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If Ensign McDonnell's leave had not been revoked, and he had proceeded at the expiration thereof from Detroit, Mich., to Rockport, Mass., he would have been entitled to mileage only from Philadelphia, Pa., his old station, to Rockport, Mass., his new station. The fact that the unexpired portion of his leave was revoked does not operate to give him any mileage to which he would not otherwise be entitled.
As was said in Fitzpatrick v. United States, 37 Ct. Cl., 332, 336: There is a principle which has long been recognized both by the accounting officers, the departments, and the courts, which is, that the expiration of a leave of absence finds the officer, in legal contemplation, at his post. It necessitates a hard rule, viz, that where an officer's prescribed leave of absence is shortened, perhaps practically destroyed, he likewise loses his traveling expenses, if the public exigency requires his return to duty. The Court understands the principle to be too well established to be disregarded or changed. An officer takes his leave of absence at his own risk; it is not granted for the benefit of the Government; if the Government wants his services before his leave expires it must have them, and the officer who takes the risk of that must bear the loss of his personal traveling expenses.
I have to advise that Ensign McDonnell is not entitled to mileage under said orders for travel performed from Detroit, Mich., to Rock
TRANSPORTATION_DESTITUTE AMERICAN SEAMEN.
Section 4578, Revised Statutes, as amended by acts of June 26, 1884, 23 Stat.,
55, and June 19, 1836, 24 Stat., 83, providing for the transportation of destitute Anerican seamen at a cost to the United States to be computed at the regular steerage-passenger rate, not exceeding 2 cents per mile, does not establish 2 cents per mile as the minimum but as the maximum rate, and where the vessel transporting such seamen has no steerage-passenger rate and an agreement is made between the consul and the master of the vessel for furnishing transportation at a fixed sum, not exceeding 2 cents per mile,
no payment in excess of the agreed amount is payable. Decision by Comptroller General McCarl, September 21, 1922:
The United States Steel Products Co. applied July 18, 1922, for a review of settlement No. 9437, dated June 22, 1922, in which its claim for transportation of two destitute seamen from Port Said, Egypt, to Galveston, Tex., in May, 1922, on the steamship Steelmaker, was allowed in the sum of $266.
The allowance was based upon a distance of 6,650 miles and a rate of 2 cents per mile for each seaman.
The contention is made that the allowance should have been in the sum of $268.80, based upon a distance of 6,720 miles.
The certificate made by the consular officer at Port Said, May 2, 1922, and given to the master of the vessel on which the transportation was furnished—which said certificate forms the basis of the claim-gives the distance as 6,650 miles, and the master of the vessel, who must be regarded as the agent of the owners in the transaction, in accepting the certificate must be presumed to have agreed
that the distance, for the purpose of the transportation furnished, was to be regarded at 6,650 miles, as stated in said certificate.
However, the question as to the distance is not material in this case, for the reason that the master agreed to furnish the transportation for the lump sum of $75 ($37.50 for each seaman). In view of that fact the claim of the owners for any amount in excess of $75 must be disallowed.
The law does not provide for the payment of 2 cents per mile in all such cases. It provides for payment of the regular steerage-passenger rate not to exceed 2 cents per mile. As the vessel on which the transportation was furnished was not a regular passenger-carrying vessel, the agreed rate of $37.50 was the only passenger rate on said vessel and must be accepted as the equivalent of the regular steerage-passenger rate authorized under the provisions of section 4578, Revised Statutes, as amended by section 9 of the act of June 26, 1884, 23 Stat., 55, and section 18 of the act of June 19, 1886, 24 Stat., 83.
Upon a review of the matter a difference of $191 is certified in favor of the United States.
The check for $266 issued in accordance with the settlement of June 22, 1922, will be covered into the Treasury to the credit of the appropriation under which it was drawn and a new warrant and check will issue in favor of claimant for $75 in full settlement of the claim.
SUBSISTENCE AND QUARTERS ALLOWANCE-ARMY AND NAVY
OFFICERS DETAILED TO PANAMA CANAL. The subsistence allowance authorized by section 5, act of June 10, 1922, 42
Stat., 628, for officers of the Army and Navy, being payable at all times when they are in a pay status, is a part of their “official salary ” within the meaning of the act of August 24, 1912, 37 Stat., 561, and must be deducted from any salary or compensation to which they may be
come entitled by reason of their detail to duty with the Panama Canal, The rental allowance authorized by section 6, act of June 10, 1922, 42 Stat.,
628, is not payable to officers of the Army or Navy when public quarters are available, and when such officers detailed to the Panama Canal are turnished quarters at that place, no payment of rental allowance is autborized, and is accordingly not deductible as a part of their official
salary from the compensation payable to them by the Panama Canal. Comptroller General McCarl to the Governor, Panama Canal, September 21, 1922:
I have your letter of August 3, 1922, relative to readjustment by the joint-service pay act of June 10, 1922, effective on and after July 1, 1922, of the pay and allowances of officers of the Army and Navy, and in view of such readjustment requesting a decision as to the proper method of payment of officers of the Army and Navy who are detailed for duty with the Panama Canal, and specifically as follows:
1. Whether the commutation of rations authorized by section 5 of the act of June 10, 1922, if drawn by such officer from the Army or Navy disbursing
officer, is to be considered as a part of the salary of such officer and deducted from the pay authorized for the position held by such officer in the Panama Canal service.
2. If the commutation of rations is not drawn by such officer from the disbursing officer of the Army or Navy, should such commutation of rations be taken into consideration in paying the salary due such officer from the Panama Canal?
3. Is the money allowance for rental of quarters authorized by section 6 to be considered as a part of the pay of such officers and deducted from the salary of the position authorized in the Panama Canal service, if such allow. ance is actually drawn from the Army or Navy disbursing officer?
4. If such allowance is not drawn by the officer, is it to be taken into consideration in determining the amount of payment to such officer by the Panama Canal ? In connection therewith you state that,
it is understood that the Army disbursing officer on the Isthmus has declined to make payment to officers detailed with the Panama Canal and who are occupying Panama Canal quarters, of the money allowance for rental of quarters, basing such action on the decision of the Comptroller of the Treasury dated September 15, 1916, 23 Comp. Dec., 181. It further appears, however, that at least two of the naval officers who have been detailed with the Panama Canal have reported that money allowance for rental of quarters would be drawn by them, although such officers are actually occupying Panama Canal quarters.
Section 4 of the act of August 24, 1912, 37 Stat., 561, under which officers of the Army and Navy are appointed or employed by you for duty with the Panama Canal, provides: SEC. 4.
If any of the persons appointed or employed as aforesaid shall be persons in the military or naval service of the United States, the amount of the official salary paid to any such persons shall be deducted from the amount of salary or compensation provided by or which shall be fixed under the terms of this act.
The amount of their “official salary” which you are thus required to deduct from payments to them to be made by you includes allowances. 1 Comp. Gen., 112; MS. Comp. Dec., August 15, 1922, to you.
It is understood that the “commutation of rations” referred to by you in questions 1 and 2 is the money allowance for subsistence authorized to officers of the Army and Navy on and after July 1, 1922, by section 5 of the act of June 10, 1922, 42 Stat., 628.
This allowance being payable to such officers “at all times” and “in addition” to their“ pay” is included in the term “official salary as used in the act of August 24, 1912, and should therefore be included in and form a part of the amount to be deducted by you from the salary or the compensation of the officer for the position held by him in the Panama Canal service, whether payment at the time has been made of the subsistence allowance or otherwise.
Questions 1 and 2 are answered in the affirmative.
The money allowance for rental of quarters to which officers of the Army and Navy on duty with the Panama Canal become entitled under section 6 of the act of June 10, 1922, 42 Stat., 628, is not payable to them“ if public quarters are available” for them. 12 Comp. Dec., 375.
Assuming from your submission that Panama Canal quarters are available for and occupied by the officers who are the subject of your questions, you are advised that no rental allowance accrues to them, and their “official salary" for the purpose of deduction is exclusive thereof.
I may add, however, in response to the specific requests contained in your questions 3 and 4 that in a case, if any, where public quarters are not available and the rental allowance lawfully due and payable it must be considered a part of the official salary of such officer in his Army or Navy position and as such deducted from the salary or compensation authorized and payable to him by the Panama Canal, and this whether such money allowance for rental of quarters has been drawn by the officer or not.
Copies of this decision have this day been forwarded to the Paymaster General of the Navy and the Chief of Finance, War Department, inviting their attention respectively to the fact that officers of the Navy on duty with the Panama Canal for whom Panama Canal quarters are available are not entitled to the rental allowance, and that officers of the Army upon such duty are entitled to the subsistence wilowance.
TERMINATION CONTRACTS—ATTORNEYS' FEES AND COURT COSTS. A provision in a termination contract under which the Government assumes and
agrees to pay any and all obligations and commitments, within specified limits, incurred in the performance of the original contract with a subcontractor, obligat's the Government to pay the net amount of such obligations or commitments, and does not extend to attorneys' fees, court costs, or other expenses incurred by the contractor in defending suits by the
subcontractor to establish the amount due and its right thereto. Decision by Comptroller General McCarl, September 22, 1922:
The Excelsior Motor Manufacturing & Supply Co. applied January 13, 1922, for a review of settlement No. 128187, dated December 8, 1921, in which there was allowed the sum of only $377.50 on its claim for reimbursement of amounts alleged to have been paid by it on account of commitments or obligations to the Allegheny Forging Co.
It appears that by contract No. 5097, dated October 25, 1918, confirmatory of Order 720753, dated October 23, 1918, the Excelsior Motor Manufacturing & Supply Co. undertook to furnish and deliver to the United States certain hinged forgings. After the armistice it was found to be in the interest of the United States to terminate said contract, and accordingly by an agreement entered into April 11, 1919, said contract was terminated and a settlement was made adjusting all rights and obligations thereunder. Article V of the agreement of April 11, 1919, provided :
The Government hereby assumes and agrees to pay any and all obligations and commitments, not to exceed the sum of three thousand dollars, $3,000,
properly incurred by the contractor in the performance of the original contract to the Allegheny Forging Company. In the event that said Allegheny Forging Company shall at any time make any claim or demand against the contractor arising out of the original contract, the contractor will immediately notify the Government of such claim, and will render to the Government all reasonable assistance without cost to the Government in the defense or settlement of such claim.
The Allegheny Forging Co. did make a claim against the Excelsior Motor Manufacturing & Supply Co. in the sum of $2,064.51 on account of commitments or obligations under the original contract and in February, 1920, entered suit in the municipal courts of Chicago for the enforcement of said claim. Thereupon the Government was advised of the suit and requested to defend same. After consultation between the military authorities and representatives of the Department of Justice claimant was advised by the former to have its attorneys defend the suit. Claimant, through its attorney, did defend the suit, and on June 25, 1920, judgment was rendered against it for $278.75, together with costs. Claimant paid the judgment and costs and presented its claim against the Government for $777.50, itemized as follows: Amount of judgment --
$278. 75 Plaintiff's court costs.--
9. 75 Paid by claimant in connection with taking depositions at Pittsburgh. 10. 00 Paid by claimant as filing costs...-
11, 00 Paid by claimant to court reporter.
18. 00 Paid by claimant to attorney for conducting defense..
777. 50 All items claimed have been allowed and paid except the item of $400, representing amount paid by claimant to attorney for services in conducting its defense to said suit, which was disallowed, presumably because of section 189, Revised Statutes, which provides:
No head of a department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice shall call upon the Department of Justice, the officers of which shall attend to the same.
The case here presented does not involve the employment of an attorney or counsel by the head of the department. The suit was not against the United States or any officer thereof, but against the claimant. The Government's only interest in the matter arose from the obligation which it assumed by contracting to pay any and all obligations and commitments, not to exceed the sum of $3,000, properly incurred by the contractor to the Allegheny Forging Co. in connection with the performance of the original contract, and its liability is limited to the amount of such obligations or commitments definitely ascertained.
The provision hereinafter quoted from Article V of the agreement of April 11, 1919, can not be construed as requiring the Government to defend the suit of the Allegheny Forging Co. against the