GOVERNMENT FUEL YARDS-GASOLINE.

The acts establishing the Government fuel yards and appropriating therefor limit its operations to the handling of fuel such as handled by coal dealers generally, and the appropriations for the Government fuel yards, 42 Stat., 589 and 1210, are not therefore available for the purchase of gasoline for distribution to the Government service.

Comptroller General McCarl to the Secretary of the Interior, April 17, 1923: I have your letter of March 20, 1923, transmitting a communication from the Director of the Bureau of Mines and requesting a decision of the matter therein submitted, as follows:

The sundry civil act approved July 1, 1918, establishing the Government fuel yard, 40 Stat., 672, provides as follows:

The Secretary of the Interior is authorized and directed to establish in the District of Columbia storage and distributing yards for the storage of fuel for the use of and delivery to all branches of the Federal service and the municipal government in the District of Columbia and such parts thereof as may be situated immediately without the District of Columbia and economically can be supplied therefrom, and to select, purchase, contract for, and distribute all fuel required by the said services. Authority is granted the Secretary of the Interior, in connection with the establishment of the said yards, to procure by purchase, requisition for immediate use, condemnation, or lease for such period as may be necessary, land, wharves, and railroad trestles and sidings requisite therefor. All branches of the Federal service and the municipal government in the District of Columbia, from and after the establishment of the said fuel yards, shall purchase all fuel from the Secretary of the Interior and make payment therefor from applicable appropriations at the actual cost thereof to the United States, including all expenses connected therewith;

For the establishment of the fuel storage and distributing yards herein authorized, including the procurement of the necessary lands, wharves, railroad sidings, and trestles; storing, handling, and distributing equipment, including motor-propelled passenger-carrying vehicles for inspectors; and all other expenses requisite for and incident thereto, including personal services in the District of Columbia, $432,300, to be available immediately;

For the purchase and transportation of fuel; storing and handling fuel in yards; maintenance and operation of yards and equipment, including motorpropelled passenger-carrying vehicles for inspectors, rentals, and all other expenses requisite for and incident thereto, including personal services in the District of Columbia, $1,154,088, to be available immediately: Provided, That all moneys received from the purchase of fuel during the fiscal year nineteen hundred and nineteen shall be credited to this appropriation and be available for the purposes of this paragraph: Provided further, That no part of any moneys herein or hereafter appropriated shall be used for the purpose of taking over or in any way interfering with the yards or coal dumps or other facilities for storage and distribution of coal that have been used and occupied in the past year by coal dealers for supplying the general public;

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The question has come up as to whether, under this legislation, the Government fuel yard can purchase and distribute gasoline, the same as it now purchases and distributes coal, wood, and other fuels. It will be appreciated if an opinion on the question is secured from the Comptroller General.

Gasoline is a fuel in a restricted sense, and the question is as to whether it is of the character of fuels contemplated for handling, storing, dispensing, etc., by the Government fuel yards.

The last proviso of the act, 40 Stat., 673, providing

That no part of any moneys herein or hereafter appropriated shall be used for the purpose of taking over or in any way interfering with the yards or coal dumps or other facilities for storage and distribution of coal that have been used and occupied in the past year by coal dealers for supplying the general public;

indicates the character of fuel contemplated for handling, storing, dispensing, etc., namely, fuel such as that handled by coal dealers generally, to wit, coal, wood, and like fuels.

The statements by Doctor Manning, former Director Bureau of Mines, particularly as reported, page 255, "Hearings before Subcommittee of House Committee on Appropriations, sundry civil bill, 1920," indicate quite clearly the character of fuel contemplated for handling, etc., by the Government fuel yards, as do the statements of Doctor Bain, the present Director, Bureau of Mines, page 711, "Hearings before Subcommittee of House Committee on Appropriations, Interior Department appropriation bill, 1923."

In the hearings, sundry civil bill, 1920, page 255, the former director stated:

I want to show to Congress, and I can show to Congress, that the Government can run a coal business as any private concern would run it.

In the hearings, Interior Department appropriation bill, 1923, page 711, the present director stated:

The other field is the operation of the Government fuel yard. That is a business enterprise which has been placed under the Bureau of Mines because of the thought that if the Government is going to buy and sell coal for its own use, it should be in the hands of men who know coal, and our direct contact with the coal industry insures that.

The current appropriation, fiscal year 1923, for the Government fuel yards, 42 Stat., 589, provides:

Government fuel yards: For the purchase and transportation of fuel; storing and handling of fuel in yards; maintenance and operation of yards and equipment, including motor-propelled passenger-carrying vehicles for inspectors, purchase of equipment, rentals, and all other expenses requisite for and incident thereto, including personal services in the District of Columbia, the unexpended balance of the appropriation made for these purposes for the fiscal year 1922 is reappropriated and made available for such purposes for the fiscal year 1923, and of such sum not exceeding $500 shall be available to settle claims for damages caused to private property by motor vehicles used in delivering fuel: Provided, That all moneys received from the sales of fuel during the fiscal year 1923 shall be credited to this appropriation and be available for the purposes of this paragraph;

The appropriation, fiscal year 1924, for the Government fuel yards, 42 Stat., 1211, is no different in its provisions as affecting the matters here at issue.

In view of the evident intent of the act establishing the Government fuel yards and the other acts making appropriations therefor and in furtherance thereof, which appears to have been to confine the scope of this activity to the running of a Government "coal business" or, as otherwise expressed, to buying and selling coal, I am constrained to hold that the appropriations for "Government fuel yards," 42 Stat., 589 and 1210, are not available for the purchaseof gasoline for distribution, etc.

PURCHASE OF COAL-PRICE ADJUSTMENT.

In adjusting the price of coal delivered under a contract providing for such adjustment for failure to meet the required analysis, and in which the price is stated at so much per ton f. o. b. mines, plus a specified freight rate which freight rate is subject to increase or decrease to meet changes in freight tariffs, the adjustment should be made on the net price per ton 1. o. b. the mines.

Comptroller General McCarl to Capt. T. S. Pugh, United States Army, April 18, 1923:

By letter dated April 4, 1923, forwarded through Chief of Finance, you transmit with request for decision whether payment thereon is authorized, a voucher in favor of Superior Rock Springs Coal Co. for $378.06, being the amount of the retained percentages on 541.26 tons of coal delivered at Vancouver Barracks, Wash., under contract dated August 6, 1922, less a deduction for failure of the coal to comply with the specifications.

The contract provides for an adjustment in price should the coal delivered show, upon analysis, B. t. u. deficiency, or an excess of ash, or otherwise not comply with the specifications, but the deduction as stated on the voucher is on the basis of the price of the coal at the contractor's mines, to wit, $4 per ton, whereas the price fixed in the contract is $9.515 per ton f. o. b. cars Vancouver Barracks, Wash. On the basis of mine price the deduction would appear to be $136.94, whereas on the basis of delivered price the deduction would be $325.30.

The only adjustment which a disbursing officer is authorized to make under such contracts on account of failure of the coal to comply with the specifications is an adjustment on the basis of the price as fixed in the contract, which in this case is $9.515. And it would have been proper for you to have advised the contractor to that effect and that its recourse if dissatisfied with such adjustment would be to file a claim in the General Accounting Office for direct settlement. However, since it appears that there will be other payments under this contract involving price adjustments, the question as to whether such adjustments should be based upon the mine price or the delivered price under this contract may now be decided upon your submission.

It is noted that the contractor's proposal which is attached to and made a part of the contract does not quote a delivered price but stipulates a price of $4 per ton f. o. b. mine and states what the freight rate would be from the mine to Vancouver Barracks.

Paragraph 13 of the conditions and specifications printed on the reverse side of the form on which the proposal was submitted-and which were expressly made a part of the contract-authorized the bidder to quote a price f. o. b. mines and required that a statement

of the freight rate be submitted in such cases. Paragraph 14 of said conditions and specifications provides:

It is understood and agreed that when the price quoted is delivered at any Army post, camp, or station, said price is based on the present freight rate as established by the railroad tariffs, and that said price is subject to change to correspond with any change that may be made in these freight rates during the life of the contract.

It is clearly shown in this case that the delivered price as fixed in the contract was made up of the bid price of $4 per ton plus the freight rate.

The only provision in the contract here in question under which adjustment of price is authorized is that found in paragraph 11 of the conditions and specifications which reads:

If, upon inspection of coal at time of delivery at the camp, post, or station, it is found that coal is of an inferior quality, or has not received careful and thorough preparation, the contracting quartermaster will have the right to penalize the contractor by making payment of only 90 per cent of the amount of the invoice, based on the tonnage delivered, at the contract price. The 10 per cent withheld is to cover any deduction on account of delivery of coal which, on analysis and test, is subject to an adjustment in price.

the result of these analyses shows at any time during the life of the contract 3 per cent of moisture above that specified, 2 per cent of ash above that speci fied, or 2 per cent of B. t. u. below that specified in the original contract, the contractor will be penalized accordingly.

Considering the contract as a whole, including the proposal and the conditions and specifications printed on the reverse side thereof, the intent and purpose would appear to be that the adjustment be made on the basis of the price f. o. b. mines as stated in the proposal. You are advised, therefore, that adjustment on the basis of $4 per ton, rather than $9.515 per ton, is authorized.

TRANSPORTATION OF FAMILIES AND EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE.

The act of January 5, 1923, 42 Stat., 1113, appropriating a limited amount to pay the actual and necessary expenses of transportation and subsistence of the families and effects of officers and employees of the Bureau of Foreign and Domestic Commerce, subject to such regulations as the Secretary of Commerce may prescribe, makes it incumbent upon the Secretary of Commerce to prescribe such regulations as will limit the expenditures so authorized to the amount approriated even though it may be necessary to limit the reimbursement to only a part of the actual expense incurred.

Comptroller General McCarl to the Secretary of Commerce, April 19, 1923:

By letter dated April 12, 1923, reference is made to the provision in the act of January 5, 1923, 42 Stat., 1113, relative to payment of traveling expenses of families of officers and employees of the Bureau of Foreign and Domestic Commerce, under certain conditions, and decision is requested whether you are authorized to promulgate. regulations vesting in the director of the bureau discretion to deter

mine the amount, if any, to be allowed in a given case coming within the law.

The provision in question reads:

Transportation of families and effects of omcers and employees: To pay the itemized and verified statements of the actual and necessary expenses of transportation and subsistence, under such regulations as the Secretary of Commerce may prescribe, of families and effects of officers and employees of the Bureau of Foreign and Domestic Commerce in going to and returning from their posts, or when traveling under the order of the Secretary of Commerce, but not including any expenses incurred in connection with leave of absence of the officers and employees of the Bureau of Foreign and Domestic Commerce, $15,000: Provided, That no part of said sum shall be paid for transportation on foreign vessels without a certificate from the Secretary of Commerce that there are no American vessels on which such officers and clerks may be transported.

You state that the amount appropriated will not be sufficient to pay the actual expenses in all cases coming within the provision and you propose to give the director authority to so limit the cases in which allowance will be made and the amount to be allowed in cases in which an allowance is to be made that the entire amount appropriated for the fiscal year will not be exceeded.

There is no general law giving to officers and employees of the Bureau of Foreign and Domestic Commerce the right to have their families and effects transported at Government expense and the provision made for that purpose for the fiscal year 1924 is limited to the amount appropriated therefor. The amount appropriated is to be expended "under such regulations as the Secretary of Commerce may prescribe." Therefore it would seem that the law not only authorizes but requires that the expenditures under said appropriation be so limited and restricted by regulation that the amount appropriated for the fiscal year will not be exceeded.

In no case may the amount paid exceed "the actual and necessary expenses of transportation and subsistence," and, if deemed necessary to avoid creating a deficit, it is legal and proper to prescribe regulations under which only a part of the actual and necessary expenses of transportation and subsistence in any case will be paid. The question presented is answered accordingly.

LONGEVITY PAY TO PRINCIPALS OF NORMAL, HIGH, AND MANUALTRAINING HIGH SCHOOLS IN THE DISTRICT OF COLUMBIA.

As the provision for longevity increase of $100 per year for five years to the principals of the normal, high, and manual-training high schools in the District of Columbia, in addition to the basic salary of $2,700 per annum, was first included in the act of June 5, 1920, 41 Stat., 850, and provided that for the fiscal year 1921 the longevity increase should be next above the salary receiving on June 30, 1920, which was the basic salary of $2,700, the maximum longevity increase for these principals for the year 1921 was $100; for 1922, $200; for 1923, $300.