act, supra, and for the certification of which the officer or employee is required to be bonded, are those upon which moneys are to be paid out by disbursing officers in discharging a debt or obligation of the Government.

Standard Form No. 1097-Revised-ADJUSTMENT VOUCHER TO EFFECT CORRECTION OF ERRORS-the subject of your letter-is just what its title signifies, namely, a document prescribed for use in connection with necessary adjustments in respect of appropriations, funds, limitations, and official project accounts. While the processing of such adjustments, in some instances, may require the drawing of a check by the disbursing officer, such a check would not be for the purpose of paying out moneys in the discharge of a Government obligation. It would be issued in respect of an obligation already paid or liquidated and in nowise would the drawing of such a check result in, or constitute, the paying out of moneys from the United States Treasury. Neither would any other adjustment provided by the voucher form constitute the paying out of any funds from the Treasury. Hence, such vouchers are not of the type or class coming within the purview of the act of December 29, 1941, as amended.

Under the circumstances, the officers or employees certifying the correctness of the adjustment stated on Standard Form No. 1097Revised, are not to be considered as certifying officers, within the meaning of the act of December 29, 1941, supra, or required to be bonded pursuant thereto. Compare decision B-24233, dated March 5, 1942, 21 Comp. Gen. 841, to the Administrator of Veterans' Affairs.

(B-42401)

VEHICLES "JEEPS”-STATUS AS PASSENGER-CARRYING VEHICLES OR TRUCKS

Vehicles officially described as 4-ton 4 by 4 trucks (commonly called "jeeps") are not to be considered as passenger-carrying vehicles within the purview of section 5 of the act of July 16, 1914, prohibiting the purchase of motorpropelled passenger-carrying vehicles unless specifically authorized by law, or as within the purview of appropriations limiting amounts to be expended for passenger-carrying vehicles, and, therefore, no objection will be made to payment for such vehicles-to be obtained from the War Department as surplus-from appropriations available for the purchase of trucks.

Comptroller General Warren to the Secretary of the Interior, June 14, 1944: I have your letter of May 31, 1944, as follows:

This Department has recently been informed that a supply of Army "jeeps" both new and used may soon become surplus to the needs of the War Department and become available for transfer to other departments and agencies of the Federal Government.

Under regulations of the Bureau of the Budget any transfers consummated would involve payment for these jeeps. It is possible that a considerable num

ber of them may be desired by some of the bureaus and offices of the Department for use in fighting fires on public lands and forests, where they could be utilized in hauling both equipment and personnel.

Because of their sturdiness, their unusual power, and their ability to travel over rough terrain the jeep would be particularly desirable for this purpose. It is understood that the vehicle is being used for varied purposes, such as motive power in plowing on farms, etc., and that it was designed as a truck (with truck chassis and engine) to carry a machine gun or other light artillery and operating personnel.

Your decision is requested on the question whether jeeps are passengercarrying cars, the purchase of which would fall within restrictions on the amounts of money which may be expended by the Department and its bureaus and offices for passenger-carrying cars, or whether they may be classified as trucks.

War Department Circular No. 3, dated January 1, 1943, provides under section 2 thereof, as follows:

II. Official nomenclature for matériel.—1. Use in official or technical correspondence of nicknames in lieu of official names for matériel has often caused unnecessary delay and confusion. This is particularly true of vehicles, especially those nicknamed "jeep" or "peep." "Jeep" is loosely used to designate both the 4-ton 4 by 4 truck and the 34-ton 4 by 4 truck, and sometimes other vehicles also. As a result, requests for information on certain vehicles identified only as "jeeps" may be incorrectly filled because "jeep" may mean one thing to the man in the field and quite another to the agency filling the request. The danger of this is evident. At best, careless use of this word can lead (and in some instances has led) to delay and, in the end, to filling the request for all vehicles that might be designated by the word "jeep." The waste of time and money entailed is obvious.

2. Therefore the full official names for all items of matériel, including model numbers where necessary, will be used exclusively in all technical and official correspondence. Nicknames will not be used in such correspondence.

In view of the above circular, it cannot be stated whether a vehicle designated as a "jeep," without anything more, is a truck or a passenger-carrying vehicle. However, it appears that that term is most commonly applied to the vehice officially designated as 14-ton 4 by 4 truck. In decision of April 20, 1943, B-30391, it was stated, in pertinent part, as follows:

The letter of May 6, 1942 [from Chief of Transportation, War Department] referred to in the above quotation states in pertinent part that

* * these so-called 'Jeeps' are made and constructed for the Army under a certain Federal Specification for Trucks, motor, Gasoline (Four WheelsFour Wheel Drive). The trucks described in this specification are intended for use as tactical trucks by the United States Army. They are required to transport the rated pay-load, which consists of military supplies and equipment, over all types of roads, trails, open and rolling cross country, under all conditions of weather and terrain, while at times towing a trailed load, such as a 37 mm. anti-tank gun, and all units and assemblies in the truck must be suitable for such use. These vehicles (Jeeps) are part of a group of tactical trucks designed and procured especially for military service and include such truck features as drive, both front and rear axles, standard wiring and lighting, fuel and radiator tank filler, instrument board controls, as well as military truck features such as towing hooks on front, pintle on rear, and brackets for mounting shovel and axe on side of the body.

In the instant case it would seem to be established that the 4 ton 4 x 4 truck is essentially a freight vehicle and the fact that there may be an auxiliary seat in the cargo body does not appear to make a distinction with transportation significance so as to justify classifying the subject trucks as passenger vehicles. In other words, the application of the rating for passenger vehicles on the subject shipment would seem to rest upon nothing more than the possible convenient

use of the vehicles to transport personnel. It is well known that commercial trucks are frequently used for the same purpose and apparently without effect upon their transportation status as freight vehicles.

Assuming that your submission has reference to the vehicles officially described as 14-ton 4 by 4 trucks such vehicles will not be considered by this office as passenger-carrying vehicles within the purview of section 5 of the act of July 16, 1914, 38 Stat. 508-prohibiting the use of any appropriation for the purchase of motorpropelled passenger-carrying vehicles for any branch of the Government unless such use is specifically authorized by law-or within the purview of appropriations limiting the amounts which may be expended for passenger-carrying vehicles. Hence, payment for such vehicles from appropriations available for the purchase of trucks will not be objected to by this office if otherwise proper. 16 Comp. Gen. 320.

(B-42338)

TAXES STATE - GASOLINE - REIMBURSEMENT UNDER CONTRACT PROVIDING FOR PRICE "EXCLUSIVE OF ANY AND ALL TAXES" Even though its contract for service station deliveries of gasoline to a post office in Maryland provides that the price stipulated therein is "exclusive of any and all taxes," a contractor is not entitled to reimbursement for the Maryland gasoline tax-the legal incidence of which is on the vendor and which vendors are required to pay on gasoline sold in that State to or for the use of the United States on and after April 1, 1944, except under circumstances not here involved in the absence of a provision in the contract for payment of an amount equivalent to the tax in addition to the price otherwise fixed.

A misapprehension by a contractor and a Government contracting officer as to the legal effect of the terms of the Maryland taxing statute, insofar as the question of their applicability to gasoline sold under the contract involved was concerned, must be regarded as a mutual mistake of law for which this office is not required or authorized to grant relief.

Comptroller General Warren to the Postmaster General, June 16, 1944:

Reference is made to your undated letter, received in this office May 29, 1944, as follows:

There is transmitted a file of papers relative to the imposition of the state tax by the State of Maryland upon purchases of gasoline made by agencies of the Federal Government, and an invoice submitted by R. E. Barrett to the Postmaster at Silver Spring, Maryland, under date of May 4 in the amount of $12.64, which is in claim for Maryland state taxes on 316 gallons of gasoline. A copy of the contract with R. E. Barrett was transmitted to the Postal Accounts Division by the Fourth Assistant Postmaster General under date of March 30, 1944, Sheet No. 15.

In order that the Post Office Department appropriations may be properly expended, a decision will be appreciated as to whether the Postmaster at Silver Spring, Maryland, is authorized to expend Government funds in payment of the Maryland state tax where the payment of such tax was not originally made a part of the contract.

An early reply will be appreciated so that the proper action can be taken with regard to the payment of state taxes under other contracts made for furnishing gasoline to Post Offices in the State of Maryland.

The particular contract to which you refer consists of the bid dated March 14, 1944, of R. E. Barrett and the Government's acceptance thereof dated March 22, 1944. Under the terms of said bid R. E. Barrett agreed to furnish service station deliveries of a certain type of gasoline to the United States Post Office at Silver Spring, Maryland, during the quarter ending June 30, 1944, at a price of 13-2/10 cents per gallon, it being further stipulated therein that "The above quotation is exclusive of any and all taxes."

Among the papers accompanying your letter were copies of certain regulations dated March 18 and April 15, 1944, of the Comptroller of the Treasury of the State of Maryland relative to the applicability of the terms of the Maryland Motor Vehicle Fuel Tax law in respect to motor vehicle fuel sold to agencies of the United States and a copy of an opinion dated December 27, 1943, of the Attorney General of Maryland, wherein the view is expressed that the legal incidence of the tax prescribed by that law is on a dealer.

The said regulations require the payment by motor vehicle fuel dealers in Maryland of the tax in connection with all fuel sold within the boundaries of that State on and after April 1, 1944, to agencies of the Federal Government except (1) where the fuel is sold for delivery on a Federally-owned area over which the United States has jurisdiction, (2) where the fuel is delivered from points outside the State into storage facilities under the control of the United States, and (3) where the fuel is sold to the War and Navy Departments and a certificate is executed by the procuring officer that the fuel may not "under existing rules and procedures, be used in motor vehicles as defined in the motor vehicle fuel tax law"; also, the said regulations provide that the United States may apply for and obtain refunds in the same manner as other consumers in cases where tax-paid motor vehicle fuel is used for non-taxable purposes.

It appears from an examination of the Maryland Motor Vehicle Fuel Tax law that the legal incidence of the tax prescribed thereby is upon a vendor-that is, a dealer; and the tax is not to be regarded as being passed on, as such, to a vendee because the purchase price of the fuel involved in a particular case includes an amount representing a charge on account of the tax. Hence, since, as was pointed out in my decision of June 15, 1944, to you, B-42427, the language used by the Supreme Court of the United States in its opinion in the case of Alabama v. King and Boozer, 314 U. S. 1, leaves no room for doubt that a vendor who sells supplies to the United States is not-merely because of the immunity of the Federal Government from State taxation-exempt from the payment of a State tax unless the legal incidence of the tax is upon the vendee (cf. 21 Comp. Gen. 733, 843, 1119), it must be concluded that payment of the amount of the Maryland motor vehicle fuel tax legally may be required of a dealer furnishing gasoline in that

State on or after April 1, 1944, to or for the use of the United States, unless the transaction is a sale of the type specifically excepted from the operation of the State taxing statute by the above-mentioned regulations. However, it does not follow that a dealer is entitled to payment of an amount equivalent to the applicable tax in a case where, as here, the contract involved provides for the furnishing of gasoline at a price exclusive of a charge representing a tax, for such a theory completely ignores the fundamental rule that valid contracts are to be enforced and performed as written and that the fact that supervening or unforeseen causes render performance more burdensome or less profitable, or even occasion a loss, is not sufficient to excuse performance or to entitle a contractor to additional compensation. In other words, a claim by a Government contractor for an amount required to be paid by him on account of the Maryland motor vehicle fuel tax and which was not included in his quoted prices is no different from a claim by him for the payment of any other item of expense or cost which was not included in such prices. And, even though the matter be viewed in the light most favorable to a dealer and it be assumed that he and the persons who acted in behalf of the Government in connection with the execution of a particular contract misapprehended the legal effect of the terms of the Maryland taxing statute, insofar as the question of their applicability to gasoline sold under the said contract was concerned, it is obvious that such misapprehension must be regarded, at most, as a mutual mistake of law for which this office is not required or authorized to grant relief.

The question as to when and how far a court will go in granting relief from a mutual mistake of law was clearly presented and considered by the Supreme Court of the United States in the case of The Bank of the United States v. Daniel, et al., 12 Pet. 32, wherein the court stated the principle involved in that case in these words:

The main question on which relief was sought by the bill; that on which the decree below proceeded, and on which the appellees rely in this Court for its affirmance; is, can a court of chancery relieve against a mistake of law?

and after a discussion of the evidence, and a reference to the confusion created by numerous and conflicting decisions, the Court reaffirmed its decision in Hunt v. Rousmaniere's Adm's., 1 Pet. 1, and concluded with this language:

Testing the case by the principle, "that a mistake or ignorance of the law, forms no ground of relief from contracts fairly entered into, with a full knowledge of the fact;" and under circumstances repelling all presumptions of fraud, imposition, or undue advantage having been taken of the party; none of which are chargeable upon the appellants in this case; and the question then is, were the complainants entitled to relief? To which we respond decidedly in the negative.

Applying the foregoing rules to the circumstances in the instant case, and since there is nothing to indicate that any fraud, imposi