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Under the terms of the said agreement the claimants leased to the United States the entire second floor of a certain building in the city of New York "for the term of five years and four months commencing on the first day of October in the year one thousand nine hundred and nineteen, and terminating on the thirty-first day of January in the year one thousand nine hundred and twenty-five at a yearly rental of $22,000, said rental to be paid monthly in equal payments on the last day of each month.

With reference to termination of the lease the agreement provided: It is stipulated and agreed that this lease may be terminated by the lessee at the end of the current or any succeeding Government fiscal year thereafter, during the term of this lease, in the event that Congress should fail to make appropriation for payment of rental for the ensuing fiscal year, it being expressly understood that lessee's liability hereunder is limited to successive fiscal years as such appropriations become available.

By letter dated May 11, 1920, the Commissioner of Internal Revenue notified the lessor that owing to the consolidation of the office of the collector for the third district with the office of the collector for the second district on February 1, 1920, it was deemed advisable to terminate the lease now under consideration at the close of the fiscal year 1920, and that accordingly said lease would be terminated and canceled effective June 30, 1920.

Claimants contend that the lease was for a fixed period, which does not expire until January 31, 1925, and that since an appropriation for the Internal Revenue Service was made for the fiscal year beginning July 1, 1920, the surrender of the property on June 30, 1920, and the failure to pay rent therefor after said date constituted a breach of the lease agreement, on account of which the Government is liable in damages.

Section 3732, Revised Statutes, provides that no contract on behalf of the United States shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments in certain cases.

There is no general law authorizing the Commissioner of Internal Revenue to enter into a lease agreement on behalf of the United States. Hence the only authority of law for the agreement made in this case is the provision in the annual appropriation act of March 1, 1919, 40 Stat., 1233, which appropriates for "salaries and expenses of collectors of internal revenue rent of offices outside of the District of Columbia * and other necessary expenses in collecting internal-revenue taxes." This provision constitutes the sole authority of law under which the commissioner acted in making the lease agreement now under consideration and said provision does not authorize the making of a lease for any period beyond June 30, 1920. In this connection attention is invited to section 3679, Revised Stat

utes, as amended by the act of March 3, 1905, 33 Stat., 1257, and the act of February 27, 1906, 34 Stat., 48, which contains a provision as follows:

No Executive Department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law.

Since the Commissioner of Internal Revenue exceeded his authority in attempting to make a lease for five years and four months, the legal effect of the agreement was to bind the United States only for the period from October 1, 1919, to June 30, 1920, with an option from year to year until the end of the term. Hence, the termination of the lease at the close of the fiscal year 1920 did not constitute a breach of contract on the part of the United States and can not be made the basis of a claim for damages. Chase v. United States, 155 U. S., 489; M'Collum v. United States, 17 Ct. Cls., 92; Reed Smoot v. United States, 38 Ct. Cls., 418.

The action of the auditor in disallowing the claim is affirmed.

STENOGRAPHERS TO JUSTICES OF THE SUPREME COURT OF THE
DISTRICT OF COLUMBIA.

As the stenographers authorized for each justice of the Supreme Court of the District of Columbia are appointed by the court generally without mention of the justice to whom they may be assigned, the termination of the tenure of the office of a justice by death or otherwise does not also terminate the tenure of the position of the stenographer assigned to that justice, but the stenographer may continue to hold the position until the appointment of an official successor.

Comptroller General McCarl to the Attorney General, July 12, 1921:

I have your letter of June 24, 1921, addressed to the Comptroller of the Treasury, as follows:

In order that proper instructions may be given to the disbursing clerk of this Department, your opinion is requested as to whether payment may be authorized, covering the salary of Miss Margaret C. Kroll, as stenographer of the Supreme Court of the District of Columbia for the period of actual service following the death of Justice Gould, for whom she rendered service until May 20, 1921.

The authority of law for stenographers to the Justices of the Supreme Court of the District of Columbia is contained in the annual legislative, executive, and judicial appropriation act, the appropriation for the current year appearing on page 482 of the Digest, and reading as follows:

"Salaries, Supreme Court, District of Columbia, 1921. Supreme Court, District of Columbia: Chief Justice. $8,000; five associate justices, at $7,500 each; six stenographers, one for the chief justice and one for each associate justice, at $1,100 each; in all, $52,100, one-half of which shall be paid from the revenues of the District of Columbia.-Legislative Act May 29, 1920." 41 Stat., 687.

The decision of your office pertaining to the termination of the services of stenographers to justices of the Supreme Court of the United States, 4 Comp. Dec., 358, does not appear to be altogether applicable to the conditions existing in the present case, as Miss Kroll was appointed by the Court, and not by Justice Gould. There is transmitted herewith a copy of the order of appoint

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ment, and also a copy of a letter from the Clerk of the Court, urging that payment be made for the period of actual service after the death of Justice Gould, pending the induction into office of Justice Hoehling.

It is shown to have been the practice of the court to appoint the stenographers thus appropriated for as stenographers of the court generally without mention of the justice to whom they may be assigned. This practice is warranted by the terms of the appropriation. Having been appointed by the court a stenographer of the court, Miss Kroll continued to hold that position, notwithstanding the death of the justice to whom she was assigned, until her tenure thereof was ended by the appointment of her official successor.

REGULATIONS-RANK AND PAY OF COAST AND GEODETIC SURVEY OFFICERS.

The regulations for the government of the Coast and Geodetic Survey, prohibiting the reduction in grade of any commissioned officer in that bureau except after due investigation by a board of commissioned officers, etc., while issued with the approval of the Secretary of Commerce, are not based upon any specific statutory authority, and may therefore be waived or disregarded by the head of that department at his discretion.

Decision by Comptroller General McCarl, July 12, 1921:

D. B. Wainwright, hydrographic and geodetic engineer, United States Coast and Geodetic Survey, applied June 9, 1921, for revision of the action of the Auditor for the State and Other Departments in disallowing by settlement 26439, dated June 6, 1921, claim for difference between the pay and allowances of a commander, relative Navy rank, and the pay and allowances of a lieutenant commander, relative Navy rank, for the period May 18 to October 31, 1920.

It appears that on July 15, 1916, appellant was appointed an "assistant" in the Coast and Geodetic Survey at a salary of $3,000 per annum; that on June 30, 1917, while still serving under that appointment he was commissioned hydrographic and geodetic engineer in the Coast and Geodetic Survey under authority of the act of May 22, 1917, 40 Stat., 88, with the same salary which gave him the relative rank of commander in the Navy; that on June 28, 1919, the Secretary of Commerce made a change in appellant's salary, reducing same from $3,000 to $2,800 per annum, which was appellant's rate of salary when the act of May 18, 1920, 41 Stat., 603, was passed assimilating the pay and allowances of commissioned officers of the Coast and Geodetic Survey to that of officers of the Navy with whom they hold relative rank as provided in the act of May 22, 1917. The act of May 22, 1917, 40 Stat., 88, provides:

"Hydrographic and Geodetic engineers receiving $2,500 or more but less than $3,000 shall rank with and after majors in the Army and lieutenant commanders in the Navy."

Appellant's relative rank when the act of May 18, 1920, became effective was that of lieutenant commander. He contends, how.

ever, that the Secretary's action in changing his salary from $3,000 to $2,800 was in violation of article 76 of regulations for the government of the Coast and Geodetic Survey and therefore was ineffective to change his grade or relative rank.

Article 76 provides that:

* No commissioned officers shall be dismissed from the service or reduced in grade, without due investigation by a board of commissioned officers of the survey ordered by the President of the United States or the Secretary of Commerce on the recommendation of the Superintendent *

It appears that the Secretary's action in reducing appellant's salary, and consequently his grade, was made without any reference to an investigating board as required by the regulations, and the question is whether the Secretary's action in thus ignoring or waiving the requirement of the regulations is valid as affecting appellant's grade or relative rank.

The power to make regulations implies the power to alter, amend, modify, or revoke the same, but it does not always imply the power to waive or ignore the regulation in a specific case. A regulation made pursuant to general authority resting in the head of a department to make regulations to govern its agents in the distribution and performance of the department's activities can be waived by the head of the department in any particular case so long as the waiver thereof does not violate a specific provision of the law. But a regulation made by specific authority of a statute and pursuant to and in execution thereof is supplementary to the law and of equal force therewith. Such a regulation may be amended or modified, but so long as it remains a regulation it has all the force and effect of law and can not be waived or ignored in a specific case. 21 Comp. Dec., 482.

Since the regulation in question does not seem to have been made pursuant to a specific provision of law and was not necessary to the execution of any particular statute, I am of opinion that the Secretary's action in reducing appellant's salary without reference to a board of investigation as provided by regulation was within his authority and that such action gave to appellant the relative rank of a lieutenant commander in the Navy.

Accordingly, the action of the auditor is affirmed.

OFFICERS AND EMPLOYEES-HOLDING TWO POSITIONS.

The act of May 10, 1916, 39 Stat., 120, prohibiting the use of any appropriation for payment to the same person of more than one salary from the Government when the combined amount exceeds the sum of $2,000 per annum, is applicable to the funds of the United States Shipping Board Emergency Fleet Corporation; hence an employee of the corporation may not also receive compensation from the United States Shipping Board when the combined compensation is more than $2,000 per annum.

Decision by Comptroller General McCarl, July 13, 1921:

W. L. Soleau applied June 25, 1921, for a revision of the action of the Auditor for the State and Other Departments in disallowing, by settlement No. 10655, dated March 25, 1921, credit for certain payments aggregating $5,269.35 made by him as disbursing officer of the United States Shipping Board to officers or employees of said board for the period from January 1, 1919, to May 31, 1919. The officers or employees to whom the payments in question were made and the aggregate amount of the disallowance in the case of each are as follows:

W. L. Soleau___

Miles M. Dawson__

Sherman L. Whipple---.

I. P. Henderson_

E. J. Skidmore___

John J. Converse.

$1,666.66
1,562. 50
1,041.66

761.23

177.30

60.00

It appears that during the period covered by these payments each of the persons mentioned was holding two separate and distinct offices or positions, one under the United States Shipping Board and the other under the United States Shipping Board Emergency Fleet Corporation; that the combined salaries of the two offices or positions held by each exceeded $2,000 per annum; and that the amount disallowed in each case is the amount paid by the Shipping Board to the extent that said amount, together with the amount of the salary of the office or position held under the Emergency Fleet Corporation, exceeded $2,000 per annum.

The auditor's disallowance was based upon the provision of section € of the act of May 10, 1916, 39 Stat., 120, which reads:

That unless otherwise specially authorized by law no money appropriated by this or any other Act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum.

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That each of the persons hereinbefore mentioned was receiving more than one salary" and that the combined amount of the salaries received by each "exceeds the sum of $2,000 per annum there would appear to be no room for doubt, and these facts were known to the appellant at the time the payments were made.

In his request for revision of the auditor's action appellant argues at some length to the effect that the United States Shipping Board Emergency Fleet Corporation is not a Government establishment or organization, and that the funds used to pay the persons hereinbefore named for their services as officers or employees of said corporation were not moneys appropriated by Congress. These arguments might be entitled to some consideration if the payments now in question had been made by the Emergency Fleet Corporation, but

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