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per cent of the enlisted strength of the company attended the drills of the company at Altoona; and (2) whether the enlisted men who drilled at Williamsburg are entitled to pay for the drills attended there.
Per Tables of Organization No. 68–P, December 13, 1920, Company Combat Engineer Regiment (peace strength), consists of a headquarters section of 20 enlisted men and two platoons of 35 enlisted men each, a total of 90, and 3 officers. While "Tables of Organization of National Guard Engineer Lettered Companies” (M. B. Circular Letter No. 1, 1921) authorize a reduced strength for recognition, it is not material in this connection, as the roll shows that Company A during the quarter involved consisted of 89 enJisted men and 3 officers. The Williamsburg contingent consisted of 1 staff sergeant, 2 corporals, 4 privates first class, and 11 privates, total 18, while that part of the company which drilled at Altoona consisted of 3 officers and 71 enlisted men.
No orders or other authority under which certain of the enlisted men drilled at Williamsburg are submitted. The roll bears the following certificates signed by a Regular Army officer on duty with the National Guard of Pennsylvania:
I certify that the enlisted men whose names appear below constitute a platoon of Co. A, 1320 Engineers, Pa. N. G. (stationed at Altoona. Pa.), and they reside at Wiliamsburg, Pa. All the drills ordered for this platoon during this period except the one held on Oct. 17th, 1922, were held at Williamsburg, Pa., under the supervision of a noncommissioned officer, the remainder of the company drilling at Altoona on the same night. On Oct. 17, 1922, this platoon drilled with the remainder of the company at Altoona, Pa. The pay of officers is dependent on the question as to whether or not the drills conducted by this platoon comply with the law.
From what has been stated it is apparent that the Williamsburg contingent was but a part of a platoon,
part of a platoon, as the strength of the company shown on the roll indicates that there were available 69 enlisted men for the platoons, giving one platoon 35 men and the other 34, while there were but 18 men in the Williamsburg contingent represented as having drilled as a platoon.
The national defense act contemplates a Federal recognition of National Guard units before the members thereof are entitled to the benefits of the act. See sections 60 and 74 as amended by the act of June 4, 1920, 41 Stat., 780–781. Paragraph 101 of National Guard Regulations, 1922, provides:
101. “ Federal recognition " is the acceptance by the Federal Government, as National Guard, of officers or a body of enrolled officers and men who have complied with the provisions of the national defense act and who are entitled to the benefits of the act. After Federal recognition has been extended to a unit it has a Federal status in addition to its State status, and no change of
station will be made nor will an organization be disbanded or consolidated with another organization without the express authority of the Secretary of War.
The first subparagraph of paragraph 445 provides:
In order to receive credit for drill, a member of an organization must drill or participate in exercises with his own organization. However, the personnel of headquarters and service companies is such as to permit certain exceptions to be made to this regulation without loss of efficiency in the training of these organizations. The exceptions authorized are fully stated below:
None of the exceptions includes a platoon of a lettered company of a combat Engineer regiment. From what appears it is deduced that Company A was recognized as an entire unit at Altoona; and that no authority was secured from the Secretary of War for a change of station to Williamsburg of a portion of one platoon of the company. Under paragraph 445 the drill of a portion of the organization independently of the organization as a whole is not a drill for which credit is authorized. And see also 1 Comp. Gen., 585.
Whether, therefore, the Williamsburg contingent drilled at Williamsburg without authority and of their own volition, or with the permission of the company commander, they are not entitled to credit therefor, as the contingent has no status as a platoon so as to constitute a platoon their organization. Their organization is the company and its home station is Altoona.
It is suggested, however, that the requirement that enlisted men must attend 60 per cent of the ordered and prescribed drills of their organization to be entitled to pay under section 110 of the national defense act as amended by the act of June 4, 1920, is modified by the last two provisos of the first paragraph of the section, as follows:
Provided further, That the proviso contained in section 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 periods of service for which members of the National Guard may become lawfully entitled to the same pay as officers and enlisted men of the corre sponding grades in the Regular Army) may be accepted as service in lieu of such drills when so provided by the Secretary of War.
As to the first proviso quoted, it has reference to enlisted men who report for drill at the organization rendezvous for an ordered and prescribed drill, and has no application to a drill of enlisted men, a portion of an organization, without authority and away from the organization rendezvous.
As to the second proviso, there is no suggestion that the Secretary of War has established any regulations thereunder authorizing the drill of a contingent of an organization as the equivalent of a drill of the organization, and apparently such a regulation would not be in conformity with the law. The "actual military duty equivalent to the drills” contemplated is a military duty performed by the entire organization in lieu of the drills, and the equivalent duty to be accepted in lieu of drills has been defined by paragraph 928 (i) of National Guard Regulations, 1922.
The men composing the Williamsburg contingent are not entitled to pay for the drills attended at Williamsburg, not having attended & drill of their organization. It is also obvious that the men were members of the company and are required to be included in ascertaining the enlisted strength of the company for the purpose of determining whether 50 per cent of the commissioned strength and 60 per cent of the enlisted strength were present at a prescribed drill entitling the officers present to pay therefor.
The pay rolls are returned herewith and payment thereof is authorized only in so far as individual payments do not conflict with what has been herein said, and are otherwise correct.
PAYMENT OF SALARY OF EMPLOYEE OF CUSTOMS SERVICE
FROM PRIVATE SOURCES.
The payment of the salary and expenses of a customs agent by a private person
or association of persons, as an inducement for his assignment to particular line of investigation, either directly to the employee or indirectly by reimbursement to the appropriations from which his salary and expenses
are paid, is prohibited by the act of March 3, 1917, 39 Stat., 1106. Comptroller General McCarl to the Secretary of the Treasury, May 23, 1923:
I have your letter of April 17, 1923, requesting decision whether assignment of a customs agent exclusively to the single line of investigating smuggling of jewelry, upon condition that the American Jewelers' Protective Association will pay his salary and expenses for one year, would be a violation of the provisions of the act of March 3, 1917, 39 Stat., 1106, against payment of the salary of a Government official or employee or contribution thereto by any person, association, or corporation.
The statute provides: That on and after July first, nineteen hundred and nineteen, no Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government official or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this proviso shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine.
The statute applies equally to salary payments by outside parties directly to the official or employee and indirectly by way of reimbursement of the appropriation for payments made by the Government. The plan also is objectionable in that it augments the appropriation to the extent of the reimbursement. 26 Comp. Dec. 43.
Assignment of the agent to this special line of investigation is a matter of administrative discretion, but if he is so assigned there is no authority of law for an arrangement providing for collecting his salary or expenses from the American Jewelers' Protective Association.
PURCHASE OF DRINKING WATER. Where a purchase of drinking water is premised upon unwholesomeness of
the available supply of water, evidence of that fact must be either a reliable bacteriological report showing positively the presence of unhealthy bacteria, or such as indicates a pollution by an infectious medium, or the justification must be rested upon the unequivocal report of a local health
officer. Comptroller General McCarl to the Secretary of Agriculture, May 24, 1923:
I have your letter dated May 4, 1923, requesting review of so much of voucher 31338, settlement M. F. 0. 12479, dated March 9, 1923, as made payment of $7 for 100 gallons drinking water furnished by the Glenwood-Inglewood Co. to the Federal grain supervision branch, at 404 Flour Exchange Building, Minneapolis, which was disallowed as a charge upon the public funds because of being in the nature of a personal expense.
The purchase of drinking water is, ordinarily, a personal matter, and the expense may only be allowed upon the ground of necessity.
It has been recognized as a duty upon the Government to supply drinking water where none is available in the offices or other public quarters or where that furnished is unwholesome or not potable.
In the present case it is disclosed that water is furnished to the tenants of that building from an artesian well, but it is alleged that the water was unfit for human consumption. Reports upon the water were furnished by the health department of Minneapolis in 1919, and in May and June, 1922, supplemented by analysis of the bacteriological laboratory of the board of health. One sanitary analy. sis, dated July 16, 1919, shows “bacteria, 40 per cubic centimeter of water, colon present. Remarks: Chlorine, 68 parts per million; not safe for drinking purposes.” “Colon ” is explained to mean sew- . erage contamination or carelessness in collecting sample. A report dated June 20, 1922, shows “Colonies 6, gas 20 per cent, 25 cubic centimeters water, dextrose broth 15 per cent, methyl red x, saccharose, negative."
A report dated May 20, 1922, by W. F. Reasner, assistant commissioner of public health, city of Minneapolis, states:
The sample of tap water taken at your office May 16 has been examined and found not to comply with the city ordinance. The well water shows an abundance of chlorine and nitrites. The result of this sample would indicate this water to be unsafe for human consumption.
Condemnation of this water is presumed to be predicated upon the analyses through indicating the foreign matter isolated as conclusive of unhealthfulness. There is a showing of bacteria, and also nitrites, so it is stated, indicating decomposition of organic matter of some kind, and it is assumed the conviction of an unsatisfactory condition was influenced more or less by these reports.
Probably all water, other than boiled water, contains some bacteria, but water is not by that fact alone necessarily rendered unhealthy for the reason that not all bacteria are noxious, and the nature of the bacteria found is not definitely indicated as pernicious. If "colon” in the one report means that colon bacillus is found, then such a result would indicate sewerage pollution, and the disclosure is impressive.
Whether or not the sanitary analyses are clearly decisive of unhealthy water, it is proper that the responsibility for any conclusions to that effect be placed upon the report of the assistant commissioner that the water is “unsafe for human consumption.”
Upon this condition, and to allow the benefit of a doubt as to the healthfulness of the artesian water, the sum of $7 will on review be now allowed; but this exposition of the case will exhibit the necessity of requiring that where a purchase of drinking water is premised upon unwholesomeness, the evidence of that fact must be either a reliable bacteriological report showing positively the presence of unhealthy bacteria, or such as indicates a pollution by an infectious medium, or else the justification be rested upon the unequivocal report of a local health officer.
Voucher 81197, settlement 11932, for $4.20, also the subject of appeal, appears only to have been suspended; therefore the sum in