subsistence (not exceeding $3.00 a day) when on duty away from home or designated headquarters. If, however, you remain in any one assignment in excess of 60 days your subsistence expenses for any time beyond that period must be paid from personal funds.

The limitations in the appointment as to subsistence covering assignments at any one place in excess of 60 days apparently was by reason of Circular No. 898, issued by the Commissioner of Indian Affairs on September 2, 1914, 27 Comp. Dec., 439, which provides: Hereafter supervisors, special agents, superintendents of irrigation, and all other officials in the Indian field service, who are allowed, in connection with their positions, their actual traveling expenses of subsistence (not exceeding the maximum specified in each case) or a per diem in lieu thereof, when on duty away from their homes or designated headquarters, will be permitted to receive such allowance for not to exceed sixty consecutive days' assignment at any school or agency or other place they may be assigned temporarily.

It will be necessary for such employees to make provision to meet their actual expenses in all assignments at any place which extend over a period of sixty days.

* *

Claimant submitted with his application for revision a copy of a letter bearing date of April 5, 1920, addressed to the Commissioner of Indian Affairs, in which he stated in substance that he left his assignment at Fort Yates shortly after the lapse of 60 days of duty thereat and proceeded to other assignments in his field itinerary because "if I had been able to arrange a rate * at which I felt I could afford to stay, would have been glad to do so at my own expense." He also stated in effect that he intended to return to and complete the tour of duty at Fort Yates, but with the understanding that he be allowed his subsistence expenses, and as to this latter proposition he requested to be advised. Claimant, as stated, not having been advised as requested, proceeded to Fort Yates on his own initiative to complete the work which he apparently had abandoned under the same conditions. In the application for revision claimant stated in part as follows:

If the Indian Office had notified me that if I returned to Fort Yates to complete my work before these expenses had been incurred, the same would not have been incurred, and I can not see why I should be penalized for the failure of the administrative office to so notify me.

Without here considering the possible impropriety of the allowance of other items of expense incurred in connection with the matters herein considered, it is clear that, not being entitled to the subsistence allowance after the first 60 days at Fort Yates, claimant could not nullify the effect of Circular 898 of September 2, 1914, and the condition in his appointment predicated thereon, by his apparently unauthorized acts as hereinbefore set out.

NAVY PAY-FORFEITURE-CHECKAGES FOR GOVERNMENT

BONDS.

Amounts checked against the monthly pay of enlisted men of the Navy for installments on Government Liberty or Victory bonds which were later credited to their accounts due to the men being placed in a nonpay status, under an agreement so providing, are not subject to forfeiture by courtmartial sentence nor by desertion, but should be paid to the proper parties entitled thereto regardless of the men's service accounts.

Decision by Comptroller General McCarl, September 16, 1921:

The Chief of the Navy Department Division has transmitted as a request for instruction a memorandum decision of the law board assigned to the division, as follows:

The chief of the examining section has requested instructions as to the proper disposition of a suspension of $69.88 appearing on the statement of differences in the account of Lieutenant C. S. Austin (S. C.), United States Navy, for the fractional third and fourth quarters, 1920. In the case of No. 73, Herman C. Babington, seaman, second class, the amount overpaid at date of bad-conduct discharge, February 28, 1920, was suspended because he was paid $90.00 in cash on that date. Babington's account was credited $90.00, the amount previously checked for a Victory bond, and this sum was paid him on the date of his discharge. He was sentenced by summary court-martial February 27, 1920, to lose pay amounting to $107.70, and checkage of this amount caused an overpayment of $69.88.

The chief of the claims section has also requested instructions as to what action should be taken regarding the claims of Robert Jackson Hodges, seaman, second class, United States Navy, and the parents of Marcus W. Jones, late private, United States Marine Corps, for refund of amounts checked on account of Victory bonds. Hodges was convicted by general court-martial February 21, 1921, of the act of desertion on December 29, 1919, prior to which time his account had been checked $70.00 for a Victory bond. Jones's account was checked $180.00 for a Victory bond, prior to his desertion of May 10, 1920, which amount was placed to his credit and was included in the balance due at the time of his desertion.

The questions, therefore, arise whether amounts checked on account of subscriptions to Victory bonds may be forfeited either by sentence of court-martial or by the act of desertion.

Applicants for Victory bonds were required to sign the following agreement: "I hereby subscribe for notes of the Victory Liberty loan to the value indicated hereon and request that my account be charged at least one-tenth of this subscription on the last date of each month, commencing April 30, 1919, until the full amount has been charged, unless an amount less than one-tenth be required at the time the final checkage is made. In the event that I am placed in a nonpay status, it is understood that the total of the amounts which have been checked on account of this subscription will be credited in my account and the subscription canceled."

It will be seen that the funds for payment of the Victory bonds did not pass out of the hands of the United States, being practically held as a deposit, and following the established rules of treating deposits, it would seem that they are not subject to forfeiture by sentence of court-martial, but are forfeited by desertion. The question herein involved should be distinguished from that decided in 25 Comp. Dec., 505, wherein the subscriptions for Liberty bonds were paid by allotments to banking institutions, the money thereby passing out of the hands of the Government.

It is therefore held that an indebtedness created by the checkage of a courtmartial forfeiture is not such an indebtedness as may be collected from an unpaid Victory bond checkage, since the practical effect would be to subject the Victory bond deposits to forfeiture by sentence of court-martial, hence the suspension against Lieutenant Austin should be allowed.

It is also held that the act of desertion works a forfeiture of the Victory bond deposits, as such deposits, in accordance with the depositors' own agreement, become a credit in their accounts when placed in a nonpay status. It would therefore follow that the claims of Hodges and Jones should be disallowed.

The contract or agreement entered into by the enlisted men in subscribing for Government Liberty bonds is not based on any specific provision of law as in case of saving deposits, and therefore the checkages made against their accounts pursuant to such an agreement do not partake of the character of such deposits. Since said contracts are separate and distinct from any provision of law relative to the men's rights and obligations under their contracts of enlistment, it is of no material difference whether the Government deals directly with the men in the sale of the bonds or negotiates such sale through a bank. In either case the matter of payment by means of checking their accounts, for which the men acknowledge receipt by signing the rolls, is as absolute as if the money was actually handed to the men and then paid by the men themselves to the agent of the Government selling the bonds.

The fact that the agreements provided that in case of the men's failure to complete payment on the bonds the amounts paid thereon by means of such checkage should be credited to their accounts was merely for convenience in refunding amounts due the men in case of their failure to complete the payment and an assurance that such refunds would be promptly made without difficulty to the men. Title to the amounts paid on the bonds by reason of checking their accounts passed to the men when the checkages were made, and the Government retained possession of such amounts by reason of agreements entirely separate and distinct from their contracts of enlistment as much so as if no enlistment contract existed and the men were in no sense in the employ of the Government.

The crediting of the men's accounts with amounts so paid in no sense places such credits in the status of amounts due and unpaid under the men's contracts of enlistment, and therefore such credits are not subject to forfeiture by court-martial sentence nor by desertion, and should be paid regardless of the men's service accounts. The memorandum decision holding that Hodges and Jones by desertion forfeited their right to amounts checked against their accounts as payments on Victory bonds is disapproved.

CONTRACTS-PARTIAL PAYMENTS.

Partial payments are authorized under a contract for construction of a number of airplanes and spare parts which provides for such payments as the work progresses, and contains a provision that title to all property for which any partial payments are made prior to completion of the contract shall vest in the Government in its condition at the time the partial payments are made, notwithstanding a provision in the contract giving the Government the right to reject upon final inspection, such a provision not operating to divest the title acquired by the Government to the materials and supplies on which partial payments have been made.

7920°-22-Vol. 1-11

Comptroller General McCarl to the Secretary of War, September 17, 1921: By indorsement dated September 1, 1921, decision is requested of questions presented by the Chief of Air Service, as follows:

1. Whether the partial payments provided for in Article V of contract No. 402 with the Curtis Aeroplane & Motor Corporation may be made in view of the provisions of section 2 of Article III of said contract.

2. Whether under the wording of Article I as supplemented by sections 1 and 2 of Article III this contract may be construed to be a contract for service and material so as to come within the provisions of section 3648, Revised Statutes, permitting partial payments.

3. Whether the provisions of section 1 of Article VIII authorize the payment of any sum upon an unfinished article which is not delivered and which is still subject to rejection.

Sections 1 and 2 of Article I of the contract provide that the contractor shall construct and assemble for and deliver to the Government 50 airplanes and certain sets of spare parts in accordance with sample, specifications, etc.

Section 2 of Article II provides that the first plane shall be delivered complete and in flying condition within three months after the contractor's detail drawings of necessary changes have been finally approved by the Government, and that the remainder shall be delivered within 12 months of the delivery of the first.

Section 3 of Article II provides that the spare parts shall be delivered in carload lots and that such deliveries shall commence coincident with the delivery of the second plane and continue thereafter so that all spare parts shall be completely delivered when the last plane is delivered.

Article III provides for Government inspection during all periods of procurement, fabrication, and assembling and after completion of each article and for final inspection and acceptance or rejection after ground test. Said article also requires that the contractor make good any defect or deviation disclosed as a result of flight tests after acceptance.

Article IV relates to changes which the Government may find it necessary to direct during the progress of the work.

Article V fixes the total consideration at $1,167,740, being $18,900 for each of the 50 planes and $222,740 for the spare parts based on the unit prices indicated in the spare parts price list attached to the contract. Said article provides that payments shall be made substantially as follows:

(a) $40,000 when materials or work in process costing in aggregate at least $75,000 are on hand at the contractor's plant and are paid for.

(b) $35,000 additional when such work and materials on hand and paid for shall amount to at least $115,000.

(c) $30,000 additional when such work and materials on hand and paid for shall amount to at least $150,000.

(d) $35,000 additional when such work and materials on hand and paid for shall amount to at least $200,000.

(e) $35,000 additional when such work and materials on hand and paid for shall amount to at least $250,000.

(f) $35,000 additional when such work and materials on hand and paid for shall amount to at least $300,000.

(g) $35,000 additional when such work and materials on hand and paid for shall amount to at least $350,000.

(h) $25,000 additional when such work and materials on hand and paid for shall amount to at least $380,000.

(i) $13,500 when each of the planes is inspected, accepted by, and stored for or delivered to the Government.

(j) Each lot of spare parts to be paid for at the unit prices indicated in the contract upon delivery after inspection and acceptance. Section 1 of Article VIII provides:

TITLE TO PROPERTY WHERE PARTIAL PAYMENTS ARE MADE.-The title to all property upon which any partial payment is made prior to the completion of this contract, shall vest in the Government in its then condition forthwith, upon the making of any such partial payment or payments; provided, however, that nothing herein shall deprive the contractor of such equitable interest, if any, as may be determined to exist in it; nor to deprive the contractor of any further partial or final payments due or to become due hereunder; nor to relieve the contractor and/or the Government of any of their respective rights or obligations under this contract.

None of the other provisions of the contract has any particular bearing upon the questions now under consideration.

Section 3648, Revised Statutes, provides:

No advance of public money shall be made in any case whatever. And in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment.

The provisions of this section do not necessarily preclude the making of any payment under a contract until the entire subject matter of the contract has been completed and turned over to the Government. Its prime purpose is to prevent the advancement to the contractor of funds with which to enable him to perform his contract. It was not intended to prevent a partial payment in any case in which the amount of such payment had been actually earned by the contractor and the United States had received an equivalent there for. 18 Op. Atty. Gen., 105; 20 id., 746; 17 Comp. Dec., 894.

In the case here presented the amount of the proposed partial payment in each instance is well within the amount actually expended