« ForrigeFortsett »
was $1,100 per annum. Under the provisions of the act of February 28, 1919, 40 Stat., 1198, the next automatic promotion would be to grade three at $1,200 on July 1, 1919, then to grade four on July 1, 1920, the salary of which, under the act of June 5, 1920, 41 Stat., 1049, was $1,700. This was the salary and grade to which claimant “ would have progressed” and to which, under the law hereinbefore quoted, he was entitled to be appointed on December 5, 1920, and he was not entitled under the law to advancement to grade five at $1,800 until after one year from July 1, 1920, or on July 1, 1921. This was the basis on which the settlement of the claim was stated and which resulted in disallowing the claim.
Upon a review of the matter no differences are found and the settlement of January 31, 1922, is sustained.
RELIEF OF AMERICAN SEAMEN. An alien shipped on an American vessel in a foreign port and discharged in
a foreign port because of illness or injury incapacitating him for service is not such an American seaman as is entitled to relief under paragraph 260 of the Consular regulations, but such seamen may be furnished temporary relief and protection within the discretion of the Secretary of State from the annual appropriations for the relief and protection of American
seamen in foreign countries. Comptroller General McCarl to the Secretary of State, April 22, 1922:
I have your letter of April 7 requesting decision whether "aliens shipped on American vessels in foreign ports and discharged in foreign ports because of illness or injury incapacitating them for service are entitled to relief under the same conditions and circumstances as American seamen as defined by paragraph 260 of the Consular Regulations."
Paragraph 260 of the Consular Regulations reads:
Seamen entitled to relief.-Seamen of the United States entitled to relief when destitute are:
1. Merchant seamen, being citizens of the United States, or persons coming under the provisions of section 2174 of the Revised Statutes, and who, at the time of applying for relief, are by habit and intent bona fide members of the American merchant marine, although their last service may not have been in an American vessel.
2. Foreigners regularly shipped in an American vessel in a port of the United States.
Section 2174, Revised Statutes, referred to in the paragraph just quoted, provides that under certain circumstances a seaman who is an alien shall be entitled to protection as an American citizen after the filing of his declaration of intention to become such citizen.
It is clear that an alien who ships on an American vessel in a foreign port and who is discharged in a foreign port does not come within either of the classes of seamen referred to in paragraph 260 of the Consular Regulations as entitled to relief and it has been held that such seamen are not entitled to transportation at the expense of the United States under the provisions of section 4581, Revised
Statutes, as amended by the act of December 21, 1898, 30 Stat., 759. See 27 Comp. Dec., 617.
I agree with the conclusion announced in the decision cited and therefore it must be held that the law does not require that an alien shipped on an American vessel in a foreign port and discharged in a foreign port on account of illness or injury be furnished the same relief as is provided by law for seamen of the classes defined in paragraph 260 of the Consular Regulations. But since all seamen on American vessels may be regarded as American seamen for certain purposes an alien who ships on an American vessel in a foreign port and is discharged in a foreign port on account of illness or injury may be furnished such temporary relief and protection as you may deem necessary and proper under authority of the annual appropriation made for the relief and protection of American seamen in foreign countries. See provision in the act of March 2, 1921, 41 Stat., 1216, for the fiscal year 1922.
STATE TAX OR LICENSE FEE.
A State law requiring dealers to pay a specified tax per gallon on all sales of
gasoline for the privilege of doing business within the State imposes a tax on the dealer and not on the consumer, and sales to the Federal Government are not exempt therefrom. 1 Comp. Gen., 229, distinguished.
Comptroller General McCarl to the Postmaster General, April 22, 1922:
I have your letter of April 3, 1922, requesting decision of a question therein presented, as follows:
It has been brought to the attention of this Department that the State of South Carolina has imposed a tax on gasoline consumed in that State in the following language, which is quoted from the Act approved by the Governor on February 23, 1922:
“That every oil company doing domestic or intrastate business within the State and engaging in the business of selling, consigning, using, shipping, or distributing for purpose of sale within this State any gasoline or any substitute therefor, or combination thereof, for the privilege of carrying on such business shall be subject to the payment of a license tax, which tax shall be measured by and graduated in accordance with the volume of sales of such oil company within the State. Every such oil company shall pay to the State Treasurer an amount of money equal to two (2) cents per gallon on all gasoline, combinations thereof or substitutes therefor, sold or consigned, used, shipped or distributed for the purpose of sale within this State.”
The State has raised the point that this tax is a license fee on the dealer and not a tax on the consumer, and for that reason it has notified the Charleston Oil Company, of Charleston, South Carolina, that it will be required to pay a license fee of 2¢ a gallon on all sales, whether to the Federal Government or to a private consumer. The effect of this Act will be to increase the price of gasoline 2¢ a gallon in the State of South Carolina, as the above-mentioned company quotes two different prices, depending on whether the Federal Government is required to pay a 2¢ additional license fee required of it by the State. A ruling as to whether this fee can properly be paid by the Federal Government is requested.
It is well settled that a State may not impose a tax on Government property or any of its instrumentalities or agencies. It is also well recognized that a State, subject to that rule and except where restrained by provisions of its own constitution, is subject to no control or interference from any source in the exercise of its governmental powers, among which is the right of taxing the property or the business and occupation of its citizens and others within its jurisdiction or reach. The title of the act in question reads
AN ACT To Impose a License Tax Upon the Business of Dealing in Gasoline, Combinations thereof, and Substitutes therefor, When Sold in This State.
It appears that the contention of the State is that the act imposes no tax in the ordinary sense of that term, but lays a tax on oil companies doing business within the State. There is a recognized distinction between the two, but it is not necessary to decide that point in this case, the question being, does the act contravene any right or prerogative of the Government? I think it does not. The act describes the imposition as a "license tax” which is measured by an amount of money equal to two cents per gallon on the quantity sold. I think it clear that the tax, license tax or fee, whichever it may be, is placed on the dealer and not on the purchaser, be the purchaser the Government or an individual. The right of a dealer to fix the price of the gasoline it sells must be admitted, and how the price is constituted or arrived at is not material. 25 Comp. Dec., 862. This case is clearly distinguishable from 1 Comp. Gen., 229. In that case the tax was clearly placed on the purchaser of the oil and therefore could not be exacted of the Government.
NATIONAL GUARD-DRILL PAY FOR MEMBERS OF NONCOMMIS
SIONED OFFICERS' SCHOOL.
The assembly of noncommissioned officers of the National Guard for instruction
independently of their companies is not attendance at drills ordered for their organizations or companies and does not entitle such officers to pay as for attendance at drills.
Decision by Comptroller General McCarl, April 24, 1922:
The Chief of the War Department Division has submitted a memorandum decision construing section 92 and the first paragraph of section 110 of the National Defense Act, 39 Stat., 206, and 41 Stat., 784, in connection with payments made to certain of the noncommissioned officers of Company B, Fourth Infantry, Kansas National Guard, for the semiannual period ended June 30, 1921, on voucher 437, August, 1921, accounts of Maj. E. F. Ely, F. D., U. S. Army, for attendance at noncommissioned officers' school in addition to the drills prescribed for the organization as a whole.
The captain of the organization has certified that drills and “schools” were ordered for the organization during the period in question on dates as follows:
Regular drills : January 3, 10, 17, 24, 31, total 5; February 7, 14, 21, 22, 28, total 5; March 7, 14, 21, 28, total 4; April 4, 11, 18, 25, total 4; May 2, 9, 16, 23, 30, total 5; June 6, 13, 20, 27, total 4.
Noncommissioned officers' schools: January 6, 13, 20, total 3; February 1, 17, total 2; March 10, 17, 24, total 3; April 7, 14, 21, 28, total 4; May 5, 12, 19, total 3; June 2, 9, 16, 23, total 4. The combined drills and schools each month, recapitulated, are:
Drills. Schools. Total. January
دن بافت ها و
27 1946 Technical Sergt. Stanley C. Madison, who was discharged on expiration of enlistment, May 3, 1921, is shown as having attended drills and was paid therefor as follows: January--February-
It is apparent that attendance at the noncommissioned officers' school was treated as attendance at drills during the months January to April, inclusive.
Section 92 of the national defense act requires that each company shall assemble for drill and instruction not less than 48 times each year and that credit for an assembly for drill or for indoor target practice shall not be given unless the number of officers and enlisted men present for duty at such assembly shall equal or exceed a minimum to be prescribed by the President. The first paragraph of section 110 provides for compensation for enlisted men of the National Guard at the rate of one-thirtieth of the initial monthly pay of his grade for each drill ordered for his organization where he is officially present and participates for the prescribed period, not exceeding & in any calendar month nor 60 in one year, and concludes with provisos as follows:
Provided. That no enlisted man shall receive any pay under the provisions of this section for any month in which he shall have attended less than 60 per centum of the drills or other exercises prescribed for his organization: Provided further, That the proviso contained in sectoin 92 of this Act shall not operate to prevent the payment of enlisted men actually present at any duly ordered drill or other exercise: And provided further, That periods of any actual military duty equivalent to the drills herein prescribed (except those peroids of service for which members of the National Guard may become lawfully entitled to the same pay as officers and enlisted men of the corresponding grades in the Regular Army) may be accepted as service in lieu of such drills when so provided by the Secretary of War.
The plain and clearly expressed intent of the statute is that the drills or equivalent military duty for which payment is authorized shall be of the entire organization and not of a selected portion thereof. The noncommissioned officers of a company do not constitute a military organization, they are but a part of the organization, the company—contemplated by the statute. It must follow that an assembly for instruction of the noncommissioned officers of a company independently of the remainder of the company, does not constitute an assembly of the company under section 92 for which the company is entitled to credit; nor a drill ordered for the organization under section 110. Attendance at such a school for noncommissioned officers is not attendance at a drill ordered for their organization, and payment for such attendance is not authorized as for attendance at an ordered drill of the organization.
As this is the conclusion reached in the memorandum decision, it is approved. However, in view of the fact that the schools for noncommissioned officers were authorized by superior State officials and the fact that the intent of the statute is disclosed by an examination of the entire act relating to the National Guard, payments heretofore made for attendance at schools for noncommissioned officers in the circumstances herein indicated will be passed to the credit of the disbursing officer making the payments.
CONTRACTS-ATTACHED PAPERS. Where the invitation for bids provides that same may be submitted otherwise
than upon the blank forms provided and that the proposal will be attached to and form a part of any contract entered into as a result thereof, and a bid with a qualification as to price is submitted on a paper attached to the printed form, the acceptance of the bid and the execution of a formal contract with the printed proposal form attached thereto incorporates the terms of the proposal in the formal contract, and the Government is liable for an increase of the contract price based upon a corresponding increase in freight
rates as provided for in the proposal. Decision by Comptroller General McCarl, April 24, 1922:
Frank Carroll & Co. applied January 30, 1922, for a review of the settlement, No. 788886, dated July 9, 1921, War Department Division of this office, disallowing claim for $959.79 based on increases in freight rates which became effective after July 1, 1920, the date their contract No. 2394 for furnishing and delivering certain quantities of cord wood was entered into, and before deliveries were completed in accordance with the requirements of said contract.
The material facts in this case appear to be as follows:
The proposal on which the contract was based was dated May 14, 1920, and after quoting prices for wood to be furnished at different places in Texas contained a stipulation as follows: