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 settlement. 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 therefrom 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.


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 rece ved 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 war

ranty 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 sub

mission 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
500,000 yards @ .09384

165,4441 yards @.09304
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.



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. Vet

erans' 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

requesting decision whether in case the proposed transfer is made you will be authorized to pay from bureau appropriations to the personnel so transferred the same pay and allowances they are now receiving under regulations of the Public Health Service from allotments of the bureau appropriation made to that service.

You refer specifically to pharmacists, nurses, dieticians, administrative assistants, reconstruction aids, and attendants. Under Public Health Service regulations of 1920 former pharmacists who were designated as administrative assistants were allowed, in addition to their pay, longevity increase of pay, quarters, heat and light in kind, or commutation thereof, and allowance upon change of station of the actual expense of packing and drayage of baggage and personal effects within prescribed limits and transportation of same on Gov. ernment bill of lading. Female nurses, dieticians and reconstruction aids were allowed quarters, heat and light, subsistence, and laundry, in kind or commutation thereof. Attendants were allowed quarters, fuel, light, subsistence, and plain laundry, medicines, and medical attendance, but there was no provision for commutation of such expenses. In this connection see 27 Comp Dec., 745.

The appropriation for medical and hospital services for the Bureau of War Risk Insurance made by the act of March 4, 1921, 41 Stat., 1374, subject to allotment to the Public Health Service, contained the following proviso:

That no part of the money hereby appropriated shall be used for the payment of commutation of quarters, subsistence and laundry or quarters, heat and light and longevity to any employee other than the commissioned medical officers provided for by statute.

The same proviso appears in a like appropriation made by the act of December 15, 1921, 42 Stat., 330.

By an amendment to the Public Health Service regulations approved by the President March 31, 1922, all commutation of quarters, heat and light, subsistence and laundry was dropped from the regulations, but allowance of those items in kind was continued as to some of the employees, with a provision that if the items could not be furnished in kind they might, under prescribed authority, be procured otherwise and the expense to a stated amount be reimbursed to the employee.

The Director of the Veterans' Bureau is authorized to determine and fix the compensation and allowance of bureau employees, subject to statutory restriction of that authority. The question for decision by the Comptroller General on this submission is whether the statutory prohibition against payment from the bureau appropriation for “commutation ” of quarters, etc., also prohibits reimbursement to these employees of actual expense of those items to the prescribed maximum fixed by the amended Public Health Service regulations.

The term “commutation " has a fixed and definite meaning in this connection. It is the allowance and payment of a fixed sum in lieu of furnishing the quarters, etc., in kind, or reimbursing the actual cost of those items in case they can not be furnished in kind. The commutation is fixed and payable regardless of the amount of expense actually incurred, or whether any expense is in fact incurred. It may result in profit to the employee, thus indefinitely increasing his pay, while furnishing the items in kind or reimbursing actual expense only can not so result.

Whatever may have been the intention of Congress in placing the restriction aforesaid upon bureau appropriations the word "commutation ” can not properly be broadened by construction of this office to cover the furnishing of the articles in kind, or reimbursement of the actual expense if they are otherwise properly procured.

You also request decision whether those employees of the Public Health Service included in the proposed transfer who have been drawing the bonus of $240 per year, allowed with certain exceptions to civilian employees of the United States, may continue to draw the same after transfer to the Veterans' Bureau.

The transfer of these employees will be effected by virtue of authority conferred upon the President by section 9 of the act of August 9, 1921, 42 Stat., 150. It is part of the statutory plan for organizing the Veterans' Bureau, and for reasons stated in 1 Comp. Gen., 152, I feel justified in holding that the employees carry with them into the Veterans' Bureau the right to the bonus which they had in the Public Health Service.

You are accordingly authorized to continue, in your discretion, the former pay and allowance, including the $240 bonus, of any of the aforementioned Public Health Service hospital employees who may be included in the proposed transfer of hospitals of that service to the Veterans' Bureau.


OF GUARANTIES. The payment to a railroad of an amount as guaranty under section 209 of the

Transportation act, 1920, upon a certificate by the Interstate Commerce Commission that it had made a final determination of the amount so due. does not preclude the reopening of the settlement and the making of an additional payment upon a further certificate by said Commission that an additional sum is due, and satisfactory explanation being furnished for the failure to include the additional sum claimed in the original certificate and

settlement. Decision by Comptroller General McCarl, April 19, 1922:

Under date of March 20, 1922, the Secretary of the Treasury transmitted to this office for consideration a certificate from the Interstate Commerce Commission to him reading as follows:

1. The Interstate Commerce Commission, hereinafter called the commission, hereby certifies that the Buffalo, Rochester and Pittsburgh Railway Company,

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