« ForrigeFortsett »
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 possession 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.
LEASES—ADEQUACY OF CONSIDERATION.
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 has 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 approved 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 Gov. ernment 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 assumed 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.
PENSIONS AND TRAINING ALLOWANCE UNDER VOCATIONAL RE
Allowance for training authorized by the vocational rehabilitation act, as
amended by the act of July 11, 1919, 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 its 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 6, 1917.
The compensation awarded to this ex-service man by the Bureau of War Risk Insurance was subject to deduction of the pension pay. ments which had been made to him. 27 Comp. Dec., 547, 863. The vocational rehabilitation act of June 27, 1918, as amended by the act of July 11, 1919, 41 Stat., 158, substitutes, during the period of vocational rehabilitation, the allowance for vocational trainees provided by that act for the war risk compensation provided by the war risk insurance act which they would otherwise be entitled to receive. Such allowance is subject to deduction of any overpayment of war risk compensation which may have been made to the trainee by the Bureau of War Risk Insurance, 27 Comp. Dec., 212. The trainee allowance stands upon the same footing in its relation to receipt of a pension for the same period of time as the war risk compensation for which it is temporarily substituted.
There is no specific provision in the vocational rehabilitation act that a trainee shall surrender his pension while he is receiving the allowance of a trainee, as war risk compensation beneficiaries are required to do, but trainees are prohibited from receiving war risk compensation except as provided in their law, and the intention that the trainee allowance shall be substituted for any and all other forms of pension or compensation during the period of training is clear.
The general policy of the laws relating to pensions and war risk compensation prohibits receipt by one and the same person of both pension and war risk compensation. 27 Comp. Dec., 863, 866. This policy must be taken to apply to and prohibit receipt of a trainee's allowance, which is a form of temporary war risk compensation, running concurrently with any form of pension or war risk compensation not specifically authorized by law.
Having been paid a pension running concurrently, first with war risk compensation and later with his trainee's allowance, Mr. Spangler has been overpaid war risk compensation or war risk compensation and trainee's allowance to the amount of $355, the aggregate of pension payments made to him by the Bureau of Pensions. His allowance as trainee of the Federal Board for Vocational Education is accordingly subject to deduction of the amount of this overpayment.
This decision relates to a payment to be made under the Federal Board for Vocational Education, and in strictness should not be rendered except upon request by that board. However, the matter was presented to the board by the Bureau of Pensions, and it is upon the board's suggestion that the question raised be submitted to the Comptroller of the Treasury for decision that your submission is based. The only condition to such submission stipulated by the board is that the brief prepared by its legal adviser should accompany the submission. The brief is attached thereto, and the submission accordingly is treated as coming indirectly from the board as well as from the Secretary of the Interior.
EMPLOYEES' COMPENSATION COMMISSION-PARTIAL DISABILITY
Under the act of September 7, 1916, 39 Stat., 743, authorizing the Employees'
Compensation Commission to pay to employees partially disabled in the Government service a monthly compensation equal to two-thirds of the difference between their monthly pay received from the Government and their monthly wage-earning capacity after the beginning of the partial disability, the Commission may not resort to an equitable construction of the law for the purpose of establishing an hourly or daily earning capacity for comparison with the hourly or daily rate of pay, but the amount of partial disability compensation must be determined upon the basis of the authorized percentage of the difference between the total pay per month which the employee was receiving from the Government and the earning capacity per month under the partial disability,
Comptroller General McCarl to the Chairman United States Employees' Com.
pensation Commission, July 21, 1921:
There are submitted herewith for your decision the cases of Walter Rich. mond and William J. Wood.
For your assistance in arriving at the decision in these cases, I submit the following brief as an explanation: These cases are what is known under the law as partial disability cases, and Section 4 of the act of September 7, 1916, 39 Stat., 743, says that
* If the disability is partial the United States shall pay to the disabled employee during such disability a monthly compensation equal to sixty-six and two-thirds per centum of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of such partial disability." which means that this Commission is authorized to pay to the injured emnployee, who by virtue of his injury has been unable to return to his previous profession or vocation at a salary equal to that which obtained prior to the injury and has therefore been compelled to either accept lower pay at the same class of employment, or to seek employment of a lower grade and a lower rate of pay-two-thirds of the loss of earnings suffered as a result of such injury.
In most cases men injured in the Government service are working under the eight-hour day, and, as in these cases, after the injury they are unable to return to their vocation with the Government, and in securing employment in other lines, are compelled to work very much longer hours. There being no set standard of uniformity accepted as a working day, working week, or working month, the Commission felt that in order to deal justly with the injured employee a unit would have to be found that could be universally applied in determining the wage-earning capacity of injured employees. For that reason it was decided that the earning capacity would be more easily computed on the hour unit than upon the unit of the day, week, or month, which varies so greatly every time the employee might be compelled to change his line of employment.
So, on November 23, 1918, in the case of Nicolo Ciattei, the Commission rendered a decision to the effect that partial disability cases should be computed on an hourly basis. The disbursing officer has questioned this method of payment, and as a result a number of cases are being held up by the Commission awaiting your decision.
In the case of Walter Richmond, at the time of injury, January 23, 1920, he was employed as a skilled laborer at $4.50 a day for an 8-hour day, or .567 an hour. The claimant recovered from total disability and received employment March 1, 1921, as a watchman. The record shows that this man has been working 7 days a week, 12 hours a day, for which he receives $20 a week. According to the Commission's decision as to the method of computing these cases, his present wage was reduced to an 8-hour day which gives him $1.904 per diem or .238 per hour. As he was earning $4.50 for an 8-hour day or $135 a month, and as his present capacity for an 8-hour day is $57.12 per month