negatives the allowance of mileage for parts of journeys and actual and necessary expenses for the remainder where repeated travel is involved. If actual and necessary expenses are authorized there can be no right to mileage for any portion of the repeated travel covered by the order.

It is also in this sense that the word "only" is used in the provision for actual and necessary expenses for travel outside the limits of the United States in North America, away from designated posts of duty.

Under such conditions the statute prescribes a limit of reimbursement of $7 per day for actual and necessary expenses of subsistence, but authorizes the heads of the departments concerned to prescribe, in lieu of reimbursement of actual and necessary expenses for subsistence not exceeding $7 per day, a per diem in lieu of subsistence not exceeding $6.

By the last-quoted provision the limitations of $7 per day for actual and necessary expenses of subsistence and $6 as a per diem in lieu of subsistence are established for officers of the services mentioned in the act in place of the limitations of $5 and $4, respectively, prescribed in the acts of April 6, 1914, 38 Stat., 318, and section 13 of the act of August 1, 1914, 38 Stat., 680, for all other officers and employees of the Government generally when traveling on official business. Under these latter statutes, travel is referred to as "on an actual expense basis" or as on a per diem basis," this latter term indicating that all expenses incident to subsistence are covered by the per diem authorized in a particular case, but transportation expenses of the travel are separate there from and reimbursable.

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So, also, under the provision of section 12 in question a per diem not exceeding $6 may be prescribed in lieu of reimbursement of the actual and necessary expenses of subsistence for travel away from designated posts of duty, both for repeated travel and for travel outside the limits of the United States in North America.

You are accordingly informed that you are authorized to prescribe a per diem in lieu of subsistence not exceeding $6 for officers traveling on official business under conditions or orders entitling them under section 12 of the act of June 10, 1922, to reimbursement of actual and necessary expenses.

BURIAL OF DECEASED AMERICAN SEAMEN.

When the body of an American seaman-other than a discharged, disabled, or destitute seaman-who died in a foreign country is claimed by a relative financially able to provide a decent burial the United States is without liability in the matter, and the appropriation for relief and protection of American seamen is not available for the burial expenses of such seaman. Comptroller General McCarl to the Secretary of State, August 4, 1922:

I have your letter of July 19, 1922, with inclosures, requesting decision whether the United States consular service is liable for the burial expenses of a deceased seaman under the following cir

cumstances:

The seaman in question was an American citizen serving on the American steamship Deuel. He lost his life in attempting to jump from the dock to his vessel on return from shore leave while the vessel was in port at Montreal, Canada. The body was recovered from the water and taken to the city morgue. The master of the vessel reported the matter to the American consul general, who dispatched a telegram to Mrs. Mary Neville, the mother of the seaman, at Boston, Mass., requesting instructions as to the disposition of the remains. Mrs. Neville replied that she would come to Montreal. Pending her arrival the consul general made arrangements for Joseph C. Wray & Bro., undertakers in Montreal, to take charge of the body. Mrs. Neville was not satisfied with the casket which had been selected by the consul general, and arranged for a more expensive one, paying to the undertakers the additional cost thereof, amounting to $50. She accompanied the remains to Boston for interment. The owners and operators of the vessel refused to assume any responsibility for the expenses incident to the burial, and the undertakers have presented a bill for $154 to the consul general for payment. No information has been furnished this office as to what disposition was made of the seamen's effects and the wages Idue him at date of death.

At the time of the accident which resulted in this seaman's death he was a member of the crew of the vessel and not a discharged, disabled, or destitute seaman entitled to relief through the American Consular Service, and after death his remains were claimed by a relative who apparently was financially able to provide for decent burial. Therefore the consul general was without authority to enter into any arrangement purporting to obligate the United States to assume any expense incident to preparation of the remains for burial. The disposition of the remains was a matter for consideration by the master of the vessel, the city authorities, and the relatives of the seaman, and the question as to payment of the expenses of such disposition was for adjustment between them and the undertakers. The appropriation "Relief and protection of American seamen is not available to pay the undertaker's bill in this case.

PURCHASES IN OPEN MARKET-HOWARD UNIVERSITY.

The provision regarding open market purchases not in excess of $50 by bureaus and offices of the Department of the Interior in the act of May 24, 1922, 42 Stat., 553, is not applicable to the Howard University, as that university is not a bureau or office of that department.

Comptroller General McCarl to the Secretary of the Interior, August 4, 1922: I have your letter of July 25, 1922, reading:

I transmit herewith copy of a letter from the Secretary-Treasurer, Howard University, calling attention to the paragraph in the act making appropriations for the Department of the Interior for the fiscal year ending June 30, 1923, approved May 24, 1922, which provides that:

"The purchase of supplies and equipment or the procurement of services for the bureaus and offices of the Department of the Interior at the seat of Government hereafter may be made in open market, in the manner common among business men, when the aggregate amount of the purchase does not exceed $50," and inquiring as to whether this paragraph is applicable to appropriations for the Howard University.

At the time the department estimates were submitted the paragraph above mentioned was included therein and was intended to be applicable to all of the appropriations under this department at the seat of Government. The appropriations for Howard University are estimated through this department and are placed upon the books of the Treasury Department as being under this department. All contracts for material and supplies as well as construction work paid for out of the Federal appropriations are authorized or approved by the Secretary of the Interior.

It is believed that the paragraph in question is applicable to the appropriations of the Howard University, but before giving specific instructions in relation thereto I have to request an opinion from you upon the subject.

The paragraph in question, 42 Stat., 553, is not applicable to the appropriations of the Howard University because the said university is not a bureau or an office of the Department of the Interior. 11 Comp. Dec., 447; 12 id., 412; 23 id., 737.

CONTRACTS INCREASED COSTS.

A contract to construct a certain plant according to plans and specifications prepared by the contractor constitutes an undertaking that the plant so constructed will perform the services required, and if changes are found necessary in the specifications in order that the plant will perform the services required the expenses of such changes must be borne by the contractor. Comptroller General McCarl to Maj. S. C. Godfrey, United States Army, August 5, 1922:

I have your letter of June 3, 1922, inclosing request of the district engineer, Detroit, Mich., for an advance decision as to the legality of the proposed payment as set forth in the accompanying voucher E. D. 126784/42, signed by the payee and approved by you for increased cost incurred by the Independent Bridge Co., contractor for the construction of an emergency dam at St. Marys Falls Canal, in the sum of $2,552.

The district engineer reported to the Chief of Engineers as follows: 1. The contract dated July 20, 1920 (E. D. 126784/42), with the Independent Bridge Co., under which the emergency dam at St. Marys Falls Canal is now

being constructed, provides for payment at unit prices for the materials concerned in building the structure, and for a lump sum price for the power plant consisting of boiler, engines, etc. (class E).

2. The requirements regarding power plant are stipulated in paragraph 39 of the specifications, as follows:

Power plant.-This shall consist of two hoisting engines, each having capacity to lift the wicket bridge, weighing approximately 60 tons, and place it in position, and two separate slewing engines. Each main engine should have one drum for main hoist, one for boom falls, and one for auxiliary hoist to handle wickets and needles. The hoisting engines should have cylinders not less than 10 inches diameter by 12 inches stroke, and the slewing engines cylinders not less than 7 inches diameter and 10 inches stroke, operating through a bull wheel about 16 feet in diameter. Cable should be 7-inch or 1 inch diameter, so reeved that the boom falls will have not less than 20 parts and the main hoist not less than 8 parts. Steam shall be supplied by a single boiler of approximately 150 horsepower. Proper concrete foundations shall be provided for the plant.

3. The contractor is required to furnish all detail and shop plans. In preparing the detail plans it was found that certain necessary changes in the general dimensions of the wicket bridge. the heaviest member to be lifted, increased its weight by some 15 tons. This necessitated an increase in the size of the engines to the end that they should be capable of handling a load of at least 75 tons instead of 60 tons as contemplated by the specifications. It was considered, as well, that inasmuch as both the main engines would not be required to operate at full capacity at the same time, the boiler plant could safely be reduced to 100 horsepower in place of 150 horsepower as originally specified. 4. Included in the power plant item (class E) under a lump sum price, was a winch truck running on the operating bridge to place the wickets. This winch was originally specified to be able to exert a 5,000-pound pull on single cable. Later consideration of the forces to be involved in lowering wickets to position led to the conclusion that a winch should be installed capable of exerting a pull of 10,000 pounds.

10. At the time of the initial exchange of correspondence in this matter (contractor's letter of November 13, 1920. and my response of December 1. 1920-both quoted above), it seemed equitable, as is likewise the present view. that the contractor be reimbursed for the additional expense concerned with power, etc., to handle a wicket bridge of 75 tons instead of "approximately 60 tons," and to provide winch and cables for 10.000-lb. duty instead of 5,000-lb. as specified. On the other hand, my uncertainty as expressed in third paragraph of letter of December 1, still obtains respecting the strictly legal obligation. The contractor bid a lump sum for "class E-power plant." required to handle satisfactorily all elements of the emergency dam of the general weights and dimensions stated, to be placed where indicated, and to perform the functions described. Whether the fact that after detailed design the necessity for a greater weight in the wicket bridge, and the greater pull on winch and cable than specified, creates a "legal obligation" for payment of an additional sum if heavier winch and cable and for the greater power than estimated, or whether the obligation of the contractor was complete for furnishing at the lump-sum bid whatever power, etc., was required, is the occasion for my uncertainty as to the "legal obligation." On the other hand, there can be no reasonable doubt that, in formulating his bid, he figured on power, etc., to accord with the duty of lifting "approximately 60 tons," and on winch and cable to accord with a 5,000-lb. pull, and that he was subjected to the increased costs stated by him in providing the more costly elements which detail design developed to be requisite. Thus the equities appear to me to be clear.

It is shown that the increased cost of the work occasioned by the changes amounts to the sum of $2,552. It is understood that the extra work at the increased cost has been largely or entirely performed and under such circumstances that it could not be covered by supplemental agreement. See 24 Comp. Dec., 407.

It is shown that the contractor undertook to build and construct a power plant consisting of boiler, engines, etc., for a lump sum. It

is also shown that according to the terms of the contract the contractor was to furnish all detail and shop plans.

Inasmuch as the contractor was required to furnish all detail and shop plans and build the power plant for a lump sum it follows that there was an implied agreement on its part that the power plant would, if constructed according to detail and plans as prepared by it, render adequate service.

It is shown that the increased cost of the work was occasioned by certain changes that were necessary. In other words, it appears from the facts submitted there was an error in the original plans and details of the power plant, and that the power plant if it had been constructed according to the plans and details submitted would not have performed the service required and for this reason it was necessary that certain changes should be made and heavier machinery used.

The contractor having agreed for a lump sum to build a certain plant according to plans and details prepared by it must be understood as undertaking that said plant will perform the services required and if any changes must be made in the specifications in order to make the plant perform the services required the expenses of such changes must be borne by the contractor.

So also, it is a rule of law that where it is impossible to determine whether work performed by the contractor was within or was in excess of the obligation of the contract the presumption of law is that it was required by the contractor, and the burden of proof is therefore on the contractor to show the excess, if any existed. Crocker, Davidson & Co. v. United States, 21 Ct. Cls., 255. The evidence submitted in this case is not sufficient to overcome that legal presumption.

Upon the facts presented, the payment of the voucher is not authorized.

FEDERAL PERSONNEL-TRANSPORTATION ON AMERICAN

VESSELS.

Regulations issued in the interest of the United States requiring officials or employees of the Department of State to travel on vessels flying the American flag in all cases where such vessels are operating on regularly established routes, if not limited to a particular American vessel to the exclusion of other American vessels sooner departing, will entitle the traveler to reimbursement for the actual expenses so incurred, notwithstanding that it may be in excess of the cost of travel performed on a foreign vessel having a cheaper rate or an earlier sailing date. Comptroller General McCarl to the Secretary of State, August 5, 1922:

I have your letter of July 18, 1922, inclosing a copy of certain correspondence between the State Department and the Coordinator of Traffic relative to the promulgation by the State Department of a regulation requiring that all orders directing travel issued to