Medical Corps who are carried on the rolls at the close of the fiscal year ending June 30, 1917, will not be entitled to the increase in question. (23 Comp. Dec., 668, 670, 680, 685.)

The question submitted is answered accordingly.

FIVE AND TEN PER CENT INCREASES OF COMPENSATION.

Persons employed by the Government from day to day, or to do a particular job, or whose compensation is not fixed by law or regulation, but by agreement at the time when the services are engaged, are not entitled to the percentage increases of compensation under the provision of section 2 of the sundry civil appropriation act of June 12, 1917, such persons not being employees of the United States within the meaning of that act.

Comptroller Warwick to the Secretary of Commerce, June 28, 1917:

I have your letter of the 23d instant, as follows:

"In making provision for the compensation of certain employees in the field service of this department after July 1, 1917, the department will be required to consider the effect of section 2 of the sundry civil appropriation act, for the fiscal year 1918 (Public, No. 21, approved June 12, 1917), and your decision is requested as to the applicability of that section to the following-described cases:

"The appropriation General expenses, Lighthouse Service' (page 63, sundry civil act, 1918), provides for 'temporary employees and field force while engaged on works on general repair and maintenance.' These field employees, who are laborers, carpenters, blacksmiths, plumbers, and other artisans, are paid at certain per diem rates of compensation.

"The appropriation 'Party expenses, Coast and Geodetic Survey (page 64, sundry civil act, 1918), provides for 'compensation, not otherwise appropriated for, of persons employed in the field work.' Under this provision there are appointed magnetic observers, tide observers, signalmen, chart correctors, topographic draftsmen, etc., appointed by the Secretary of Commerce from civil-service registers, and whose salaries are fixed by the Secretary. There are also employed hands, cooks, and laborers, hired by chiefs of parties, whose rate of pay is fixed by the chief of party hiring them at the time of employment. These persons are not appointed by the Secretary nor are they in a civil-service status. All are employed in the field away from Washington.

"The appropriation 'Pay, etc., of officers and men, vessels' (page 65, sundry civil act, 1918), provides for all necessary employees to man and equip the vessels, including professional seamen serving as mates on vessels of the survey.' Under this item there are employed professional seamen, surgeons, and chief engineers appointed by the Secretary at fixed salaries and from civil-service registers. There are also employed members of crews who are shipped for a term of one year and their pay fixed by regulations prescribed by the Secretary of Commerce. These are not civil-service employees, nor are they appointed by the Secretary.

"It is important that this matter be decided at the present time, as the question as to whether or not these employees are entitled under the law to the 5 and 10 per cent increase will have a material bearing upon changes which may be made in the compensation of these employees."

The section in question is broad in its terms, and, subject to the limitations with respect to rates of compensation, it is applicable to all employees of the United States whose compensation is to be paid from appropriations made in the act.

It has been held, however, that persons employed from day to day, or to do a particular job, or whose compensation is not fixed by law or regulation, but is made a matter of agreement in each case at the time the services are engaged, are not employees of the United States within the meaning of this law. In other words, the tenure of employment must be more or less permanent in its nature to entitle the persons to be regarded as employees of the United States. In this connection, see 23 Comp. Dec., 668, 717, 740, 747, 780. The questions submitted are too general in character to be answered more specifically at this time.

ADDITIONAL COMPENSATION, OFFICERS' TRAINING CAMPS.

An employee of the United States on leave of absence and attending an officers' training camp as a candidate for a commission in the Officers' Reserve Corps of the Army may not lawfully receive his regular compensation as a civilian employee for such period in addition to pay as such candidate, when the annual rate of the combined compensation so received exceeds $2,000.

Comptroller Warwick to the Secretary of War, June 28, 1917:

By indorsement of the 20th instant decision is requested of a question presented by the Bureau of Insular Affairs as follows:

"1. George M. Wilmeth, a clerk at $1,800 in this bureau, entered the Reserve Officers' training camp, Fort Myer, Virginia, on May 14, 1917, and will receive a compensation at the rate of $100 per month for his services while there, as authorized by the U. S. Army appropriation act, approved May 12, 1917.

"2. In accordance with a decision by the Comptroller of the Treasury, that the salary of an employee paid from civil funds must cease upon his drawing a compensation from Army funds, where the combined salaries would exceed $2,000 per annum, the disbursing clerk of the War Department directed that Mr. Wilmeth be paid only for the first thirteen days in May. He was dropped from the pay roll, without prejudice, to take effect June 3, 1917, by action of the War Department, and was carried on the rolls from May 14 to June 3, inclusive, as being absent on leave without pay.

"3. As Mr. Wilmeth had annual leave due him, this bureau granted the same to him to include May 31, 1917, and his position was not filled by promotion until the month of June.

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"4. This bureau is now in receipt of correspondence from Mr. Wilmeth making a claim for his salary from May 14 to May 31, inclusive, at the rate of $1,800 per annum, and bases his claim upon the following statement of facts; that there are several cases identical with his own where leave with pay has been granted; he gives the names of Arthur C. Fowle and Howard L. Leslie, as employes of the Treasury Department, who entered the Reserve Officers' training camp at the same time that he did, and who have received their regular salaries from the Treasury Department up to June 1, 1917; that same was allowed them after one of these cases, or a similar case, had been submitted to the Comptroller of the Treasury."

The payments at the rate of $100 per month to candidates for commissions at the training camp, Fort Myer, Va., are being made under authority of a provision in the deficiency appropriation act of June 15, 1917 (Public, No. 23, p. 8), and not under authority of the provision in the Army appropriation act of May 12, 1917, which does not become effective until July 1.

The case of Arthur C. Fowle, referred to in the above-quoted letter, has not been before this office.

In a decision dated June 9, 1917, this office authorized payment of Howard L. Leslie's salary as a clerk in the Treasury Department for the period from May 14 to 31, for the reason that at that time there was no law authorizing payment to him for his service at the training camp. After receiving his compensation for service at the training camp he refunded the amount paid to him by the Treasury Department.

If. Mr. Wilmeth is entitled to compensation at the rate of $100 per month from May 14 to 31, he is not entitled to salary as a clerk, class 4, for any part of said period. See decision of June 25, 1917, to S. R. Jacobs, disbursing clerk, Treasury Department (23 Comp. Dec., 768).

FIVE AND TEN PER CENT INCREASE OF COMPENSATION-PAY OF CLERKS, COUNCIL OF NATIONAL DEFENSE.

Civilian employees of the Council of National Defense are not entitled to percentage increases of compensation under any of the annual appropriation acts authorizing such increases to certain classes of civilian employees. Under the provisions of the act of June 15, 1917, employees of the Council of National Defense performing clerical services may be paid compensation only at the rates specified in section 167, Revised Statutes.

Comptroller Warwick to the president of the Council of National Defense, June 29, 1917:

I have your letter of the 21st instant, as follows:

"In the act' Making appropriations for the support of the Army for the fiscal year ending June 30, 1918, and other purposes,' ap

proved May 12, 1917, there is appropriated for the use of the Council of National Defense, the unexpended balance remaining on hand June 30, 1917, of the appropriation of $200,000 appropriated by the act approved August 29, 1916.

"In the act making appropriations to supply urgent deficiencies approved June 15, 1917, there is made further appropriation of $500,000 for the expenses of the Council of National Defense.

"This latter act provides for employment of experts and, at rates of compensation authorized by section 167 of the Revised Statutes of the United States, of clerical and other assistance.'

"There are in the Council of National Defense a number of messenger boys receiving $480 per annum and a number of clerks and stenographers employed at a salary of $1,000 per annum which are not rates of compensation authorized by section 167 of the Revised Statutes. While other departments have made the entrance salary of stenographers and typewriters at $1,000 per annum, the Council of National Defense has followed a plan of making the entrance salary $900 per annum, and then promoting to the higher grades the more efficient employees. Under these conditions, several of the employees of the Council of National Defense have remained in the council, although offered an increased salary elsewhere, and it will be impossible to retain the services of a number of employees now receiving $1,000 per annum if, in accordance with the legislation above referred to, they are reduced in salary. If it is held that the above legislation prohibits a payment of a salary of $1,000 per annum, it will therefore be necessary to promote the employees now receiving $1,000 per annum to a salary of $1,200 per annum or lose their services, which would greatly interfere with the work now being done by the council.

"You are therefore respectfully requested to render a decision: "1st. As to whether there are any other provisions of law which would modify the provisions above referred to of the act approved June 15, 1917.

"2d. If not whether the council will be bound in payments from the appropriation act above referred to only to the grades provided for by section 167 of the Revised Statutes; and if so whether the messenger boys now receiving $480 per annum can be legally promoted to the position of assistant messenger at $720 per annum.

"3d. Whether section 167 which makes no provision for salary in excess of $1,800 per annum will apply to such places as the secretary to the council and advisory commission, the chief clerk, the disbursing officer and appointment clerk, the executive secretary of the woman's committee and the chiefs of divisions, none of whom are performing clerical work, but all of them on account of their peculiar training and special fitness for the places which they occupy are holding administrative and executive places in the council.

"4th. Inasmuch as the act appropriating the unexpended balance does not contain the provision limiting the salary of clerical and other assistants to the rates of pay provided in section 167 of the Revised Statutes of the United States could the administrative officers continue to pay their present rates of compensation after July 1

from the reappropriated unexpended balance until such time as that appropriation is exhausted.

"You are also requested to advise me whether or not the legislation in reference to increase of compensation of 5 per cent in salaries from $1,200 to $1,800 and 10 per cent in salaries of less than $1,200 will apply to salaries paid by the council under the act approved June 15, 1917. Also if it is decided that payment of salaries can be continued after June 30 under the present rate of compensation under the appropriation of the unexpended balance whether the 5 and 10 per cent increases above referred to will apply to salaries so paid by the council."

The provision in the act of June 15, 1917 (Public, No. 23, p. 1), making appropriation for the expenses of the Council of National Defense, is as follows:

"For expenses of experimental work and investigations undertaken by the Council of National Defense, employment of experts, and at rates of compensation authorized by section one hundred and sixty-seven of the Revised Statutes of the United States of clerical and other assistance, supplies, including books of reference and periodicals, and for necessary expenses of members of the council, of the advisory commission, or subordinate bodies going to and attending meetings of the commission or subordinate bodies, $500,000:

The language of this provision is so plain and its intent with respect to the employment of personal services is so manifest that there is no room for construction or interpretation. The appropriation therein made can not be used in the employment, at rates of compensation other than those authorized in section 167 of the Revised Statutes, of any persons other than experts.

However, this restriction applies only to the use of the appropriation of $500,000. The unexpended balance of the appropriation of $200,000 made in the act of August 29, 1916 (39 Stat., 650), which was reappropriated and made available for the fiscal year 1918 by a provision in the Army appropriation act of May 12, 1917 (Public, No. 11, p. 36), is not affected by the above limitation, and can be used for the employment of personal services at rates other than those authorized by said section 167.

With reference to your third question, this office is not acquainted with the qualifications of the particular persons serving in the positions named by you, and therefore can not decide whether or not they are experts, nor whether or not they are serving in positions that can be filled only by experts. From your statement it would appear they are not performing clerical work, which to some extent is the test under this appropriation. Upon the state