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.

TERMINATION OF FEDERAL CONTROL OF RAILROADS-PAYMENT 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,

a corporation of the States of New York and Pennsylvania, hereinafter called the carrier, is a carrier as defined in paragraph (a) of section 209 of the transportation act, 1920; that the carrier filed with the commission on or before March 15, 1920, a written statement that it accepted all of the provisions of the said section 209.

2. The commission has ascertained and hereby certifies to the Secretary of the Treasury that the amount of sixty-one thousand ninety-three dollars and twenty-one cents ($61,093.21) is due the carrier in addition to any other sum or sums heretofore certified in its favor under paragraphs (h) and (g) of said section 209, in order to make good to it the guaranty provided by said section 209.

3. The commission has made final determination, as aforesaid, of the amount of the guaranty provided for by section 209 of the transportation act, 1920. Dated this 17th day of March, 1922.

Paragraph 4 of the certificate made in this case under date of January 11, 1922, reads:

The commission hereby certifies that the amount necessary to make good to said carrier the guaranty provided by section 209 of the transportation act, 1920, in addition to the amount of advances heretofore certified under section 209 (h) and partial payments heretofore certified under section 209 (g) as amended by section 212, is one hundred and sixty-one thousand, two hundred and seventy-one dollars and twenty-six cents ($161,271.26).

The commission has made final determination as aforesaid of the amount of the guaranty provided for by section 209 of the transportation act, 1920.

Based upon the certificate of January 11, 1922, settlement was made in the State and Other Departments Division of the General Accounting Office by certificate No. 2903, dated January 11, 1922, wherein the sum of $161,271.26 was allowed as "final payment " under section 209 (g) transportation act, 1920, as amended by the act of February 26, 1921, 41 Stat., 1145, and the amount allowed therein has been paid.

Accompanying the certificate of March 17, 1922, is a letter of same date from Commissioner Meyer to the Secretary of the Treasury reading as follows:

We are sending you to-day through the regular channels an original and two copies of a certificate covering a supplemental amount of $61,093.21 due the Buffalo, Rochester, and Pittsburgh Railway Company in final settlement under the provisions of section 209 of the transportation act, 1920.

This certification is supplemental to our certificate A-608, dated January 11, 1922 (which latter certificate indicated that we had made a final determination of the amount due the carrier), for the reason that the carrier has, since January 11th, made a supplemental claim for the amount above indicated.

The additional amount claimed is on account of additional compensation due under the provisions of section 4 of the Federal control act as authorized under the provisions of paragraph 1 of subdivision (c) of section 209 of the transportation act, 1920, with respect to eight hundred 55-ton hopper bottom coal cars allocated to the carrier by the Director General of Railroads on January 15, 1920, which amount the carrier failed to make claim to cover in its previous returns filed with us and as to which no record apparently had been made in the carrier's road and equipment accounts that would enable our Bureau of Finance to detect the acquisition of the equipment.

The supplemental claim, however, has been verified through the Director General of Railroads as a legitimate claim and is one which would have unquestionably been allowed by us in our previous certificate of January 11, 1922, had the amount been included in the carrier's original claim or had the cost of equipment been lodged in its road and equipment accounts, thereby enabling us to detect the acquisition thereof. We have ascertained that the Railroad Administration did allow the carrier interest at 6 per cent per annum on the cost of said equipment from January 15th to February 29, 1920, or from the date of the allocation to the date that Federal control terminated, and as to which

the commission should certify interest on the cost thereof for the period of the guaranty (six months) at 6 per cent per annum, which the above-mentioned certificate covers.

Upon a review of the matter in the light of the additional facts now appearing as evidenced by the certificate of March 17, 1922, and the letter of explanation accompanying the same, and in view of the statutory provisions involved, the settlement of January 11, 1922, is reopened and a difference of $61,093.21 is hereby certified due the Buffalo, Rochester & Pittsburgh Railway Co.

LEASES-RENEWAL AT INCREASED RENTALS.

A provision in a lease giving either party the right to terminate the lease upon sixty days' written notice does not give either party the right to change the terms of the lease during the period of occupancy, and unless and until the tenancy is terminated and the premises vacated in pursuance of proper notice the terms and conditions of occupancy remain unchanged, and any agreement on the part of a Government officer to pay increased rental is null and void.

Decision by Comptroller General McCarl, April 22, 1922:

The settlements No. 66798, of July 12, 1921, and 67379, of August 16, 1921, War Department Division, this office, of the accounts of William P. Stokey, major, Corps of Engineers, for the period from July 1, 1920, to December 31, 1920, passed for credit vouchers No. 49, August, 1920; No. 133, September, 1920; No. 131, October, 1920; No. 78, November, 1920; and No. 65, December, 1920, covering rent at the rate of $46 per month paid to the Masonic Temple Co., of Zanesville, Ohio, for office quarters occupied by the Engineer Department of the Army for the period from July 1, 1920, to November 30, 1920. It appears that the tenancy in question was created under a lease dated February 11, 1920, covering the period from January 1, 1920, to June 30, 1920, at a monthly rental of $37.50, with an option in the Government to renew under the same terms and conditions for a period not extending beyond December 31, 1920.

Relying upon a provision in said lease to the effect that same might be terminated at any time by either party upon giving 60 days' written notice to that effect to the other party, the lessor by letter dated April 21, 1920, advised that it would terminate the lease effective June 30, 1920, and that after said date the rent would be $46 per month. It does not appear that any notice to vacate the premises was served and the Government continued to occupy said premises.

What purports to be a new lease for the premises was executed October 16, 1920, covering the period from July 1, 1920, to June 30, 1921, in terms identical with the lease of February 11, 1920, except that the rent was increased from $37.50 per month to $46 per month. Under the lease dated February 11, 1920, the United States acquired a vested right to occupy the premises for the period from

July 1, 1920, to December 31, 1920, at the same rental which obtained for the period from January 1 to June 30, 1920, to wit, $37.50 per month, and it was not within the power or authority of any officer of the Government to renew the lease at a higher rental-other material conditions of occupancy being the same. Hence any lease agreement which may have been entered into purporting to fix a higher rate of rental for the period ending December 31, 1920, is, with respect to such stipulation, null and void. Therefore, no more than $37.50 per month should have been paid as rent for these premises for the period from July 1, 1920, to November 30, 1920, the period covered by the two settlements in question, and accordingly $42.50 of the amount paid on the vouchers hereinbefore mentioned should have. been disallowed.

The provision in the lease relative to termination upon 60 days' notice does not give to either party the right to change the terms of the lease during the period of occupancy thereunder. It provided only for the vacation of the premises and a complete termination of the tenancy upon the required notice. Unless and until the tenancy is terminated and the premises vacated in pursuance of proper notice as thus provided for, the terms and conditions of the occupancy remain unchanged during the entire period for which the United States acquired the right of occupancy under the original lease and any attempt to increase the rent for such period by agreement or otherwise is of no force or effect.

Since no officer of the Government had the power or authority to enter into a new lease for, or to continue the occupancy during, the period from July 1 to December 31, 1920, at a rate in excess of $37.50 per month, it must be held that the payments made in excess of said rate for the period from July 1 to November 30, 1920, were unauthorized.

Upon a review of the matter, differences of $17 and $25.50, respectively, are certified in favor of the United States.

POSTAL CLERKS-MILITARY SERVICE.

The provision in the act of March 1, 1921, 41 Stat., 1151, that the time served in the military, marine, or naval service is to be counted in determining the right of postal clerks and carriers to promotion, authorizes only that the employee be promoted to the grade he would have attained had he been originally appointed as substitute to grade one and had actually served the time covered by his military service thereafter and prior to his last appointment as a regular.

Decision by Comptroller General McCarl, April 22, 1922:

John F. McCarthy applied March 14, 1922, for a review of the action of the Post Office Department Division of the General Accounting Office in the settlement, by certificate No. P-18 of January