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to its amendment by the act of 1959, section 131(b) provided in part that:
* * * Upon application of the State, any such [advertising control] agreement may, within the discretion of the Secretary of Commerce, consistent with the national policy, provide for excluding from application of the national standards segments of the Interstate System which traverse incorporated municipalities wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or which traverse other areas where the land use is clearly established by State law as industrial or commercial * * *
The legislative history of the initial provision for advertising control shows that it was the intention of Congress to recognize and preserve unimpaired the status of incorporated municipalities so far as their rights to control advertising within their corporate limits were concerned. In Hearings before a Subcommittee of the Commit
a tee on Public Works, United States Senate, 85th Congress, 2d Session on S. 963, S. 3041 and S. 3218, bills relating to the control of advertising on Interstate Highways, the statements by the Under Secretary of Commerce for Transportation and the Legislative Counsel for the American Automobile Association pointed out that S. 3218 as presented made the national policy for advertising control inapplicable to sections of the Interstate System within incorporated municipalities. See pages 12 and 38 of the Hearings. The statement of policy in the bill called for control of roadside advertising along portions of the Interstate System outside incorporated municipalities; and it was pointed out that by referring generally to such municipalities, provisions for advertising control might be rendered inapplicable to certain areas where incorporated municipalities such as towns and boroughs constitute the basic political subdivisions of a state, and where, accordingly, the boundaries of such municipalities are contiguous throughout the state. It was for this reason that section 12 of the Federal-Aid Highway Act of 1958, as finally enacted, provided for the exercise of discretion by the Secretary of Commerce in excluding from application of the national advertising standards segments of the Interstate System traversing incorporated municipalities wherein the use of real property adjacent thereto was subject to municipal regulation or control or traversing other land areas where the land use was clearly established by state law as industrial or commercial.
However, the provision for the exercise of discretion was deleted by section 106 of the 1959 act and the mandatory provision quoted above inserted in its stead. But in making the exclusion of incorporated municipalities mandatory, it was recognized that some states, particularly those in New England, were comprised of virtually contiguous areas of incorporated municipalities, and it was for that very reason that exclusion of the control provisions was limited to those segments of the Interstate System which traverse commercial or industrial zones. 105 Cong. Rec. 18251 (1959).
In common parlance, as well as in legislative and judicial language, the word “municipality” is applied to towns, as well as to cities and incorporated villages. Miller v. Town of Jacobs, 35 N.W. 324, 325. The ordinary significance of the term “municipal corporation” is a city, town, or village. Howell v. Port of New York Authority, 34
, F. Supp. 797, 800. A "municipal corporation” is a body established by law chiefly to regulate local internal affairs of city, town, or district incorporated. First Suburban Water Utility Dist. v. McCanless, 146 S.W. 2d 948, 950. See also State ex rel. Koontz v. Board of Park Com’rs of City of Huntington, 47 S.E. 2d 689, 694; Neuenschwander v. Washington Suburban Sanitary Commission, 48 A. 2d 593, 597; and Commonwealth v. Town of Hudson, 52 N.E. 2d 566, 572. We believe that in view of the general meaning of the term “municipa! corporation” and in light of the legislative history-particularly since it shows an intent of Congress that regulatory prerogatives of incorporated municipalities are not to be encroached upon—there is no basis for excluding the “incorporated town" from the meaning of the term "incorporated municipalities” as that term is used in 23 U.S.C. 131(b).
Accordingly, notwithstanding that there may arise problems in administering the statute, the answer to the question presented is in the affirmative.
[B–141835] Military Personnel Dual Compensation—Warrant Officers—Receipt of Retired Pay Based on Warrant Officer v. Higher Commissioned Grade
A retired permanent regular commissioned warrant officer of the Navy who has his name placed upon the Temporary Disability Retired List in a commissioned officer grade but who, because of entitlement to retired pay computed on the formula most favorable to him, continues to receive temporary disability retired pay based upon his warrant officer grade under formula 4 of 10 U.S.C. 1401 is not receiving retired pay "for or on account of services as a commissioned officer" as used in section 212 of the Economy Act of 1932, 5 U.S.C. 59a, and, therefore, the dual compensation restriction is not for application. A permanent regular commissioned warrant officer of the Navy who has his name placed upon the Temporary Disability Retired List in a commissioned officer grade because of a higher temporary commission once held and who receives retired pay of that grade does not come within the rule in Tato v. United States, 136 Ct. Cl. 651, in which it was held that a commissioned warrant officer grade because of a higher temporary commission once held and who sation limitation in section 212 of the Economy Act of 1932, 5 U.S.C. 59a ; therefore, the member is subject to the $10,000 per annum dual compensation restriction. A retirement of a permanent regular commissioned warrant officer for a disability of a permanent nature, as distinguished from placement of the member's name on the Temporary Disability Retired List, would not change the application of the dual compensation restriction in section 212 of the Economy Act of 1932, 5 U.S.C. 59a, so that if the retired warrant officer is retired for a permanent disability in a commissioned officer grade because of a higher commission once held but continues to receive retired pay based on the warrant officer grade he is not subject to the dual compensation restriction. Warrant officers who are voluntarily retired under 10 U.S.C. 1293, advanced on the retired list to a higher commissioned officer grade, but who continue to receive retired pay based upon the commissioned warrant officer grade, are not receiving retired pay "for or on account of services as a commissioned officer” as used in section 212 of the Economy Act of 1932, 5 U.S.C. 59a, and, therefore, are not subject to the dual compensation restriction; however, if they receive retired pay based upon the higher commissioned grade, they are subject to the $10,000 per annum dual compensation restriction. Since regular warrant officers of the Army and Air Force are not commissioned officers, the dual compensation rules established for retired warrant officers of the Navy would be for application to the same extent. To the Secretary of Defense, June 3, 1960:
By letter dated January 22, 1960, the Assistant Secretary of Defense (Comptroller) requested decision on certain questions set out and discussed in Committee Action No. 256 of the Military Pay and Allowance Committee, Department of Defense, concerning the applicability of the dual compensation provisions of section 212 of the Economy Act of June 30, 1932, as amended, 5 U.S.C. 59a, to retired commissioned warrant officers. It is stated that the retired officers intended in questions 1 and 2 are of the category to which the dual employment act (28 Stat. 205, as amended, 5 U.S.C. 62) would apply were it not for the circumstances of retirement by reason of physical disability (not combat incurred or caused by an instrumentality of war). The questions are separately quoted and answered below.
Question 1 is as follows:
1. If otherwise applicable, would the dual compensation provisions of section 212 of the Economy Act of June 30, 1932, as amended, 5 U.S.C. 59a, apply in the case of:
a. A permanent regular commissioned warrant officer whose name is placed upon the Temporary Disability Retired List in commissioned officer grade although receiving temporary disability retired pay based upon commissioned warrant officer grade?
b. A permanent regular commissioned warrant officer whose name is placed upon the Temporary Disability Retired List in commissioned officer grade and who is receiving temporary disability retired pay based upon commissioned officer grade?
It is reported that question la stems from a factual circumstance in the Navy. It appears that the member concerned was determined to be incapacitated by reason of physical disability rated as 40 percent and he was placed on the Temporary Disability Retired List in the grade of Chief Supply Clerk (W-4), effective February 1, 1958. The total number of years of active service creditable for computation of the percentage multiple factor was 30, in accordance with which his retired pay was computed at the election of the member. On September 10, 1957, the Secretary of the Navy had determined the highest grade in which the member had satisfactorily served was lieutenant.
In view of this determination, which the order placing the member on the Temporary Disability Retired List did not reflect, such order was corrected to show that his retirement was in the grade of lieutenant. This correction is stated to have been purely clerical and administrative and not made pursuant to 10 U.S.C. 1552. In the correction letter, the member's retirement (TDRL) was indicated in the grade of lieutenant but with retired pay computed on the basis of his service as a commissioned warrant officer (W-4).
Placement upon the Temporary Disability Retired List now is accomplished under authority of 10 U.S.C. 1202, with the resultant entitlement to receive retired pay "computed under section 1401 of this title.”
Section 1372, Title 10 of the U.S. Code, provides in pertinent part as follows:
Unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:
(1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.
(2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.
Section 1401, Title 10 of the U.S. Code, provides that if a person would otherwise be entitled to retired pay computed under more than one pay formula of the table in that section, or under any other provision of law, he is entitled to be paid under the applicable formula "that is most favorable to him.” In this connection, Formula No.4 not involving disability retirements—authorizes computation of retired pay on the basis of the monthly basic pay to which the member would have been entitled if he had served on active duty in his retired grade on the day before retirement or, “if the pay of that grade is less than the pay of any warrant grade satisfactorily held by him on active duty, the monthly basic pay of that warrant officer grade.”
The dual compensation restriction contained in section 212 of the Economy Act of June 30, 1932, as amended, 5 U.S.C. 59a, is directed against the receipt of civilian compensation and retired pay in excess of the combined rate of $10,000 per annum, when such retired pay is "for or on account of services as a commissioned officer.” Question la is directed to the matter of whether a retired permanent regular commissioned warrant officer whose name is placed upon the Temporary Disability Retired List in a “commissioned officer” grade may
a be regarded as receiving retired pay for or on account of service as a commissioned officer, although he is receiving temporary disability retired pay based upon a commissioned warrant officer grade.
In our decision of March 7, 1958, 37 Comp. Gen. 591, we said that we would follow the decision of the Court of Claims in the cases of Tato v. United States, 136 C. Cls. 651, and Atkins, et al. v. United States, 141 C. Cls. 88. In those cases, the Court of Claims held that a commissioned warrant officer is not a "commissioned officer” within the meaning of that term as used in the dual compensation limitation in section 212. Such officers will be referred to herein as warrant officers. The Secretary's determination that the highest grade in which a member, such as the one involved in question la, had satisfactorily served was that of lieutenant would result in his receiving the retired pay of a lieutenant under Formula 2 of 10 U.S.C. 1401, unless, as is assumed to be the case here, he could qualify for higher retired pay under Formula 4, based on the monthly basic pay of his warrant officer grade. In such circumstances, it appears that he is not receiving retired pay "for or on account of services as a commissioned officer.” Accordingly, question la is answered by saying that so long as the retired permanent regular warrant officer properly is in receipt of temporary disability retired pay computed under Formula 4 of 10 U.S.C. 1401, on the basis of his warrant officer pay, he need not be considered as within the inhibition of the dual compensation provisions of section 212 of the Economy Act of June 30, 1932, as amended.
Regarding question 1b, it appears that a permanent regular warrant officer whose name is placed upon the Temporary Disability Retired List in a commissioned officer grade because of a higher temporary commission once held and who receives the retired pay of that grade does not come within the rule of the Tato case, and similar court decisions. There appears to be no basis for substantially distinguishing this question from that involved in our decision of December 10, 1957, B-134102. In that case we held that an enlisted man of the Regular Army, advanced subsequent to his retirement to the highest temporary commissioned officer grade satisfactorily held by him while serving on active duty, with entitlement to the increased retired pay in that grade, was subject to the $10,000 per annum restriction imposed by 5 U.S.C. 59a, since the retired pay he received was on account of his service as a commissioned officer. Accordingly, question lb is answered in the affirmative.
Question 2 is as follows:
2. Would the answers to the foregoing be the same if the circumstances stated were changed only to the extent that retirement in each case was because of disability of a permanent nature?
In answer to question 2, you are advised that we concur in the opinion expressed in the Committee Action to the effect that no reason