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Section 301 of the war risk insurance act as amended by the act of June 25, 1918, 40 Stat., 611, provides monthly death compensation to a widow and one child of $35, and if there is no widow but one child of $20. Compensation to the widow continues until she dies, or remarries, upon the happening of which contingency the child is entitled to compensation in the amount which would have been payable if it had been the sole original beneficiary.
Section 23 of the act of October 6, 1917, provides that, when by the terms of the act any payment to a minor is to be made, such payment shall be made to the guardian, curator, or other person legally vested with responsibility or care of the claimant.
Upon remarriage of the mother this child became entitled in his or her own right to payment of compensation on account of the death of the father, the payments to be made to a duly constituted guardian, curator, or other authorized person for expenditure in the child's behalf. The stepfather, as such, has no legal right to or interest in these payments other than to the extent that they may tend to relieve him of the burden of the child's support.
Section 302 of the war risk insurance act as amended by the act of December 24, 1919, 41 Stat., 373, provides for payment of disability compensation in varying amounts according as there are, or are not, wife or children, or dependent parents. For payment of additional compensation on account of parents the section requires that the parents shall be dependents, but there is no such requirement in the case of wife and child. In this case the stepchild is brought within the term child as used in this connection by section 22 of the act of October 6, 1917, 40 Stat., 401, which defines that term to include “(c) A stepchild, if a member of the man's household.” While there is no express requirement that there must be a condition of dependency to support payment of compensation to a stepchild the theory of the law is dependency. The law presumes dependency in the case of a wife or minor child, but I think there is not necessarily such a presumption in the case of a stepchild whose dependency is a matter of fact to be established by proof.
In this case the compensation allowed to the stepchild in its own right is the full measure of compensation allowed by war risk in surance laws for its support. To give to the stepfather an ad ditional allowance on account of the stepchild would be in effect a duplication of the statutory allowance on its account, contrary to the intent of the law. Therefore there should be no payment of compensation to the stepfather on account of the stepchild while the latter is in receipt of compensation in its own right.
TRAVELING EXPENSES USE OF OWN AUTOMOBILE.
The allowance of mileage to employees of the Department of Agriculture for
the use of their personally owned automobiles on official travel as authorized by the act of May 11, 1922, 42 Stat., 538, is a commutation of the expense of operating such automobiles and precludes any additional allow.
ance on an actual expense basis for storage or towing charges. Comptroller General McCarl to the Secretary of Agriculture, June 20, 1923.
I have your letter dated May 31, 1923, in which after stating certain conditions affecting the travel status of field employees of that department who for travel in their own automobiles are paid compensation upon a mileage basis, as authorized by the act of May 11, 1922, 42 Stat., 538, there is requested my decision of the question submitted in the concluding paragraph thereof:
Whether, in accordance with the provisions of paragraph 32 (k) of the Fiscal Regulations of this Department, employees authorized to use their personally owned vehicles in official work on a mileage basis may be reimbursed in addition for storage charges when storage becomes necessary at points away from their official headquarters.
Paragraph 32 (k) of the Fiscal Regulations relates to travel expenses and is as follows:
(k) When specifically authorized actual operationg expenses, or mileage rates not exceeding 3 cents per mile for a motorcycle and 7 cents per mile for an automobile, for the use of personally owned vehicles in official work. Each account covering actual operating charges or mileage rates shall be supported by a certificate setting forth, in the case of actual operating expenses (a) that the charge for gasoline and oil was arrived at by actual measurements at both the beginning and end of the official trip, and (b) the mileage of each ; and in the case of mileage rates (a) the date of travel; (b) the points between which performed; (c) the actual number of miles traveled ; (d) the rate per mile and total charge; (e) the hour of departure from and arrival at official station; and (f) that the travel was officially necessary, that the distances charged are to the best of the employee's knowledge and belief, correct, and that no public or regular means of transportation could be used as advantageously in the interest of the Government. In addition to actual operating charges or mileage rates, employees using their own vehicles in official work may be reimbursed for storage charges when storage becomes necessary at points other than official headquarters. When it becomes necessary, by reason of breakdowns, impassable roads, or miring to have vehicles towed partly, or under extraordi. nary circumstances, entirely to destination, reimbursement may be made for reasonable expense of such towage, but all such charges must be fully ex. plained and in each case will be considered on its merits.
The provisions of this paragraph stipulate for “operating expenses " or "mileage rates” for an automobile for the use of personally owned vehicles in official work, and the authority to pay mileage is derived from the Act of May 11, 1922, 42 Stat., paragraph on page 538, providing:
Whenever, during the fiscal year ending June 30, 1923, the Secretary of Agriculture shall find that the expenses of travel can be reduced thereby, he may, in lieu of actual traveling expenses, under such regulations as he may prescribe, authorize the payment of not to exceed 3 cents per mile for motorcycles or 1 cents per mile for an automobile, used for necessary travel on official business.
It will be observed that the provisions of this act stipulate a condition, viz, that when the expenses of travel can be reduced thereby,
there may be paid “in lieu of actual traveling expenses,” 7 cents per mile for an automobile used for necessary travel on official business Storage charges occur incident to the use of an automobile and thus such charges represent a necessary item of the expenses arising through a use in travel. Therefore to pay a commuted travel expense at a mileage rate for an automobile used for travel and then to pay additional, for the same use, the cost of storage charges, inconsistently mingles commutation and actual expenses which results in a constructive double recompense. The act of March 3, 1875, 18 Stat., 452, provides that only actual and necessary traveling expenses may be paid. The act of May 11, 1922, is in the nature of an amendment to the act of 1875, specifically for that Department, excepting that Department from the provisions of the act of 1875, only conditionally, viz, that the mileage is in lieu of actual traveling expenses. In comparison I conceive the act of May 11, 1922, to be analogous to the act of August 1, 1914, 38 Stat., 680, which was a similar amendment to the act of 1875, providing for a per diem in lieu of actual expense of subsistence, under which section it is assumed there would not be contemplated payment of $4 per diem, and in addition, reimbursement for lodging. In either case the commutation must be held to be inclusive of the total respective expenses.
Considering the wording of the act of May 11, 1922, in connection with the act of March 3, 1875, it is apparent that the terms of the act of May 11, 1922, are in words of limitation, and there is therefore no authority to pay for storage upon automobiles in addition to mileage
for use thereof as a travel expense. There would likewise, be no authority for the payment of towage, a further provision in the regulations, as such an expense, representing an item of actual expense, can not be entertained as a matter for reimbursement additional to mileage.
Where the contract for the procurement of such services as electric current,
gas, heat, water, refrigeration, and fire-alarm service made for one fiscal year contains a provision for renewal from year to year, the renewal thereof need not be formally executed in the manner required by section
3744 of the Revised Statutes in the case of original contracts. Comptroller General McCarl to the Secretary of War, June 20, 1923.
I have your letter of June 13, 1923, in reference to a plan submitted by the Quartermaster General for simplifying and at the same time insuring renewals of fiscal-year contracts for the pro curement of such services as electric current, gas, heat, water, refrigeration, and fire-alarm service. You state:
Practically all contracts made by the War Department for these services are made under conditions which eliminate the necessity of advertising, because
no competition is possible, there being ordinarily only one source in a community from which the service can be supplied, and for a great many years it has been the custom when executing such contracts to include therein a right to renew from year to year at the option of the Government.
Great dilliculty has been and is being experienced by the Quartermaster General in securing renewals of many of these contracts, due to the fact that contractors when presented with new instruments for signature frequently insist upon changing the terms and refuse to execute contracts unless their demands are complied with. The Quartermaster General has therefore proposed that such contracts be renewed by service of notice of renewal, and by such notice ratifying, confirming, and adopting for another year the contract already in existence and duly approved and filed, thus eliminating a source of difficulty and insuring to the Government the benefit of the valuable rights which form a part of the original contract.
With your letter you inclose an opinion of the Judge Advocate General, to whom the matter had been referred, in which opinion you state that you concur, and you ask the concurrence of this office before putting the proposed procedure in operation.
In the opinion, which is addressed to The Adjutant General by 4th indorsement dated June 6, 1923, after discussing the provisions of sections 3679 and 3732, Revised Statutes, the Judge Advocate General thinks it clear that the taking of renewal options in contracts is lawful and that their operation beyond the end of the fiscal year is not only violative of no statute but is to the manifest interest of the United States. Discussing the provisions of section 3744, Revised Statutes, which require that contracts entered into by the War Department “be reduced to writing and signed by the contracting parties with their names at the end thereof," he thinks that section refers to the making of an original contract and not to the extension or renewal of a contract already executed in accord with the law and in which provision is made for renewal at the option of one of the parties. He concludes:
14. It is, therefore, my opinion that as to renewal options contained in the subsisting fiscal year contracts (see paragraph 9, Q. M. C. Form 101 and Q. M. C. Form 108, Schedule B (f); copies herewith) for the various services enumerated by the Quartermaster General, as to which no competition is possible, renewal may be accomplished, unless otherwise provided in the contracts, by service upon the contractor, on or before the first business day of the fiscal year succeeding that covered by the original service term, a notice in writing in proper form. (See J. A. G. 481, Nov. 20, 1920.) Such notice should inform the contractor that, under the provisions of the contract, identifying both the contract and the provision referred to by proper reference, the United States elects to exercise its option of renewal, and by the service of such notice does extend, renew, adopt, and ratify the said contract for the ensuing fiscal year, specifying the dates thereof. A true copy of the notice should be left with the contractor, and the usual and ordinary legal return of notice under oath made by the officer who serves it upon the contractor. The original thus returned should be filed with the proper official of the Government and a copy thereof should be filed in the Returns Office of the Department of the Interior. This same procedure may be followed each year, until the right to renew as provided by the terms of the original instrument has expired.
15. As to future contracts, however, I am of opinion that the present renewal provision should be redrafted, so as to provide explicitly for renewal upon notice by a prescribed method, such notice to be given on or before the first business day of the next succeeding year, and that the form of the notice to be given should be set out in full in the contract.
I concur in the opinion of the Judge Advocate General as quoted but deem the form of notice prescribed in the contract per paragraph 15 as unnecessary but will make no objection thereto. The notice of renewal should in each case be sent to the military division of this office to be filed with the original contract. It is assuniel the administrative office will establish the procedure with respect to filing notice of renewals in the Returns Office.
CONTRACTS-SUPPLEMENTAL AND RENEWALS.
A valid formal contract securing to the United States the right to electric
current at specified rates for the fiscal year in which executed, with the right of renewal from year to year for a limited period without any increase of rates, may not, by supplemental contracts within the time allowed for notice of renewals and without any consideration moving to the United States, be changed to increase the rates to be paid by the
Government within the authorized renewal period. Decision by Comptroller General McCarl, June 21, 1923.
Union Electric Light & Power Co. requested a review of settlement No. W-667305, dated April 19, 1923, wherein of the company's claim for $6,743.39 for electric current furnished the War Department at Jefferson Barracks, Mo., for the period July 1, 19-12, to March 31, 1923, the company was found to be entitled to $4,875.90, based on the rates of contract of April 4, 1918, and that for the period July 1, 1919, to June 30, 1922, it had been overpaid in the amount of $8,818.95.
Under date of April 4, 1918, the claimant company entered into a contract with Col. Chauncey B. Baker, Quartermaster Corps, for and on behalf of the United States, for furnishing electric current at Jefferson Barracks, Mo., for the fiscal year 1919, at the following rates:
For the first 150.000 K. W. hours of alternating current consumed during the fiscal year for lighting and small motor purposes, the rate shall be two and one half (2/2) cents per K. W. hour, and for any current consumed during the fiscal year in excess of 150,000 K. W. hours, the rate shall be one-half (14) cent per K. W. hour.
For direct current consumed in operating elevator in Post hospitals, the rate shall be five (5) cents per K. W. hour.
No monthly bills shall be less than two hundred (200) dollars. All monthly bills above two hundred (200) dollars shall be subject to a discount of 25% if paid within sixty days after end of the month in which service is rendered, provided that the application of such 25% discount shall not reduce any mcathly bill below two hundred (200) dollars net.
It is further agreed and understood that all of the electric current used for the purpose of pumping water is to be furnished at a net rate of 1.3€ per kilowatt hour
There was also a provision for renewal as follows:
13. That, at the option of the United States, this contract, with all its covenants and agreements, may be renewed yearly, as often as the needs of the public service may require, so as to give the United States continuous service, not extending, however, beyond June 30, 1929, but no renewal shall be made to include more than one fiscal year;