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they were made by the disbursing officer of the United States Shipping Board from moneys appropriated by Congress for salaries and expenses of said board. Furthermore, it has been held by the Comptroller of the Treasury that the United States Shipping Board Emergency Fleet Corporation is a Government establishment or organization within the purview of different statutes. 25 Comp. Dec., 701; 26 id., 897; 27 id., 140 and 311. And in a decision dated January 22, 1919, to the acting chairman of the United States Shipping Board it was held that section 6 of the act of May 10, 1916, was applicable to cases identical with those now under consideration. Most of the payments involved in this case were made after the date said decision was rendered, but appellant contends that he had no knowledge of said decision and submits affidavits to the effect that said decision was not brought to the attention of the disbursing office of the United States Shipping Board until after his separation from said office in June, 1919. The question whether the disbursing office did or did not have knowledge of the decision of January 22, 1919, is not material for the reason that the payments for which credit has been disallowed were made in contravention of the plain provisions of the statute. The decision of January 22, 1919, did not change or modify any construction theretofore placed by the accounting officers upon the statutes. It merely announced what the effect of said statute had been since its enactment. The action of the auditor is affirmed.

TRAVEL ALLOWANCE ON DISCHARGE-NAVY, ENLISTED MEN. March 3, 1921, having been fixed as the termination of the war emergency by joint resolution of March 3, 1921, 41 Stat., 1359, enlisted men of the Navy discharged from enlistments entered into on or after that date are not affected by the war-time provisions of the act of July 11, 1919, 41 Stat., 139, relative to travel allowance on discharge before expiration of their enlistments during demobilization, but their right to travel allowance on discharge is controlled by the act of February 28, 1919, 40 Stat., 1203, under the provisions of which enlisted men honorably discharged for their own interest and convenience before expiration of their enlistments are not entitled to the travel allowance thereby authorized.

Comptroller General McCarl to the Secretary of the Navy, July 14, 1921:
I have your letter of June 27, 1921, requesting decision, as follows:
The act of 28 February, 1919. 40 Stat., 1203, provides:

"SEC. 3. That Section one hundred and twenty-six of the Act entitled 'An Act for making further and more effectual provision for the national defense, and for other purposes,' approved June third, nineteen hundred and sixteen, be amended to read as follows:

"SEC. 126. That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option: Provided, That for sea travel on discharge, transportation and subsistence only shall be furnished to enlisted men: Provided,

That naval reservists duly enrolled who have been honorably released from active service since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably released from active service, shall be entitled likewise to receive mileage as aforesaid."

The act of 11 July, 1919, 41 Stat., 139, provides:

"All enlisted men of the Navy and Coast Guard who have served in the war with the German Government and who may hereafter be discharged or who have been discharged from the service since November 11, 1918, and before the expiration of their full enlistment shall receive, under such rules and regulations as the Secretary of the Navy may prescribe, an honorable discharge and shall receive 5 cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service at his option: Provided, That for sea travel on discharge, transportation and subsistence only shall be furnished to enlisted men: Provided, That the records of such men warrant such honorable discharge."

Joint Resolution approved 3 March, 1921, 41 Stat., 1360, provides:

"And any Act of Congress, or any provision of any such Act, that by its terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shall be construed and administered as if such war between the Governments and people aforesaid terminated on the date when this resolution becomes effective, any provision of such law to the contrary notwithstanding;

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In view of the fact that enlisted men of the Navy who first enlisted on or after 3 March, 1921, will not have served in the Navy during the war with the German Government, your decision is requested as to whether or not, such men who may be discharged under honorable conditions prior to the expiration of their enlistments are entitled to travel allowance authorized in the Act of 28 February, 1919.

The Supreme Court, in United States v. Sweet, 189 U. S., 471, held that a soldier discharged at his own request and for his own pleasure or convenience was not entitled to travel pay and commutation of subsistence provided in section 1290, Revised Statutes, as amended by the act of February 27, 1877, 19 Stat., 243, 244. The language of that act-" when discharged from the service, except by way of punishment for an offense "-is identical with the language of the act of June 3, 1916, 39 Stat., 217, which provided travel allowance to discharged soldiers. The act of February 28, 1919, amending the act of June 3, 1916, changed the term "when discharged from the service, except by way of punishment for an offense," to "honorably discharged." The court's construction in the decision cited above was in accord with a long-continued construction of the War Department, the agency charged with the execution of the statute. In decision of the Comptroller of the Treasury that construction was applied to the act of March 2, 1901, 31 Stat., 902, which authorized travel allowance to soldiers "when discharged from the service, except by way of punishment for an offense." See 13 Comp. Dec., 686. It is apparent, therefore, that under the several acts authorizing travel allowance to discharged soldiers prior to February 28, 1919, a soldier discharged before expiration of his enlistment and for his own convenience was not entitled to travel allowance. Though, as stated above, the act of February 28, 1919, has substituted the term "honorably discharged" for the former term "discharged, except by way of punishment for an offense," I am of opinion that such

change does not alter the underlying reason for excepting from its benefits soldiers discharged for their own convenience. A discharge so granted necessarily results in some loss to the Government and a man so released from his contract of enlistment does not stand on an equal footing with one whose contract is fulfilled, nor is he in the same status as a man who stands willing to discharge his full obligation but is released there from for the convenience of the Government. Therefore, it is apparent that the same reasons for denying travel allowance to men so discharged under prior acts authorizing such allowance exist under the act of February 28, 1919.

Since men discharged from enlistments entered into after March 3, 1921, are not affected by any of the war-time provisions relative to demobilization and are practically in the same status as were men who enlisted in the Army under the acts of June 3, 1916, and prior statutes relative to travel allowance for discharged soldiers, you are advised that enlisted men of the Navy who first enlisted after March 3, 1921, and who are honorably discharged for their own interest and convenience before expiration of their enlistments are not entitled to travel allowance as provided in the act of February 28, 1919.

INCREASE IN FREIGHT RATES.

Where prior to canvassing bids for furnishing material to be used in the construction of a river and harbor improvement the Government requested railroad companies to quote what the tariff rates would be on material offered by the bidders, and the railroad companies quoted the published commercial tariff rates in force at that time with land-grant deductions when applicable, which were accepted by the Government, no such contractual relation existed as to obligate the railroad companies to continue to ship the material at the quoted rates throughout the entire time the improvement was in course of construction, but the railroad companies were entitled to any increase in tariff rates authorized by the Interstate Commerce Commission.

Comptroller General McCarl to the Secretary of War, July 15, 1921:

I have your letter of July 6, 1921, transmitting papers in reference to the Government's liability to pay an advanced freight rate upon certain stone used in the construction of silt diversion works for the protection of Los Angeles and Long Beach Harbors, authorized by the River and Harbor acts of July 27, 1916, 39 Stat., 391, 404, and March 2, 1919, 40 Stat., 1284.

In the specifications for the said works was a provision as follows: The prices bid for stone will include all expense of furnishing and placing it, excepting railroad freight charges from the quarry to the railroad station or sidetrack nearest the work. If the transportation is over lines on which the Government is entitled to reduced rates, the stone will be taken over at the quarry and transported on Government bills of lading, and if no reduced rate is available to the Government the contractor will handle the transportation and be reimbursed for its cost, not including any demurrage for which he may be responsible. Each bidder will state the location of the quarry or quarries from which it is proposed to obtain the stone, and the cost to the

United States for its transportation will be considered as a factor in making award. He will also submit samples of stone from each quarry named. Suitable stone is available at several privately owned quarries and bidders may also be able to procure it for such a public work at quarry owned by the Los Angeles County Flood Control District or at a quarry operated by the City of Los Angeles at Catalina Island.

It appears that prior to canvassing the bids for this stone the district engineer wrote to each of the railroads concerned to learn what would be the freight rates upon the stone offered by the bidder, and rates were quoted by the Southern Pacific Co. upon stone from Declez, Calif., from which place all the stone used on the works has been shipped. The communication of the district engineer to the railroad companies states:

You are requested to quote the freight charge you would make considering the land-grant status of a portion of the route and that the stone is for a Federal project for harbor protection.

The company on July 22, 1919, quoted the published commercial tariff rate on stone rip-rap, carload, effective at the time from Declez to Elftman, Calif., at 80 cents per ton of 2,000 pounds, and from Declez to Long Beach at $1 per ton of 2,000 pounds, minimum carload weight 60,000 pounds, as published in Southern Pacific tariff 230-B, I. C. C. 3891. The rates thus quoted were in effect one year, one month, and three days after the quotation, when they were increased on August 26, 1920, by order of the Interstate Commerce Commission in order "Ex Parte 74" dated July 29, 1920, pursuant to the provisions of section 15a of the interstate commerce act to increase the freight revenue of carriers by rail to a basis that would enable them to earn an aggregate annual net railway operating income as nearly as may be to 6 per cent upon the aggregate value of the railway property of such carriers.

The question is raised whether the increased freight rates which involve the disbursing of public money can be allowed, and whether it may be held that a contractual relation became established for freight rates on stone to be shipped to the silt diversion works by the acceptance by the Government of the rate originally quoted on behalf of the railroad company which would preserve the original rates throughout the duration of the construction work which is now nearly completed, it appearing that about 30 per cent of the stone required had been shipped prior to the increase in freight rates.

The rates from Declez, Calif., to Elftman and Long Beach of 80 cents and $1 per ton, respectively, were rates made effective June 25, 1918, having superseded the lower rates that became effective December 31, 1913. The rates that became effective June 25, 1918, were increased August 26, 1920, from Declez to Elftman and Long Beach, to $1 and $1.30 per ton, respectively. These rates are subject to land-grant deduction, no question being raised on account of

said deduction. There appears to have been no agreement with the carriers that the rate named for the transportation service, which was the regular commercial rate which on account of Government business was subject to land-grant deduction, would be maintained until all deliveries had been made. The quotation was merely the quotation of the tariff rate and the tariff rate was increased by order of the Interstate Commerce Commission. There thus appears to be no obligation on the part of the carrier to maintain the lower rate on account of the Government shipment. There appears to be nothing in the arrangement or agreement requiring the railroad company to maintain the rates first quoted, and in view of the increased rate being duly authorized by Government authoritynamely, the Interstate Commerce Commission-and not by the volition of the carrier, there appears to be no reason why payment at the increased rate should not be made. Payment in accordance with the effective tariff rate at the time of the service, with proper land-grant deduction therefrom, may therefore be made.

PAY OF RETIRED ENLISTED MEN OF THE ARMY COMMISSIONED DURING THE WORLD WAR.

Retired enlisted men of the Army granted the retired pay and allowances of warrant officers on the retired list because of active service as commissioned officers of the United States Army at some time between April 6, 1917, and November 11, 1918, under provisions of the act of June 4, 1920, 41 Stat.. 786, are not entitled also to the allowance of $15.75 per month authorized for retired enlisted men of the Army in lieu of rations, clothing, quarters, and other allowances by provisions of the act of March 2, 1907, 34 Stat., 1217.

Decision by Comptroller General McCarl, July 15, 1921:

Emil Walter applied May 23, 1921, for revision of the action of the Auditor for the War Department in disallowing by settlement No. 245470, dated April 23, 1921, his claim for $15.75 per month for the period June 4, 1920, to April 23, 1921, which is allowed retired enlisted men of the Army in addition to their pay by the act of March 2, 1907, 34 Stat., 1217, in lieu of rations, clothing, quarters, or other allowances.

The record discloses that the claimant entered the military service on June 23, 1883, as a private of Troop M, 7th Cavalry, and by successive reenlistments served continuously in various arms of the service until December 1, 1909, when he was placed on the retired list as a sergeant, first class, Hospital Corps. He was commissioned captain in the Quartermaster Officers' Reserve Corps and called to active duty under the reserve commission on July 13, 1917, and continued thus to serve until October 31, 1919, when he was discharged from the emergency commission of major to which he had been appointed

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