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further, that any or all operations herein authorized to be conducted as municipal functions may be put into effect as such upon the expiration of any of the existing contracts for the collection and disposal of city refuse or upon the failure of any of the present contractors to properly perform the work covered by their contracts.
The appropriation involved in the submission is made in the act of June 29, 1922, 42 Stat. 681. In so far as material to the question here presented to the terms of said appropriation are as follows:
To enable the commissioners to carry out the provisions of existing law governing the collection and disposal of garbage, dead animals, night soil, and miscellaneous refuse and ashes in the District of Columbia,
$750,000. The improvements contemplated under the contract with the Sparks Crematory Construction Co. are in furtherance of the provisions of the lease and another agreement, both dated January 7, 1922, under which the District of Columbia undertook to make certain improvements at a cost of not to exceed $20,000 to an incinerator plant owned by the Washington Reduction Co. (Inc.), and leased from said company by the District of Columbia for one year from July 1, 1922, with an option for a further period of four years, at a rental of $15,500 a year, payable in monthly installments.
Both the lease and the separate agreement made concurrently therewith provide for a deduction from the monthly rent at the rate of $468.33 per month for the first year and $333.33 per month for each year thereafter until the entire cost of the improvements paid for by the District shall have been recouped.
The arrangement made in this case is tantamount to an advance of funds by the District of Columbia for the erection of an extensive improvement to a plant not owned but only leased by the district. There is no specific authority of law for such advances. The provision in the act of July 11, 1919, hereinbefore quoted, and which authorizes the commissioners to purchase or lease a plant does not expressly provide for the erection of a plant or part thereof for the owner of land leased to the District, nor do I find anything in said provision to justify the assumption that such procedure was contemplated by Congress.
It has been held in some cases that appropriations available for the payment of rent may be used for necessary repairs or improvements to the rented premises; but in those cases the repairs and improvements were minor in character and it was specifically provided in the lease that they should be made as a part of the consideration for the rental. In the case here presented the contemplated improvements consist of extensive construction work—an enlargement of the plant--at a cost ($16,450) in excess of the stipulated rent for an entire year.
If the cost of the proposed improvements in this case be regarded as a part of the rent, then payment thereof at the beginning of or st any time during the first year of the tenancy, the sum to be assimilated thereafter, would be in contravention of the provisions of section 3648, Revised Statutes, because the amounts paid would be in excess of the value of the accrued rent at the time of payment.
For the reasons herein stated the questions submitted are answered in the negative.
PASSPORT FEES COLLECTED IN VIRGIN ISLANDS.
The requirement in the act of July 1, 1922, 42 Stat., 788, that passport fees
collected in the Virgin Islands be paid into the treasuries of said islands applies to the $9 fee for passports, but does not bar the retention by the official executing the application for the passport of the $1 fee for such
execution, as authorized by act of June 4, 1920, 41 Stat., 750. Comptroller General McCarl to the Secretary of State, August 18, 1922:
I have your letter of August 14, 1922, requesting decision as follows:
I beg to request your opinion as to the effect of a provision contained in "An act na king appropriations for the Navy Department and the naval service for the fiscal year ending June 30, 1923, and for other purposes," approved July 1, 1922, which reads as follows:
“For expenses incident to the occupation of the Virgin Islands and to the execution of the provisions of the act providing a temporary government for the West Indian Islands acquired by the United States from Denmark, and for other purposes, approved March 3, 1917, to be applied under the direction of the President. $343,440: Provided, That quarantine and passport fees col. lected in the Virgin Islands shall hereafter be paid into the treasuries of said islands."
Your attention is invited to the provisions of section 1 of "An act making appropriations for the Diplomatic and Consular Service for the fiscal year ending June 30, 1921," approved on June 4, 1920, which reads in part as follows:
“ From and after the 1st of July, 1920, there shall be collected and paid into the Treasury of the United States quarterly a fee of $1 for executing each application for a passport and $9 for each passport issued to a citizen or person owing allegiance to or entitled to the protection of the United States: Provided, That nothing herein contained shall be construed to limit the right of the Secretary of State by regulation to authorize the retention by State officials of the fee of $1 for executing an application for a passport,
Before communicating further with the governor of the Virgin Islands, it seems desirable to obtain your opinion to whom fees shall be paid for passport applications taken in the Virgin Islands, that is, the passport fee of $9 as well as the fee of $1 for executing the application.
The provisions of the act of June 4, 1920, 41 Stat., 750, were only changed by the later act so that amounts theretofore collected in the Virgin Islands for passport fees, and deposited in the Treasury of the United States shall from the effective date of the statute be deposited in the treasuries of the Islands.
You are advised that the fee of $1 for executing each application for a passport may be retained by the official designated by the Secretary of State to execute such passports in regulations promulgated under the act of June 4, 1920.
The amount represented by the $9 fee collected is required to be deposited quarterly into the treasuries of the Virgin Islands to be used and expended for the Government and benefit of the islands under such rules and regulations as the President may prescribe as provided in section 5 of the act of March 31, 1917, 39 Stat., 1133.
OBLIGATION OF APPROPRIATIONS BY REQUISITIONS BETWEEN
GOVERNMENT DEPARTMENTS OR ESTABLISHMENTS. An order placed by one department or establishment of the Government with
another, for a bona fide need of the fiscal year then current, obligates the appropriation current for such fiscal year on the same basis as an order placed for such a need pursuant to a valid contract with other than such department or establishment of the Government, and, if there be a default in delivery by such department or establishment, the articles or supplies may
be procured otherwise and charged under the appropriation thus obligated. Comptroller General McCarl to the Secretary of War, August 18, 1922:
I have your letter of August 2, 1922, reading:
1. On June 3, 1922, this office issued procurement authority No. QM 1644 in the sum of $100,000.00 to the quartermaster supply officer, Chicago general intermediate depot, Chicago, Ill., covering the procurement of a large quantity of motor transport tools necessary to complete sets and shop units.
2. When the circular advertisement was issued on June 7, 1922, the General Supplies Committee advised that certain of these supplies were on hand at Hog Island, Pa., under jurisdiction of the United States Shipping Board. Under existing regulations it was necessary that calls be placed on the Shipping Board. Under date of June 29, 1922, this office initiated requisition on the U. S. Shipping Board, after verification of the availability of the supplies, for the items reported by the General Supplies Committee. On July 28th the Shipping Board advised that the supplies are not available and will not be supplied.
3. In view of the foregoing, decision is requested as to whether or not in this instance the Shipping Board may be considered as a defaulting contractor and the supplies be procured now under the appropriation for fiscal year 1922, provided the original allotment of funds covered by procurement authority No. 1644 in the sum of $100,000.00 is not exceeded.
The matters primarily for consideration are (1) the availability of the balances of appropriations necessary to the fulfillment of contracts properly made during the period when such appropriations were current and available for obligation, (2) the use in an ensuing fiscal year of the balance under an annual appropriation, the use of which during the fiscal year for which the appropriation was made was prevented by the default of a contractor, etc., and (3) the effect of an order or requisition on another department or establishment of the Government if such order, requisition, etc., was issued during the period when the appropriation sought to be charged was current and available for obligation.
As to (1): In decision of April 17, 1922, to the Secretary of Commerce, 8 MS. Comp. Gen., at page 1083, it was said:
balances of appropriations necessary to the fulfillment of contracts made within a particular fiscal year are available for the payment of obligations thereby incurred if such contracts properly were made; that is, in form properly executed and for bona fide needs of the fiscal years current when the contracts were made.
As to (2): In decision of July 7, 1902, 9 Comp. Dec., 10, quoting the syllabus, it was said:
The use in the ensuing fiscal year of the balance of an annual appropriation, the use of which during the fiscal year for which the appropriation was made bad been prevented by the default of a contractor, is not prohibited by section 3690, Revised Statutes.
As to (3): In decision of October 5, 1921, 2 MS. Comp. Gen. 198, rendered on the basis of your request, you were advised, as to a request of or order on the Attorney General to prosecute condemnation proceedings for the acquirement of certain lands, as follows:
The appropriation was limited to the fiscal year 1921 and the question is whether au obligation was credited against it within that fiscal year.
The appropriation could be obligated only by the action of the department to which it was made. This action was taken well within the fiscal year by the request upon the Attorney General to begin the condemnation proceedings and by the allotment of funds. It was the equivalent of an order issued for a purchase the delivery of which is delayed, but which order nevertheless is chargeable to the fiscal year in which issued.
As the present request for decision is in general terms, unaccompanied by data showing the appropriation to be charged, etc., the decision must likewise be general. Generally, an order or requisition placed with another department or establishment, as under the facts submitted, has the effect of any order otherwise placed pursuant to a valid contract, and if there was a default in delivery by such department or establishment, the matter, as affecting the appropriation sought to be charged, would be on the same basis. Therefore, if the order placed with the Shipping Board was for a bona fide need of the fiscal year current at the time such order was placed, etc., the articles, etc., ordered but not delivered may be procured otherwise and charged under the appropriation as to which the procurement authority was issued, provided such appropriation was otherwise available.
PER DIEM IN LIEU OF SUBSISTENCE-ARMY FIELD CLERKS.
An Army field clerk appointed for service abroad can not be regarded as on
temporary duty while serving at the station to which regularly assigned abroad, and is not entitled to a per diem at the rate of $4 during any part of the period of his service at such station notwithstanding the fact that orders may have been issued purporting to designate such service as tem.
porary duty. Decision by Comptroller General McCarl, August 19, 1922:
David G. Coran applied April 12, 1922, for a reopening and review of a settlement made by the Assistant Auditor for the War Department in France February 13, 1919, and affirmed by the Assistant Comptroller of the Treasury in France March 10, 1919, in which was disallowed his claim for difference between per diem at the rate of $4 and $2 for the period from January 30, 1918, to February 28, 1918, while on duty as an Army field clerk at Paris, France. The material facts in this case and the grounds on which the settlement in question was based are set forth fully in the decision of the Assistant Comptroller of the Treasury in France dated March 10, 1919, and need not be repeated here. I find no error in the statement of facts or conclusion of law announced in said decision and no material facts are now presented which were not under consideration when said decision was rendered.
It appears that claimant was appointed December 14, 1917, as an Army field clerk for service abroad; that by order dated December 14, 1917, he was directed to proceed without delay to New York City and report in person to the commanding general, Eastern Department, for temporary duty at general headquarters while awaiting available tarnsportation to France; that by said order he was also directed to proceed by first available transport to France and to report to the commanding general of the A. E. F. for duty; that said order stipulated that per diem of $4 would "be paid to these clerks while traveling and while on temporary duty as indicated, as provided for under paragraph 733, Army Regulations, 1913”; that by order of the commanding general of the Eastern Department dated February 21, 1917, he was directed to report to the general superintendent, Army Transport Service, for first available transportation to France and upon arrival there to report to the commanding general A, E, F. for assignment to duty; that he sailed from New York January 7, 1918, arrived at Liverpool January 17, 1918, and proceeded to Blois, France; that by order dated at Blois January 28, 1918, he was directed to proceed to Paris, and report to Lieut. Col. H. E. Wilkins, Q. M. C.; that he arrived at Paris 9 p. m., January 29, 1918, and on January 30, 1918, entered upon the duty for which he was appointed; and that under date of March 25, 1918, an order was issued by the adjutant, headquarters casual officers' depot, Blois, purporting to amend the order of January 28, 1918, so as to indicate that the assignment to Paris was for temporary duty.
Claimant contends that his duty at Paris was temporary duty and that accordingly he was entitled to per diem at the rate of $4 for the first 30 days of such duty.
The order of March 25, 1918, is of no force or effect in so far as claimant's status while on duty at Paris is concerned. He did not have a regular duty station in the United States. He was appointed for service abroad and Paris was the station at which he was regularly assigned for duty abroad.
Upon a review of the matter no difference is found and the settlement made February 13, 1919, as affirmed March 10, 1919, is sustained.