RETIRED OFFICERS AND ENLISTED MEN OF ARMY AND NAVY HOLDING CIVIL POSITIONS. Retired officers or enlisted men of the Army or Navy are not prohibited by the act of July 31, 1894, 28 Stat., 205, or the act of May 10, 1916. as amended, 39 Stat., 120. 582, from holding a Government position or office, provided neither the retired pay nor the salary attached to the position or office amounts to $2,500, the aggregate of the two being immaterial. Comptroller General McCarl to the Director, United States Veterans' Bureau, April 15, 1922: I have your letter of April 3, 1922, as follows: Section 2 of the act of Congress approved July 31, 1894 (28 Stat., 205), provides as follows: "No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; "But this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office by and with the advice and consent of the Senate." Your opinion as to the meaning of the provisions of this section is desired on the following questions: 1. Do the provisions of this section apply to officers and enlisted personnel of the Army or Navy who may be receiving retired pay of less than $2,500 per annum? 2. If the provisions of the section in question do apply to such officers and enlisted personnel, may they draw such a salary as, combined with their retired pay, will not exceed $2,500 per annum? Your opinion is desired in order that we may properly interpret the decision recently rendered in the case of Lieutenant Colonel C. N. Barney. The questions are answered in order as follows: 1. If the salary or compensation of the office to which the retired officer or enlisted man is to be appointed does not amount to $2,500 per annum the quoted provision of the act of July 31, 1894, does not apply. If the said salary or compensation amounts to $2,500 per annum the statute prohibits anyone holding it from holding any other office with compensation attached, including office on the retired list of the Army or Navy. In other words, if either the civilian office or the office on the retired list has attached to it salary or compensation amounting to $2,500 per annum the statute prohibits the incumbent from being appointed to or holding the other office with compensation attached. 2. If neither the retired pay nor the salary or compensation of the other office amounts to $2,500 per annum, both may be received by one and the same person without regard to their aggregate amount, the act of May 10, 1916, as amended by act of August 29, 1916, 39 Stat., 582, which limits the aggregate payment of two or more salaries to one person to $2,000 per annum, not applying to retired officers and enlisted men of the Army or Navy. HOLIDAYS-PER DIEM EMPLOYEES OF DISTRICT OF COLUMBIA. Per diem employees of the District of Columbia are entitled to be paid for Armistice Day, November 11, 1921, without the rendition of service upon that day, being entitled under the act of August 31, 1918, 40 Stat., 953, to leave of absence with pay on holidays to the same extent as per annum employees and said day having been made a legal holiday in the District of Columbia, but per diem employees who were required to work on that day are not entitled to double compensation. Decision by Comptroller General McCarl, April 15, 1922: The Chief of the State and Other Departments Division of this office submitted April 6, 1922, memorandum decision that per diem employees of the District of Columbia who performed no service on November 11, 1921, are entitled to pay for that day, and that such employees who worked on that day are entitled to two days' pay therefor. The act of August 31, 1918, 40 Stat., 953, provides: SEC. 5. That all per diem employees and day laborers of the District of Columbia who have been regularly employed for fifteen working days next preceding such days as are legal holidays in the District of Columbia, and whose employment continues through and beyond said legal holidays, shall be granted such leave of absence with pay as is granted the regular annual employees of the District of Columbia for said legal holidays. November 11, 1921, was a legal holiday in the District of Columbia. Since the act quoted put per diem employees on the same footing as per annum employees, as far as leave of absence with pay on legal holidays is concerned, the decision that per diem employees of the District of Columbia are entitled to pay for November 11, 1921, subject to the requirements of the act of August 31, 1918, is approved. If the duties of a per annum employee had been such that he could not be spared on November 11, 1921, and he had been required to work on that day, he would not have been entitled to any extra pay for his services. Since the per diem employees are on the same basis as the per annum employees, and since there is no statutory authority to pay, the per diem employees for November 11, 1921, any more than one day's pay, the decision that a per diem employee who worked on November 11, 1921, is entitled to double pay for that day is disapproved. DAMAGES TO PRIVATE PROPERTY BY ARMY. Where due to the negligence of the driver of an Army truck a collision occurs, damaging a private truck and causing it to damage a fence, the owner of the private truck is entitled to receive as a measure of the damage sustained by him payment for the damage to his truck, and also the damage to the fence for which he was jointly liable and which he had paid to the owner of the fence. Decision by Comptroller General McCarl, April 18, 1922: The People's Baking Co. requested March 25, 1922, review of settlement No. 136347, dated March 7, 1922, wherein the War Depart ment Division of this office disallowed its claim for $27.50 as reimbursement of amount paid to P. F. Davar as damage to his fence caused through the collision of an Army automobile and claimant's delivery truck at the intersection of Scott and Lombard Streets, San Francisco, Calif. The Army automobile was proceeding west on Lombard Street December 23, 1920, at a rate of speed estimated to have been fifteen miles an hour; upon reaching the intersection of Scott Street a wagon appeared in front of the machine, and to avoid a collision therewith the automobile swerved into Scott Street. The streets were slippery, and the machine skidded, colliding with the rear end of a delivery truck, operated by the People's Baking Co., which had just crossed from Lombard Street. The momentum was sufficient to force the delivery truck across the sidewalk and into a fence belonging to P. F. Davar. The damage to the truck amounted to $92.50, and the damage to the fence amounted to $27.50. The People's Baking Co. reimbursed the owner, and has filed his receipt for $27.50 for the damage to his fence. It has submitted a claim in the total sum of $120 against the United States for damages arising out of the collision. The claim was acted upon by a board of officers, who found that the damage occurred through the negligence of the driver of the Army truck; that the amount of damage to the truck was $92.50 and the amount of damage to the fence was $27.50; and recommended that the People's Baking Co. be allowed the sum of $120 in full satisfaction for all claims resulting from the collision. The recommendations were approved February 25, 1922, by the Secretary of War and the claim referred to the General Accounting Office for settle In the settlement made March 7, 1922, of which review is requested, the War Department Division, under the act of June 5, 1920, 41 Stat., 965, allowed the People's Baking Co. $92.50 as reimbursement for the amount of damage to the truck, but refused to allow the company $27.50 as reimbursement of amount paid as damage to the fence on the ground that the amount could only be allowed to the owner of the fence. The claim asserted by the People's Baking Co. for $27.50 as the amount paid for the damage to the fence represents actual damage sustained by the company through the collision as much as the damage to the truck. All persons jointly concerned in the negligence which causes an injury are liable therefor, although but one of them is guilty of the negligent act causing the injury. 29 Cyc., 487. The innocent person jointly concerned in the negligence which caused the injury has the right to pay the amount of the actual damage resulting there from and recover the payment from the one guilty of the negligent act. As to him the amount paid arises through actual damage because made primarily liable in damages to the person injured and not through subrogation. Upon review of the matter the settlement is modified and $27.50 is certified due claimant. SALES OF SURPLUS WAR SUPPLIES-DAMAGES. The proceeds of sales of surplus war supplies, held in special deposit, are only available to pay the expenses of the sale, to refund amounts received in payment for goods not delivered, to refund purchase price of goods returned because of breach of condition or warranty resulting in a rescission of the sale contract, or to compensate for losses resulting from a breach of warranty as to condition or quality of the goods sold and delivered. Claims for damages resulting from the failure of the Government to deliver to purchaser of surplus war supplies the full quantity contracted for, payment having been made only for the goods actually delivered, is not such a claim as may be paid from the proceeds of the sale of like material when held in a special deposit account, and relief can only be obtained by submission to Congress. Comptroller General McCarl to the Secretary of War, April 18, 1922: I have your letter of March 27, received in this office April 4, requesting decision of a question presented as follows: On July 24, 1919, the Surplus Property Division of the Quartermaster Corps advertised for sale and requested proposals for some 14,615,444 yards of gray gauze, located at Atlanta, Ga., and other places. Among other proposals received was that of S. Silberstein & Son, New York, N. Y., who submitted a bid, as follows: 500,000 yards @ .09434 their bid price amounting in the aggregate to $109,482.75. On August 7, 1919, the selling officers of the Government sent to the purchaser what is known as "Form 13," wherein the offer of the purchaser was accepted and they were thereupon awarded the material at the prices named. Subsequently, the entire lot, in excess of 14,000,000 yards, was awarded to various other purchasers. Partial deliveries were made on this contract until November 29, 1919, when the purchaser was notified that no more of the material was on hand. At the time the purchaser was notified that there was no longer any of the material on hand there still remained undelivered on its contract 427.5694 yards. The purchaser claims that the entire amount of material contracted to be purchased from the Government had been resold by it and that upon the failure of the Government to deliver the portion above set forth, the purchaser was damaged in the sum of $30,425.61, which represents the difference between what the purchaser's vendee was required to pay for material of a like character and the price at which the Government had agreed to sell the same to the purchaser. It will be noted that at the time the contract of sale was made with the purchaser, the United States had the material on hand in sufficient quantity to discharge the obligation of the contract, but instead of delivering the material to the purchaser, diverted it to other persons, thus committing a breach of its contract with S. Silberstein & Son. It is the judgment of this office that the above constitutes a valid claim against the United States and your advice is asked as to whether or not the same is a proper claim to be paid out of funds arising from the sale of material of a like nature in the hands of the War Department. You are further advised that there are funds in the hands of the disbursing officers of the War Department carried in special deposit accounts arising from the sale of material of a like character, out of which this claim could be paid in accordance with decision of your office, if in your opinion the claim is a valid one against the United States. The facts suggest that whatever there is in the nature of a claim has as its basis erroneous action by Government officers or employees. It is obvious that if the responsibility of the United States is asserted because of such actions, the matter is of the class that is submitted to Congress for relief and may not be termed a claim against the United States in the settlement of which the public moneys may be used without submission of the specific claim to Congress. See also 1 Comp. Gen., 149; id., 540; 27 Comp. Dec., 594. Unless otherwise specifically provided by law, moneys received as proceeds from sales of surplus Government property may be expended for no other purpose than (1) to pay expenses of sale, (2) to refund amount received in payment for goods not delivered, (3) to refund purchase price of goods returned to Government because of breach of a condition or warranty resulting in a rescission of the contract of sale, and (4) to compensate for losses resulting from a breach of warranty as to condition or quality of the goods sold and delivered. See 1 Comp. Gen., 318, 374, 380, and 484. In the case here presented the claim is for damages alleged to have resulted from a breach of the covenant as to the quantity of goods to be delivered. It is not alleged that the Government did not deliver all goods paid for, nor that the goods delivered were not as represented, and the damage claimed can in no sense be regarded as a part of the expenses of sale. Therefore the claim is not within any of the four classes mentioned in the preceding paragraph, and the proceeds of sale are not available for its payment. COMMUTATION ALLOWANCES AND BONUS TO EMPLOYEES TRANSFERRED TO VETERANS' BUREAU. The restriction in the acts of March 4, 1921, 41 Stat., 1374, and December 15, 1921, 42 Stat., -, against the use of the appropriations of the Veterans' Bureau for payment of commutation of quarters, heat, light, subsistence, or laundry to any employees other than commissioned medical officers, extends to employees transferred to that Bureau from the Public Health Service by Executive Order issued under authority of section 9 of act of August 9, 1921, 42 Stat., 150, but does not prohibit furnishing such employees allowances in kind, nor payment to them of the actual cost of such allowances when procured otherwise. Employees of the Public Health Service transferred to the United States Veterans' Bureau by Executive Order issued under authority of section 9 of act of August 9, 1921, 42 Stat., 150, retain their right to the $240 bonus subsequent to such transfer. Comptroller General McCarl to the Director, United States Veterans' Bureau, April 19, 1922: I have your letter of April 14, 1922, referring to a prospective Excutive order which will transfer to the Veterans' Bureau certain designated Public Health Service hospitals and civilian personnel engaged in caring for disabled veterans of the World War, and 7920°-22-Vol. 1-38 |