while on active duty. The claimant has received for the period over

which this claim for the allowances of a retired enlisted man extends

the retired pay of a warrant officer by virtue of a provision in section

127a of the act of June 4,1920,41 Stat., 786, which reads:

Retired enlisted men who have served honorably as commissioned officers of the United States Army at some time between April 6, 1917, and November 11, 1918, including those who have been placed on the retired list during the World War, and who have been or may hereafter be discharged from their temporary commissions, shall receive the retired pay and allowances of warrant officers on the retired list • * *.

While conceding that under section 4a of the act of June 4, 1920, a warrant officer is entitled to retirement under the same conditions as commissioned officers, which, by virtue of section 1274, Revised Statutes, is to retirement after 30 years' service with 75 per cent of the pay of the rank upon which retired, and that the term "allowances" as used in section 127a is superfluous, as the term "pay" does not include "allowances," United States v. Landers, 92 U. S., 77, it is contended that section 4b of the act of June 4, 1920, saves to the claimant the allowances of a retired enlisted man while receiving the " pay and allowances" of a retired warrant officer.

This contention is devoid of merit. The saving clause in section 4b is by its express terms confined to that section. The change of the retired pay status of claimant as a retired enlisted man from that of retired enlisted men generally to that of retired warrant officers was not by operation of said section 4b, but by operation of section 127a of the act. The saving clause in section 4b applies to the enlisted men of the Army on the active list who were required to be regraded and placed in one of the seven grades established by that section. Moreover, the pay of the claimant was increased by the operation of section 127a of the act of June 4 from $75.75 per month, which includes the $15.75 per month as commutation of all allowances, to $115.50 per month.

On revision, the action of the auditor is affirmed.


The act of July 7, 1884, 23 Stat.. 204, contemplates competitive bids in the matter of contracts for transportation of money, coin, or securities, and, as insurance Is a service incident to such transportation, it should also be secured by competitive bidding in compliance with provisions of section 3709. Revised Statutes, either through advertising in newspapers, or, if conditions are such as to make it inadvisable to so advertise, through other means sufficient to properly convey the desires of the department to those engaged in the business involved.

Comptroller General McCarl to the Secretary of the Treasury, July 20, 1921:

I have your letter relative to whether the provisions of section 3709 of the Revised Statutes require advertising in contracting " for insurance on registered mail shipments of money, coin, and securities," and if so whether such advertising may be by invitation for competitive bids addressed to a number (not less than five) engaged in furnishing such insurance.

I understand that heretofore, under rulings of the accounting officers of the Treasury, the insurance of shipments by mail has been authorized. 21 Comp. Dec, 308.

Section 3709 of the Revised Statutes requires that—

All purchases and contracts for supplies or services. in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the Immediate delivery of the articles, or performance of the service. • • «

The act of July 7, 1884, 23 Stat., 204, requires that—

Whenever It Is practicable contracts for the transportation of moneys, bullion, coin, notes, bonds, and other securities of the United States, and paper Bhall be let to the lowest responsible bidder therefor, after notice to all partieshaving means of transportation.

It will be noticed that the act of 1884 contemplated competitive bids in the matter of transportation. Although in recent years such shipments have been by mail I think the insurance is a service incidental to the transportation and as such should be procured by competitive bidding in compliance with the provisions of section 3709.

The method of advertising is not prescribed by the statute and the accounting officers of the Treasury have not considered that advertising in newspapers is absolutely necessary. If conditions are such as to make it inadvisable to so advertise, I see no objection to adopting a method by which notice of the desire of the department for competitive bids is properly conveyed to those who are in the business involved. The voucher forms used in such matters usually indicate the information that is required to be given as to the method of advertising adopted and the facts as to the procuring of the competitive bids should be furnished accordingly.


Where the Government leases premises from several tenants In common the contract with each tenant is separate and distinct, not dependent one on the other, and the fact that some of the cotenants ask and receive a hlpher rate of rental than others is no basis for a claim for additional rent by a cotenant who has agreed by the terms of his lease to accept a lower rental.

Comptroller General McCarl to F. W. Hoover, disbursing officer, State, War, and Navy Department buildings, July 20, 1921:

I have your letter of July 14, 1921, transmitting voucher stated in favor of Wm. W. Danenhower, for rental for the month of July, 1921, for an undivided one-third interest in the premises known as lots 5 to 23, inclusive, in square 147 in the city of Washington, computed on an annual rate of $1,022.88.

It appears that the land in question has been occupied by the Government for some years under separate leases with all of the tenants in common; that each of the annual leases has provided for renewal at the option of the United States for the ensuing fiscal year at the same rental and under the same terms and conditions; that Wm. W. Danenhower, jr., attorney in fact for the owners of an undivided onethird interest in the premises, executed on December 15,1920, a lease for that interest for the fiscal year ending June 30,1921, at an annual rental of $768.60, with the unqualified option of renewal on the part of the United States for the fiscal year 1922; that the representatives of the owners of the remaining undivided interests in the land declined to renew with an unqualified option for renewal and insisted upon a provision for an increase in the rental during the fiscal year 1922 to $1,022.88 for each one-third interest represented by them; and that Wm. W. Danenhower, jr., now declines to carry out his agreement to renew for the fiscal year 1922 except at the rate being paid to the owners of the remaining undivided interests.

You ask whether you are authorized to pay the voucher in his favor for the month of July, 1921, at the increased rate.

The Government entered into possession of the property under independent leases with the representatives of all of the owners of the property; its right to poasession is therefore complete. As a tenant in common may let his own share of the common property without restriction as to the amount of the consideration or rental, the amounts that may be asked and received by his cotenants for the lease of their shares in the common property has no effect on his contract of lease for his share in the common property.

A lease is a contract, 5 Comp. Dec, 700, 704; 18 id., 70; and alterations in a contract with the Government to the prejudice of the Government may not be made, 11 Comp. Dec, 113. As the Government is entitled to the occupancy of the premises under the terms of its lease during the fiscal year 1922, 9 Comp. Dec, 593, 596, and so far as the undivided one-third interest represented by William H. Danenhower is concerned, at the rate of $768.60 per annum, 20 Comp. Dec, 261; 21 id., 345, you are not authorized to pay more than one-twelfth of that amount as the rental accruing for the month of July, 1921.


Where a lease has been properly executed and is in all respects a valid and subsisting obligation, and provides for its renewal from year to year at the option of the Government at the same rental, the administrative officers of the Government are without jurisdiction to authorize the execution of a new lease for a greater rental, notwithstanding the fact that the rental paid under the lease is apparently inadequate when considered in connection with the value of the property.

Comptroller General McCarl to the Secretary of the Treasury, July 21, 1921:

I have your letter of July 13 requesting decision of a question presented as follows:

In connection with the lease of the city hospital at St . Louis. Missouri, which the Public Health Service lias been using as a general hospital since June, 1919, a question of the inadequacy of the rental being paid by the Government has been presented by the present municipal authorities of the City.

This hospital property was originally leased to the War Department by agreement dated November 4, 1918, between the City of St. Louis and Lt. Col. John A. Hornsby, Medical Corps, U. S. Army, and the lease was subsequently transferred to the Public Health Service in June, 1919, under the provisions of Section 2 of the Act of Congress npproved March 3. 1919, 40 Stat., 1302.

The option contained in the lease providing for annual renewals until June 30. 1925, has been exercised by the Treasury Department for the present fiscal year, notice of renewal having been given on May 16, 1921. Under the terms of the lease the rental beginning with the fiscal year 1920 is at the rate of $1,000 per month.

It is conceded that the City's claim as presented in letter dated June 14, 1919, from the Chairman of the Board of Estimate and Apportionment, that the City should receive a rental of $50,000 a year instead of $12,000 as stipulated in the present agreement, is a just one. The property is valued at approximately $1,000,000 and at the increased rental the Service would be paying only 5 per cent on the City's investment.

Upon receiving notice of the renewal of this lease for the fiscal year 1922, the present City Counselor advised the Department on May 27, 1921, that the lease is void and that any attempt to renew it without previous authority given by ordinance would be void and of no effect.

The certificate of Lt. Col. John A. Hornsby who negotiated the lease for the War Department reads:

"I hereby certify that I have satisfied myself of the authority of the person signing the lessor's name to this lease to bind the lessor, and I have waived the filing of evidence of such authority, as permitted so to do by the Army Regulations."

Upon the above statement of facts, you are requested to decide whether or not this Department would be authorized at this time to enter into a new lease with the City of St. Louis for the use of this property at a rental which is in excess of that stipulated in the agreement dated November 4,1918.

The lease agreement dated November 4,1918, under which the Government acquired possession of the premises now involved contained a provision as follows:

That, at the option of the lessee, this lease, with all its covenants and agreements, may be renewed yearly as often as the needs of the public service may require, so as to give the lessee continuous possession of the premises, not extending, however, beyond June 30, 1925, but no renewal shall be made to include more than one fiscal year. In case of any renewal beyond June 30, 1919, the rental shall be at the rate of $1,000.00 per month.

I understand that the premises are still being held under said lease agreement, the Government having exercised its option of renewal at the end of each succeeding fiscal year, the option to renew for the fiscal year ending June 30,1922, having been exercised May 16,1921.

Upon the facts appearing in this case no administrative officer of the United States has the authority or jurisdiction to concede that the original lease under which the premises are held is void, or to enter into a new lease at a rental in excess of $1,000 per month, or to authorize the payment of rent at a rate in excess of said amount. The lease agreement under which this property is held must be aseumed to be legal and valid until adjudged otherwise by a court of competent jurisdiction. The equities of the case and the question whether the rent stipulated in the lease is adequate are not for consideration by the administrative or accounting officers of the Government. If the rent reserved is inadequate, relief can be obtained only through legislation. The question submitted is answered in the negative.


Allowance for training authorized by the vocational rehabilitation act, as amended by the act of July 11, 191!). 41 Stat., 158, is a substitution during the period of training for war risk compensation which would otherwise be payable, and therefore stands upon the same footing in it* relation to receipt of a pension as the war risk compensation. As the general policy of the law relating to pensions and war risk compensation prohibits receipt by one and the same person of both pension and war risk compensation, a pension under laws administered by the Bureau of Pensions and support and subsistance allowance while training under vocational rehabilitation act may not lawfully be paid to and retained by one and the same person for the same period of time.

Comptroller General McCarl to the Secretary of the Interior, July 21, 1921:

I have your letter of July 9, 1921, submitting for decision the question whether a pension under laws administered by the Bureau of Pensions, and support and maintenance allowance under the vocational rehabilitation act administered by the Federal Board for Vocational Education, may lawfully be paid to and retained by one and the same person for the same period of time.

The question is raised by the case of one Dewey H. Spangler, who has been paid compensation by the Bureau of War Risk Insurance for the period December 19, 1917, to July 25, 1920, and has received support and maintenance allowance from the Federal Board for Vocational Education since July 26, 1920. He was paid by the Bureau of Pensions a pension at the rate of $10 per month for the period December 19, 1917, to December 4, 1920, the said payments aggregating $355.

I assume that Spangler was one of those soldiers who were discharged from the military service between April 6,1917, and October 6, 1917, and who therefore were not entitled to the compensation benefit provided by sections 300 and 302 of the war risk insurance act of October 6, 1917, 40 Stat., 405, as the law was originally enacted, but were given those benefits by the amendment to the said sections made by section 10a and subsection (10) of section 11 of the act of December 24, 1919, 41 Stat., 373, 374, which provide that sections 300 and 302 as amended therein shall be deemed to be in effect as of April C. 1917.

The compensation awarded to this ex-service man by the Bureau of War Risk Insurance was subject to deduction of the pension pay

« ForrigeFortsett »