore or thereafter assigned to active duty the same pay and allowances as a retired major would receive under a like assignment.

"If the provisions of the act of March 2, 1905, as amended by the act of June 12, 1906, are still effective, it is evident that retired

officers above the rank of major called into the active service of the United States in the time of war, could not receive the higher rate of pay and allowances than would a major on active duty, and this would only apply to colonels and lieutenant colonels. As to any higher officer it would appear that the provisions of the act of March 2, 1905, would permit him to receive his retired pay only without any allowances.

"I am of the opinion, however, and so hold, that section 128 of the national defense act, supra, which repealed all laws and parts of laws in conflict with the provisions of the national defense act, must be considered as having repealed the provisions of the act of March 2, 1905, and June 12, 1906, above referred to, in so far as they limit the right of an officer above the rank of major to receive the full pay and allowances of his grade whenever he may be called into active service in time of war. To hold otherwise would be to defeat the manifest purpose of the above-quoted proviso of the twenty-fourth section of the act of June 3, 1916.

"The proper construction of the statutes referred to becomes of great importance at this time because of the provisions of Public Resolution No. 1, Sixty-fifth Congress, approved April 6, 1917, which, in effect, is a declaration of war against the Imperial German Government; and in the opinion of this office such retired officers of the Army as may have been employed on active duty since the approval of such resolution, come within the purview of the abovecited proviso of section 24 of the act of June 3, 1916. The decision of the auditor is approved.

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EXTRA-DUTY PAY, MARINE CORPS, AVIATION SECTION.

Enlisted men of the Marine Corps, detailed to duty at an aeronautic station, involving actual flying in aircraft, are not entitled, while so detailed and receiving the additional pay provided therefor, to extra-duty pay as for duty performed as mechanics.

Decision by Comptroller Warwick, April 18, 1917:

Maj. H. C. Reisinger, assistant paymaster, United States Marine Corps, applied March 20, 1917, for a revision of so much of the action of the Auditor for the Navy Department in settlement No. 8821-D, dated March 13, 1917, as disallowed therein items aggregating $729.50, being for extra duty pay to numerous enlisted men of the Marine Corps mustered or detailed as mechanics in the Marine Aviation Section, United States Navy Aeronautic Station, Pensacola, Fla., at the rate of 50 cents per day in the period from March 1, 1916, to May 31, 1916, as shown on vouchers No. 397, March, 1916; No. 417, April, 1916; No. 395, May, 1916; No. 20, reenlistment pay to Thad T. Taylor, May, 1916; and No. 283, final pay to Thad T. Taylor on discharge of May 18, 1916.

The auditor disallowed the payments upon the ground that duty as mechanic erecting aeroplanes, realignment of aeroplanes, installation