GATES AND WINDOW GUARDS FOR PHILADELPHIA MINTWHETHER CONTINGENT EXPENSES.

The appropriation "Contingent expenses, mint at Philadelphia, 1923," is not applicable to the payment of the expense of installing at the mint certain gates and window guards for the protection of coin and bullion stored therein.

Comptroller General McCarl to the Secretary of the Treasury, March 6, 1923: I have your letter of February 28, 1923, requesting decision whether the appropriation "Contingent expenses, mint at Philadelphia, 1923," is available for payment of the expense of installing at the said mint certain gates and window guards for the protection of coin and bullion stored in the mint.

The Philadelphia Mint is a public building under the control of the Treasury Department, and the expense of its proper equipment for mint purposes is a matter to be cared for under the public buildings appropriations. It is suggested, however, that there are no funds in the public building appropriation available for the expense of installing the proposed protection at this mint, and that the publicity given to the large number of attacks on property cause an emergency which justifies the use of the contingent appropriation of the mint for protection of the coin and bullion in the mint.

The said appropriation provides "For incidental and contingent expenses, including new machinery and repairs," and for certain other items of expense specifically enumerated which do not include or cover the expense of the proposed installation of gates and window guards.

It is clear that this appropriation does not contemplate or provide for the expense of equipment or structural additions to the building itself, nor does it appear that the emergency suggested would warrant its use for that purpose. The question of emergency is one for consideration in connection with the administration of the public buildings appropriation.

TRANSPORTATION CHARGES ON ILLEGAL SHIPMENTS.

The lawful seizure by Federal prohibition agents of an unlawful shipment of alcohol at its destination did not render the Government liable for the transportation charges thereon.

Decision by Comptroller General McCarl, March 6, 1923:

The American Railway Express Co. applied January 8, 1923, for review of the action of this office in disallowing by settlement No. T-237, dated December 30, 1922, its claim for $16.70 express charges on alcohol shipped from New York, N. Y., to St. Paul, Minn., and seized at its destination by Federal prohibition agents upon information furnished by an agent of the express company.

The seizure of the alcohol was lawful and imposed upon the Government no legal liability for payment of the express charge.

The shipment itself was unlawful, and while the circumstances may be such as to relieve the express company of responsibility for the violation of law, the unlawful shipment can furnish no basis for a transportation charge against the United States.

Upon a review of the matter no difference is found and the settlement is sustained.

WITNESSES IN STATE COURTS-EMPLOYEES OF BUREAU OF INTERNAL REVENUE.

Employees of the Bureau of Internal Revenue summoned to attend proceedings in a State court as witnesses in the trial of a defendant for the murder of a Federal prohibition agent are not entitled to reimbursement from Government funds for traveling expenses or subsistence, nor may they be paid their salary while so absent from duty unless they are entitled to annual leave and such absence is charged thereto.

Comptroller General McCarl to the Secretary of the Treasury, March 8, 1923: There was received by your direction a letter of February 27, 1923, from the Commissioner of Internal Revenue, as follows:

For your consideration_there is inclosed a memorandum dated February 23, 1923, from Mr. James E. Jones, Assistant Prohibition Commissioner, to the Deputy Commissioner of Accounts and Collections, this bureau, requesting an advance decision relative to the matter of a prohibition director and two Federal prohibition agents attending trial as witnesses in the case of the State of Nevada vs. R. F. Raine and John Brite, in connection with the alleged murder of a former Federal prohibition agent.

The question at issue is:

(1) Should said agents while attending as witnesses be considered on official business and have their salaries and expenses paid from the appropriation "Enforcement of narcotic and national prohibition acts, internal revenue, 1923," or

(2) Should they be considered in a nonpay status and receive reimbursement for the customary witness fees and expenses from the court, or

(3) Should they be considered in a leave with pay status, charging the time of such attendance to their annual leave, and receive reimbursement from the court only for their travel and subsistence expenses?

Your early decision in this matter is respectfully requested.

It appears that Federal Prohibition Director J. P. Donnelley, Reno, Nev. and Federal Prohibition Agents P. E. DuBois and Percival Nash will attend the case of State of Nevada v. R. F. Raine and John Brite on the charge of murder in connection with the death of former Federal Prohibition Agent Atha Carter, caused by gunshot wounds; that the case will come to trial in the State court at Eureka, Nev., sometime during the month of March; and that Messrs. Donnelley, DuBois, and Nash will attend the trial as witnesses.

These witnesses apparently are called upon to attend a session of a State court in obedience to a summons, the same as other private citizens of the State are required to do under the circumstances, giving their time to the State and receiving therefrom the compensation provided by State law for such services. During the period in which they are required by the State to be present they perform no

direct service for the Federal Government and no payment of salary, traveling expenses, or subsistence may be made to these witnesses. Thus your first question is answered in the negative. As to questions 2 and 3 concerning the employees being placed in nonpay or pay status, you are advised that said persons can not receive any payment for salary from the United States for the time of attendance upon said State court urless the time be allowed for authorized annual leave.

DISBURSING CLERK, GOVERNMENT PRINTING OFFICE, DATE DUTIES OF EFFECTIVE.

The provision in the act of February 20, 1923, 42 Stat. 1277, that the disbursing clerk of the Government Printing Office originally authorized by means of an appropriation therein for such a position for 1924-" hereafter shall be charged" with the receipt and disbursement of all moneys for said office, does not become operative prior to the effective date of the appropriation for the position, July 1, 1923.

Comptroller General McCarl to the Public Printer, March 9, 1923:

I have your letter of February 26, 1923, as follows:

Public Act No. 431, 67th Congress, which provides an appropriation for the Government Printing Office for the fiscal year 1924, specifies—

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* disbursing clerk, $2,500: Provided, That the disbursing clerk of the Government Printing Office hereafter shall be charged with the receipt and disbursement of all moneys for said office in accordance with the provisions of law relating to the Public Printer and other disbursing officers of the Government, under such bond and rules as the Secretary of the Treasury shall prescribe; and thereafter the Public Printer shall give a bond in the sum of $25,000 for the faithful performance of his duty;

*

The appropriation act for the current fiscal year does not provide for a disbursing clerk in the Government Printing Office; the Public Printer is his own disbursing officer and is bonded at $100,000.

The question arises as to whether the words "hereafter shall be charged," which appear in above quotation of the appropriation act for 1924, shall be construed as becoming effective upon approval of the act (February 20, 1923) or upon the beginning of the fiscal year 1924.

Your decision on this matter is requested.

The proviso quoted in your letter relates to a specific appropriation made for the fiscal year 1924 and I think it must be held that it can have no application until said appropriation becomes available. No provision is made for a disbursing clerk for the Government Printing Office during the fiscal year 1923, the duties and responsibilities incident to the disbursement of moneys for said office during said fiscal year devolving by law upon the Public Printer. The evident purpose of the word "hereafter" as used in the proviso is to indicate the permanent character of the legislation rather than the date it is to become effective. It is a well-established rule of construction that provisions in an annual appropriation act are to be construed as effective from the beginning of the fiscal year for which the appropriations therein are made, unless an intent that they are to be effective from a different date is clearly

indicated. No such intent is indicated in the case here presented. Accordingly, you are advised that the provision in question will become effective July 1, 1923, and not prior thereto.

CONTRACTS TERMINATION IN THE INTEREST OF THE UNITED STATES.

When a contract for the transportating and loading of a large quantity of materials at a specified rate per ton is terminated in the interest of the Government after only a small portion of the work has been performed the contractor is entitled to be paid the reasonable value of the services rendered, taking into consideration the changed conditions.

Decision by Comptroller General McCarl, March 9, 1923:

W. Parker Seely, as trustee in bankrupcy of Donald G. Holmes, applied July 14, 1922, for review of settlement No. W-825041 of June 28, 1922, wherein claim of the said Donald G. Holmes for $7,707 was disallowed, the claim being, in substance for damages for breach of contract of February 25, 1920, by and between the United States and Donald G. Holmes, for transporting and loading "the Government property located at the Penn Seaboard Co., New Haven, Connecticut," and the disallowance being in substance, for the reason that the contract had not been breached and that the contractor had been paid thereunder all to which he was legally entitled.

The facts appear that the War Department had at the Penn Seaboard Corporation property of various kinds, such as coal, sand, brick, steel, etc., of the estimated weight of between four and five thousand tons, which it contemplated storing; that on such basis bids were solicited which resulted in an award to Donald G. Holmes, as evidenced by contract of February 25, 1920, article 1 of which provided that "The contractor will properly transport & load in the manner directed by a duly authorized representative of the United States, the Government property located at the Penn Seaboard Co., New Haven, Connecticut," and article 2 of which provided that "From time to time, upon the certificate of a duly authorized representative of the United States showing approval of work performed hereunder, the United States will pay to the contractor, as full compensation for such work, $1.50 per net ton." Subsequently, about April 8, 1920, instead of storing all material, etc., as originally planned, the major part thereof was sold by the Government in place as is," the purchaser or purchasers to remove the same at their own expense. The contractor, Holmes, held himself in readiness to remove the total quantity of material, etc., contracted to be removed and entered into engagements for facilities, labor, etc.; but the contractor was required and permitted to remove approximately only 813 tons, and being paid for only that quantity at the

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rate of $1.50 per ton, submitted that he was damaged to the extent of the amount of the claim disallowed.

As to the alleged damages, the contractor, in a communication dated November 18, 1920, and addressed to the "U. S. Salvage Board, Cont. Dpt.," furnished, in detail, a description of the materials removed under the contract; the amounts paid therefor by the Government, total $1,218.93; the cost to him of such removals total $1,641.39; and the rates per ton, varying according to the character of the material, and the total, $2,185.27, being, as stated, the estimated fair value of the work on the basis of hauling only 813 of the number of tons contemplated by the contract. On this basis the actual loss was $422.46. After this detailed statement appears a note reading:

Since entering into this contract I have been to New Haven approximately 64 times to look after the work and to take my men up and bring them back. Figuring the use of the car and my time, this would amount to about $15.00 per trip, or $960.00. I bought a conveyor for $1,000.00. The best price offered so far for same is $600.00. It cost me $70.00 to haul it up there and back, and $22.00 for repairs, which I figure is a loss of $492.00 on conveyor. On account of rain I have been unable to do work, but still had to pay my men for showing up. I have had them get work ready when there were no shipping orders, and this cost me approximately $200.00. Getting cars placed, and incidental expenses, amounted to $50.00.

The elements of cost, etc., making the total of $1,641.39 are not stated, but it appears that the items in the note, in part at least, are included in such total.

In a communication dated June 26, 1922, the contractor states the items of damage, etc., as follows:

($300 less than shown in communication of Nov. 18, 1920.) Use of automobile:

Preparing for execution of contract and supervision of work actually done, 64 trips from Bridgeport to New Haven Conn., @ $15 per trip_‒‒‒

Same as in communication of Nov. 18, 1920.)

Idle time of gangs:

Employment of gangs of men engaged and paid but who performed no work by reason of the modification of the contract (stated as $200 in communication of Nov. 18, 1920). Loss as detailed in communication of November 18, 1920: (Given as $422.46 in communication of Nov. 18, 1920). Coal and sand:

$192.00

960. 00

700.00

422. 36

"There was at the plant 3,000 tons of coal and sand which my contract contemplated loading and which would have been accomplished by me at a cost of 30¢ per ton. I, therefore, claim as damages $1.20 per ton for this 3,000 tons, or the sum of " 3, 600. 00 (This item not included in communication of Nov. 18, 1920. Itemized statement in communication of Nov. 18, 1920, shows contractor removed and loaded over 101 short tons of coal screenings; was paid $1.50 per ton therefor; claimed to have cost him $1.75 per ton to remove and load.)