The copies of the typical contracts and letters show modification of the original contract price so as to include an additional allowance to cover these various carrying charges, as follows:

By supplementary agreement of September 27, 1921, contract No. 53527, dated May 5, 1921, with Ichabod T. Williams & Sons, providing for delivery of a quantity of teak in lots of 300,000 feet each, within two years commencing ten months after the date of the contract, it was provided that payment for the third shipment (lot) in case shipment is made and payment is due March 1, 1922, would be deferred until after July 1, 1922, for which the contractor would be paid a carrying charge not to exceed $1,800. A like provision is made covering the fourth shipment in the sum of $900 if due May 1, 1922. In case shipments are due at later dates the amounts to be paid will be adjusted in proportion to the time remaining prior to July 1, 1922.

The sums allowed as carrying charges equal approximately 6 per cent on the deferred payments.

Article 17 of the original contract provides:

That the United States reserves the right to make payments only upon the completion of the contract when such action is considered to be for its best interests.

By supplementary agreement of November 21, 1921, contract No. 51457, dated August 4, 1920, with Charles Cory & Son (Inc.), was amended so as to provide for payment on orders up to $25,000, payment “of the remaining $75,600 being deferred until after 1 July, 1922, unless funds become available prior to that date."

Charles Cory & Son, Inc., is hereby allowed a carrying charge not to exceed $2,268.00, payable by the Newport News Shipbuilding & Dry Dock Company, to cover all increased cost on account of deferred payments, subject to a proportionate reduction in the amount of the carrying charge if complete deliveries are not made before 1 January, 1922.

The carrying charge is exactly 6 per cent on the deferred payment for the period of six months. The original contract is not submitted but it is assumed that Form N. S. A. 535, revised to November 1, 1918, was used and contains provisions similar to the original contract referred to above.

By supplementary agreement of November 16, 1921, modifying contract No. 49518, dated December 13, 1919, with B. F. Sturtevant Co., it was provided as follows:

The terms of original contract 49518 are hereby expressly amended to provide for a carrying charge of 6 per cent per annum on 90 per cent of the face value of the contract, namely $73,044.00 to cover deferred payment from date of delivery to 1 July, 1922.

Article 17 of the original contract also reserves the right to make payments only upon completion.

In reference to orders placed with Ingersoll-Rand Co. by the New York Shipbuilding Corporation covering air compressors and spare

parts, for battle cruiser Santiago and battleships Colorado and Washington, the said corporation advised the Bureau of Engineering, Navy Department, on October 7, 1921, that arrangements had been made with said company whereby

We are to pay them cash in full upon receipt of material, until the first $33,000.00 has been paid. The Ingersoll Rand Company agree to accept payment of the remaining amount, approximately $33,369.50 after July 1, 1922, but not later than July 15, 1922, unless additional funds become available at an earlier date.

that the contract price

2. * and we have agreed is to be revised so as to allow for the carrying cost ***, which is to cover all of the increased costs on account of the reduction of the program

under discussion, shall be $1,169.88. This plan was submitted to the Secretary of the Navy October 14 and by letter of October 21, 1921, the Secretary authorized said corporation "to conclude the agreement."

This sum also equals approximately 6 per cent on the deferred amount for seven months.

Under the terms of the original contracts payments could have been deferred until after completion thereof. It is understood that the dates of delivery referred to therein were the dates of final delivery and completion thereof. Otherwise, the payments would be in the nature of a bonus or premium, the payment of which is not authorized except for a special service or other valuable consideration in addition to the giving of consent for deferring payments.

It is observed that the carrying charge equals 6 per cent of the amount due for the period payment is deferred. Doubtless the computation was determined by allowing the equivalent of 6 per cent interest on the overdue accounts. There is no material difference between interest and any other increase in price. Whatever name it takes, the necessity for a valuable consideration to support the agreement still remains. The liability of the Government to pay interest exists only where it is authorized by express legislation, 8 Comp. Dec., 498; 14 id., 336, and the same rule applies to increasing the contract price.

The Revised Statutes provide as follows:

SEC. 3648. No advance of public money shall be made in any case whatever. And in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment.

*

SEC. 3678. All sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others.

Accordingly it must be held that in the absence of express legislative authority or a good and sufficient consideration moving to the United States to support the allowance of the carrying charge payments thereof must be disallowed in the accounts of the paying officers, if made.

The section of the Budget and accounting act, 1921, referred to by you, 42 Stat., 25, provides that

SEC. 309. The Comptroller General shall prescribe the forms, systems, and procedure for administrative appropriation and fund accounting in the several departments and establishments, and for the administrative examination of fiscal officers' accounts and claims against the United States.

This authority does not intend retroactive approval of administrative activities, involving expenditures of public funds, such as are contained in your submission.

The contracts and their modification have been entered into and the question is whether payments pursuant thereto are authorized. Section 3679, Revised Statutes, prohibits contracts being made for the future payment of money in excess of appropriations. The contracts as originally made were subject to appropriations being made to carry them out. If insufficient appropriations have been made there is no authority to make agreements to pay additional sums of money by reason thereof. Such additional payments are not authorized.

AVIATION PAY AND EXPENSES OF AIR TRAVEL UNDER JOINT SERVICE PAY ACT-COMMISSIONED AND WARRANT OFFICERS AND ENLISTED MEN OF NAVY.

Commissioned officers of the Navy, properly detailed to duty inherently requiring regular and frequent participation in aerial flights, and warrant officers and enlisted men of the Navy, exclusive of staff branches so detailed, who in fact so participate, are entitled to 50 per cent increase in pay, as authorized by acts of June 4, 1920, 41 Stat., 769, and June 30, 1922, 42 Stat., 724, for members of the Army, as extended to members of the Navy by section 20, act of June 10, 1922, 42 Stat., 632.

Commissioned officers of the Navy, when traveling by air on duty without troops, under competent orders, are entitled to actual and necessary expenses, not exceeding $8 per day, in accordance with the act of July 11, 1919, 41 Stat., 109, applicable to officers of the Army, as extended to commissioned officers of the Navy by section 20 of the act of June 10, 1922, 42 Stat., 632. Warrant officers and enlisted men of the Navy, when traveling by air, are entitled to actual necessary expenses or to a flat per diem in lieu thereof, in accordance with the act of April 20, 1918. 40 Stat., 534, as extended to the Navy by section 20 of the act of June 10, 1922, 42 Stat., 632.

Decision by Comptroller General McCarl to the Secretary of the Navy, September 6, 1922:

Referring to Section F of the proposed instructions for carrying into effect section 20 of the joint service pay act of June 10, 1922, 42 Stat., 632, and copy of Executive order of July 1, 1922, "relative to increased pay for duty involving flying, and allowance for traveling expenses incident thereto," submitted with your letter of July 17, 1922, you are advised that in connection therewith the following analysis has been made of the statutory rights to aerial pay and travel expenses of officers, warrant officers, and enlisted men of the Army on and after July 1, 1922, and of Navy officers, warrant officers, and en

listed men by correspondence thereto on and after that date for the performance of like duty.

Section 20 is the sole provision on the subject of flying in the act of June 10, 1922, and provides:

That all officers, warrant officers, and enlisted men of all branches of the Army, Navy, Marine Corps, and Coast Guard, when detailed to duty involving flying, shall receive the same increase of their pay and the same allowance for traveling expenses as are now authorized for the performance of like duties in the Army. * * Regulations in execution of the provisions of this section shall be made by the President and shall be uniform for all the services concerned.

Section 22 of that act further provides:

That the provisions of this Act shall be effective beginning July 1, 1922, and all laws and parts of laws which are inconsistent herewith or in conflict with the provisions hereof are hereby repealed as of that date.

The effect of these provisions is to entitle "officers, warrant officers, and enlisted men of the Navy," when "detailed to duty involving flying," to the same increase of pay and to the same allowance for traveling expenses as on June 30, 1922, were "authorized for the performance of like duties in the Army," and to repeal all Navy laws theretofore in effect in conflict.

In order, therefore, to determine the statutory rights of officers, warrant officers, and enlisted men of the Navy to pay and traveling expenses on and after July 1, 1922, it is only necessary to ascertain what respective officers and men of the Army were then and are thereafter entitled for the "performance of like duties."

The pay of Army "officers and enlisted men" continues on and after July 1, 1922, as theretofore, to consist of a 50 per cent increase "while on duty requiring them to participate regularly and frequently in aerial flights." See section 13 of act of June 4, 1920, 41 Stat., 769, amending section 13 of act of June 3, 1916, 39 Stat., 174, and designating it section "13a."

In addition to said 50 per cent increase in pay both officers and enlisted men of the Army were entitled prior to July 1, 1922, and continue entitled thereafter, to actual and necessary expenses of air travel under separate statutes providing—

That hereafter actual and necessary expenses only, not to exceed $8 per day, shall be paid to officers of the Army and contract surgeons when traveling by air on duty without troops, under competent orders: Act of July 11, 1919, 41 Stat., 109.

That hereafter under such regulations and within such maximum rates as may be prescribed by the Secretary of War enlisted men may be reimbursed for actual expenses of travel, including subsistence and lodging, incurred while traveling under competent orders and not embraced in the movement of troops, or they may be paid a flat per diem therefor in lieu of such reimbursement. Act of April 20, 1918, 40 Stat., 534.

By the declaratory provisions of the act of June 30, 1922, 42 Stat., 724, the officers of the Army theretofore eligible to perform duty requiring them to participate regularly and frequently in

aerial flights, for increased pay purposes were thereafter enlarged to include those “of any branch of the service," as follows:

For aviation increase, to officers of the Army, $950,000: Provided, That the authorization for increase of flying pay contained in section 13a of the Act of June 4, 1920, shall be construed to include any officer of any branch of the service who may be ordered by proper authority to perform duty requiring him to participate regularly and frequently in aerial flights.

This provision enlarges the number of officers who may be detailed to perform duty requiring them to participate regularly and frequently in aerial flights and who in consequence may receive the additional pay.

This enlargement of eligibility having been confined to officers of the Army and to the pay received for duty requiring them to participate regularly and frequently in aerial flights did not affect the rights of officers of the Army to travel expenses as theretofore separately authorized, nor did it extend to warrant officers or enlisted men of the Army for any purpose; neither warrant officers nor men of the Army coming under the term "officers" as used in act of June 30, 1922, which refers to commissioned officers.

The situation, therefore, as to Army officers and enlisted men on and after July 1, 1922, is that officers of any branch may be detailed to duty requiring them to participate regularly and frequently in aerial flights and receive for the performance of such duty the 50 per cent additional pay, and the rights of officers to travel expenses for air travel under the act of July 11, 1919, 41 Stat., 109, and those of enlisted men to 50 per cent increase of pay under the act of June 4, 1920, and to travel expenses under the act of April 20, 1918, continue as theretofore.

Warrant officers of the Army have never been classed by statute apart from "officers and enlisted men" for purposes of either aviation pay or travel expenses and their duties have been such that they have been held not entitled to the increase of pay. See 1 Comp. Gen., 258.

A correspondence of Navy "officers, warrant officers, and enlisted men," for pay and travel expenses to those of the Army in the "performance of like duties," as required by section 20 of the act of June 10, 1922, for period on and after July 1, 1922, produces this result:

Commissioned officers of the Navy-of any branch—become entitled on and after July 1, 1922, to 50 per cent increase of their pay for duty performed under a competent detail which requires them to participate regularly and frequently in aerial flights, and to "actual and necessary expenses only, not to exceed $8," when traveling by air on duty without troops, under competent orders. See section 20, act of June 10, 1922, 42 Stat., 32; section 13 of the act of June 4, 1920, 41, Stat., 769, amending section 13 of the act of June 3, 1916, 39 Stat., 174, and designating it section "13a "; act of July 11, 1919,