Comptroller General McCarl to the Secretary of War, May 15, 1922:

I have your letter of April 6, 1922, requesting reconsideration of decision of the Comptroller of the Treasury, December 27, 1920, 27 Comp. Dec., 579, on section 12 of the act of May 18, 1920, 41 Stat., 604, where it was held, page 583, with respect to the phrase "dependent child or children," for whom transportation is authorized on permanent change of station of officers and of certain noncommissioned officers, that:

The term as used in the act includes an unmarried person (the officer's offspring or a child legally adopted by him prior to May 18, 1920), under 18 years of age, or of any age if abnormal or insane. It does not include a stepchild, nor a child (either of his own blood or legally adopted) who is married or has attained the age of 18 years. It includes a grandchild as a dependent child if the parents of the grandchild are dead and the officer maintains the relationship of parent.

It is to be observed that there is no authority to reconsider the ruling of the former Comptroller of the Treasury in so far as payments, claims, and accounts have been made and settled in accordance therewith.

You transmit an opinion of the Acting Judge Advocate General of the Army to the effect that (1) the date fixed in that decision prior to which legal adoption must have occurred is unsupported by the law, and further (2) that if grandchildren are included so also are stepchildren, as the obligation of the grandfather and of the stepfather is because they stand in loco parentis respectively to the grandchild and the stepchild.

I agree that if legally adopted children are included in the law (and they are) the law does not require the fixing of a date prior to which adoption must have taken place, and the requirement of the decision that the adoption shall have been prior to May 18, 1920, will hereafter not be followed.

I can not agree, however, that stepchildren are included in the law. Section 12 seems to have been carefully drawn; its provisions are applicable to the wife and dependent child or children only; and the question is: Who is the dependent child of an officer or noncommissioned officer?

It is suggested that in determining the question it should be recognized that the statute is "remedial" and that it should have a liberal construction to advance the remedy of the conditions the relief of which was being legislated for. Under this view every statute increasing the emoluments or perquisites of members of the Army would be a remedial statute and entitled to liberal construction.

The statute is not remedial; it grants a right to officers and certain noncommissioned officers to have transported at the expense of the United States on permanent change of station certain specific7920°-22-Vol. 1-44

ally described persons bearing to such officer or noncommissioned officer the relationship of wife or dependent child.

A dependent child of his own blood is clearly included; as is a legally adopted dependent child subsequent to such adoption and without reference to when the adoption became effective. If an officer be legally liable for the necessaries of a grandchild it nevertheless does not broaden the class of those who are termed children in the enactment. The enactment does not embrace all who are dependent on the officer, but limits its benefits to a certain relationship, and as to children, that relationship does not embrace grandchildren. So much of the decision of the Comptroller of the Treasury, December 27, 1920, 27 Comp. Dec., 579, as included grandchildren within the benefits of the act will not be hereafter followed. Your questions are answered accordingly.

PUBLIC UTILITY CONTRACTS.

The fact that rates for certain public utilities are fixed by State or municipal laws or regulations does not authorize the informal execution of contracts therefor, and, in the absence of statutory exceptions, the requirements of section 3744, Revised Statutes, must be complied with.

Comptroller General McCarl to the Secretary of the Interior, May 16, 1922: I have your letter of May 3, 1922, as follows:

The Reclamation Service of this department, in pursuance of the act of June 17, 1902, 32 Stat., 388. and acts amendatory thereof or supplementary thereto, has occasion to enter into formal contracts with municipalities and publicservice corporations organized under State law whose rates for service rendered are fixed by legislation, either Federal, State, or municipal, or by competent regulation; for instance, a contract entered into with a telephone company for telephone service.

Your opinion is requested whether a signature to a usual form of application by a person duly authorized on behalf of the United States for such purpose will be sufficient, and not require a formal contract, as required under section 3744 of the Revised Statutes, appropriate reference to said application being made on vouchers to the schedule of rates or tariffs fixed by said laws or regulations.

Section 3744, Revised Statutes, provides:

It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally, on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof.

That section specifically requires that contracts for the War, Navy, and Interior Departments "shall be reduced to writing and signed by the contracting parties with their names at the end thereof." As this section is mandatory, having been held to be so by a long line of court decisions, as well as decisions of this office, any other method of contracting would be a violation of its provisions, unless exceptions thereto are made by law, as has been done in some instances with respect to the War and Navy Departments.

I am unable to find that any exception to this statute has been made with respect to the Reclamation Service. The fact that the State, or the State through its instrumentalities, has undertaken to fix the rates to be charged by telephone companies is not sufficient to warrant contracting for the service in any other way than that required by section 3744. A statute so specific in its requirements may not be set aside for the sake of convenience. It may be observed that there are other important and essential elements of a contract besides the mere price for the service.

Your question is answered in the negative.

PACKING AND CRATING OF HOUSEHOLD GOODS OF ARMY OFFICER.

The details governing the packing and crating of household goods of an Army officer, incident to a permanent change of station, including the maximum expense to be borne by the United States, are matters within the sound discretion of the Secretary of War, and when the maximum expense fixed by regulations of the War Department has been exceeded the excess cost is properly chargeable to the officer and his pay may be stopped to that extent Decision by Comptroller General McCarl, May 16, 1922:

J. J. Van Putten, captain, Finance Department, requested May 3, 1922, review of settlement No. W-655195, dated May 3, 1922, disallowing his claim for refund of $64.75 deducted from his pay as the excess over the packing and crating allowance for household goods when his goods were packed and crated incident to his permanent change of station November 12, 1920, from Washington, D. C., to the Panama Canal Department.

The total cost of lumber, nails, twine, excelsior, and other material, including the wages of one packer and one helper for three days, used by the Quartermaster Corps of the Army in packing and crating claimant's household goods on or about October 19, 1920, was $142.75. An itemized list showing the price per unit of the material used in the packing and crating was prepared by the Quartermaster General and sent to claimant with a request that he remit $64.75 as the excess over the allowance of $78 made by paragraph 1136, Army Regulations, 1913, as amended by changes No. 76, dated July 31, 1918, for a captain for packing and crating household goods, exclusive of professional books, incident to a permanent change of station. He dcclined to remit on various grounds, including allegations that there was a surplus of material on hand when the crating was finished; that the work was poorly done and some of the articles of his household goods were damaged in transit; that the lumber was turned over to the Army authorities when the goods were uncrated in the Canal Zone and was used in packing and crating other officers' goods; that a greater amount of household goods was crated in 1918, for

only $40; and that the charge should be canceled. Finally the Secretary of War, under the act of July 16, 1892, 27 Stat., 177, directed in circular dated August 15, 1921, that a stoppage of $64.75 be made against claimant's pay in satisfaction of his indebtedness to the United States. After the stoppage was made, claim for refund thereof was filed in the War Department Division of this office and there disallowed. Review of the disallowance has been requested on the ground that the equity in the packing and crating materials represented by the amount paid in excess of the allowance had not been settled.

The statutory authority for packing and crating household goods for officers of the Army is found in the annual appropriation acts, which for many years have provided for the transportation of the Army and its supplies, including the cost of packing and crating of baggage. The details governing such packing and crating, including the maximum expense therefor to be borne by the United States, are matters committed to the sound discretion of the Secretary of War. 22 Comp. Dec., 554.

So far as claimant's rights are concerned, this discretion was exercised in the promulgation of changes No. 76 to paragraph 1136, Army Regulations, fixing an amount of $78 as the maximum which could be used by the United States in the packing and crating of the household goods of a captain ordered to make a permanent change of station. There is no authority for the allowance of an amount in excess of that fixed by the regulations.

Whether claimant became the owner of the materials used in the packing and crating of his household goods to the value of that portion represented by the excess cost he was required to pay, and whether there was any salvage value in the material from uncrating the goods which claimant states was used by the Army, is unnecessary to determine, no objection to its use appearing to have been made by claimant at the time. The circumstances of its use can lay no basis for a claim against the United States therefor.

Upon review of the matter no differences are found due claimant and the settlement is sustained.

INCREASE OF COMPENSATION TO CIVILIAN EMPLOYEESSHIPPING COMMISSIONERS.

Under the provision in the act of March 3, 1921, 41 Stat., 1308, limiting the increase of compensation to civilian employees for 1922 to not more than 60 per cent of the rate of total annual compensation, a shipping commissioner whose salary is limited to the amount of fees collected is entitled only to an amount of the increase which added to the increase previously received in that fiscal year will not exceed 60 per cent of the total amount of fees received up to that date.

Comptroller General McCarl to C. E. Molster, disbursing clerk, Department of Commerce, May 16, 1922:

I have your letter of May 4, 1922, requesting decision whether you are authorized to pay vouchers submitted by the Bureau of Navigation of your department for salary and increase of compensation for February, March, and April, 1922, of George W. Morse, shipping commissioner at Bath, Me., whose salary is fixed at not to exceed $1,000 per annum, the actual salary to be paid to be limited to the fees collected by the commissioner.

The payments already made to the commissioner during the current fiscal year, and the amounts of the vouchers for February, March, and April, are set forth in your letter as follows:

The increase of compensation for the fiscal year 1922, as provided in the act of March 3,1921, 41 Stat., 1308, is at the rate of $240 per annum, with a proviso that no employee shall receive increase of compensation at a rate which is more than 60 per cent of the rate of the total annual compensation received by the employee.

There are two limitations on the payments of increase of compensation. First, they are not to exceed the rate of $240 per annum, which is equivalent to $20 per month, 25 Comp. Dec., 71, and, second, they are not to be more than 60 per cent of the rate of the total annual compensation. It is necessary, therefore, in making payment of increase of compensation for any month in which the amount of basic salary is less than $33.33 to ascertain, first, the total amount of basic salary, including the payment then under consideration that the employee has received during the fiscal year, and, second, the total amount of increase of compensation, including the month under consideration, that has been paid during the fiscal year. If the total of the increase of compensation is more than 60 per cent of the total of the basic salary then the increase of compensation for the month under consideration should be reduced sufficiently to bring the total increase of compensation within the 60 per cent limit.