were consistently held not applicable to cover any other refunds or payments authorized by the other divisions or clauses of section 3220, Revised Statutes, and until appropriations were provided under the act of February 24, 1919, 40 Stat., 1145, repealing section 3689, Revised Statutes, and directing annual estimates and appropriations in lieu thereof, each individual judgment was certified to Congress for payment. The decision cited, 2 Comp. Gen., 501, held that the annual appropriations now provided for refund of taxes were equally as applicable to claims adjudicated by a competent court as those adjudicated by the Commissioner of Internal Revenue, thereby extending the availability of such appropriations to payments under the second division or clause of section 3220, Revised Statutes. The decision does not extend the availability of the annual appropriations for refund of taxes so as to pay the costs of suits under other internal revenue laws, such as the narcotic act, not involving the refund of illegal taxes.

The act of February 24, 1919, 40 Stat., 1145, directed the Secretary of the Treasury to submit:

an estimate of appropriations to refund and pay back duties or taxes erroneously or illegally assessed or collected under the internal revenue laws, and to pay judgments, including interest and costs, rendered for taxes or penalties erroneously or illegally assessed or collected under the internal revenue laws.

The annual estimates and appropriations made pursuant to this direction refer to this act and could not be construed to be available for payment of costs of any suit not involving the refund of taxes.

The amount allowed by the settlement here involved is a legal claim against the United States under the third division or clause of section 3220, Revised Statutes, but as no appropriation has been provided for its payment, it is a claim which the General Accounting Office has jurisdiction to allow and certify, the amount thereof to be reported by the Secretary of the Treasury to Congress as a certified claim.

The certificate of settlement is herewith returned for certification to Congress and payment in the usual manner.

TRAVELING EXPENSES-RETIRED DISTRICT JUDGES.

A retired United States district judge when traveling under competent orders from the place selected as his residence after retirement to his former district for the performance of judicial duties and return is entitled to his expenses of travel and maintenance to be paid in the same manner and from the same appropriation as are the expenses of circuit court judges traveling from one circuit to another.

Comptroller General McCarl to the Attorney General, June 27, 1923.

There has been received your letter of June 18, 1923. It appears from your submission that on June 30, 1923, the Hon. Page Morris,

United States district judge, St. Paul, Minn., will retire from active service; that upon his retirement he proposes to reside at Pasadena, Calif., and that a formal assignment has been made by order of the senior circuit judge, under the provisions of section 6 of the act approved February 25, 1919, 40 Stat., 1157, for his return to his former district-Minnesota-for a conference with the other judges with whom he sat in a number of cases in that court, in which cases definite conclusions have not been reached when the judge will be retired. The question is under what appropriation the expenses of the retired judge would be paid in going to and returning from his former district under the assignment stated.

A retired judge is subject to be called upon for temporary duty by the senior circuit judge, Chief Justice, or by the presiding judge or senior judge of any other such court to perform such judicial duties in such court as he may be willing to undertake.

The expenses of a United States judge while traveling on official business and away from his official residence are provided for in section 259 of the Judicial Code, 36 Stat. 1161, which section provides that the official place of residence shall be at that place nearest his actual residence at which either a circuit court of appeals or a district court is regularly held, but is silent as to the place of residence of a retired judge, who is deemed to be at liberty to select the place at which he desires to reside during the residue of his natural life.

Pasadena, Calif., having been selected by Judge Morris as the place of his residence after his retirement from the bench, he is entitled, upon competent order, a copy of which should be attached to the voucher, to his expenses of travel and maintenance in going to and returning from his former district, to be paid in the same manner and from the same appropriation as are the expenses of circuit court judges in travel from one circuit to another.

REGULAR ARMY RESERVE-RESERVIST PAY.

The regulations for the government of the Regular Army Reserve prescribed pursuant to the act of June 3, 1916, 39 Stat., 188, have the force and effect of law, and upon failure of the members of the reserve to report periodically as required thereby no right to reservist pay attaches.

Decision by Comptroller General McCarl, June 29, 1923.

Frank B. Dougherty requested February 20, 1923, review of settlement No. W-882184, dated January 24, 1923, wherein was disallowed his claim for reservist pay from March 8, 1920, to June 4, 1920.

The claim was disallowed for the reason that claimant had failed to comply with the regulations for the Regular Army Reserve for

the period and there was therefore no authority for the payment to him of reservist's pay for such period.

The act of June 3, 1916, 39 Stat., 188, provides:

That subject to such regulations as the President may prescribe for their proper identification, and location, and physical condition, the members of the Regular Army Reserve shall be paid semiannually at the rate of $24 a year while in the reserve.

Paragraph 75 of the regulations promulgated for the government of the Regular Army Reserve in pursuance of the provisions of the above act provides:

This payment of $12 semiannually is intended partially as a compensation for periodically reporting himself at a certain address and reporting each change of address promptly; partially for being a reservist and ready to comply with orders received either for identification, location, or ascertaining his physical condition, and partially for compliance with orders to report and receive annual field training or to report for duty in active service under summons for mobilization in event of actual or threatened hostilities. If a soldier neglects to report his address, to report for field training when summoned (unless certificate of sickness is furnished), or to report wherever ordered when the Regular Army Reserve is mobilized, so much of this semiannual pay as remains due the soldier will be withheld.

Paragraph 78 directs that all officers

charged with keep

ing reservists' records will report the following to the depot quartermaster, Washington, D. C.:

(a) The names of all reservists who failed to comply with these regulations and are thereby precluded from receiving pay (par. 75).

The Chief of Finance reported December 18, 1922, that:

The records of this office show that Regular Army Reservist Frank B. Dougherty, Number 331682, was reported by the Southern Department as failing to comply with regulations for the period while on reserve

Claimant urged that since the pay as claimed is due him under the law only a board of officers or a court-martial convened by the War Department could deprive him of such pay.

The regulations in question were made in pursuance of a statute. The payment of the amount authorized by the statute is conditioned upon a compliance with the requirements of the regulations made pursuant thereto, and in the absence of a compliance with said regulations no right to the pay attaches. The Chief of Finance reports that the regulations were not complied with. The claim for reservist pay was properly disallowed and upon review of the matter the settlement is sustained.

PURCHASES AT CLOSE OF FISCAL YEAR-GENERAL SUPPLY

COMMITTEE.

The fact that a contract for all of the supplies or materials of a certain kind the Government may require during a fiscal year allows a period of thirty days after the placing of an order within which to make delivery does not relieve the contractor of his obligation to furnish the supplies or materials contracted for under orders or requisitions received during the month of June.

Orders placed by a Government department or establishment during the month of June for such quantity of supplies or materials as reasonably required to maintain a current running supply for such department or establishment until such time as deliveries can be effected under orders placed under the contract for the subsequent fiscal year are a need of the fiscal year in which ordered and obligate the appropriation for that year.

Comptroller General McCarl to the Secretary of the Treasury, June 29, 1923. I have your letter of June 15, 1923, received in this office June 22, 1923, requesting decision of a question presented, as follows:

The General Supply Committee is in receipt of a letter from Philip Lindemeyr, contractor on the General Schedule of Supplies for Item No. 1537, writing paper, for the period January 1 to June 30, 1923, in which the request is made that all orders be held up until after the contract beginning July 1, 1923, has gone into effect, since the present contract calls for shipment in 30 days, and orders received after the first of June would be too late to permit of delivery being completed before the contract period expires.

Your opinion is requested as to whether the contractor's action is in accordance with the terms of the contract in refusing to fill orders received after June 1st. If the contractor is within his rights, there would appear to be a period during which there would be no contract under which the Government services might purchase this material, a contract for the period beginning July 1, 1923, not yet having been entered into.

While contracts of this kind always provide a definite time of delivery, it does not necessarily follow that each delivery requires the full time. However, should a need arise during the period after which it would be possible to obtain delivery, if the full time were required, and before a contract for the succeeding period had been entered into, it would appear that a purchase under such contracts would be impossible. It is understood that nothing would prevent a purchase, providing delivery were accomplished in such less time than called for, in order to bring it within the current contract period, but such a purchase would place the burden of obtaining that delivery on the purchasing officer without providing any means to require or accomplish it.

In the case of a contract running concurrently with the fiscal year it would seem that to permit a construction such as the contractor assumes in the present instance would result in a period consisting of the delivery time specified under the current contract plus the same time under the succeeding contract during which the Government would be powerless to require deliveries. Your decision as to the proper procedure in this and similar cases is desired by the General Supply Committee in order that it may govern its future action accordingly.

The fact that a contract for all of the supplies or materials of a certain kind the Government may require during a fiscal year allows a period of 30 days after the placing of an order within which to make delivery does not relieve the contractor of his obligation to furnish the supplies or materials contracted for under orders or requisitions received during the month of June.

As a general proposition the authority for the contract in such cases is the annual appropriation act for the department, establishment, or service for which the contract is made, and therefore the contract is subject to the limitations imposed by law upon the use of the appropriation. If an appropriation is available only to supply the needs of a service for the fiscal year for which it was made, a contract entered into under authority of said appropriation can not obligate the Government to purchase, nor the contractor to furnish, supplies or materials to meet the needs of the service for a subsequent

fiscal year. But in this connection it may be noted that supplies or materials may be needed to meet the requirements of one fiscal year, although not actually used or delivered until in the subsequent fiscal year. The contractor is not to be the judge of whether supplies or materials ordered during a given fiscal year are required to meet the needs of said fiscal year and has no right to refuse to fill orders upon the ground that delivery could not be made within the fiscal year covered by the contract. When orders placed by the Government during the month of June do not exceed the quantity reasonably required to give the service a necessary supply until such time as deliveries can be effected under orders placed under the contract for the subsequent fiscal year it is the right and duty of the department to insist that such orders be filled under the contract for the fiscal. year in which they were placed, and the contractor must be held responsible for any loss or damage resulting from refusal or failure to fill such orders.

The specific contract referred to in your letter provides that the contractor shall furnish and deliver the articles covered thereby “in such quantities at a time and from time to time as the same may be required and ordered during the fiscal year beginning July 1, 1922, and ending June 30, 1923," and that the Government will order from the contractor all of such articles "that may be needed for use by the aforesaid executive departments or other Government establishments during" said fiscal year. If the orders placed under said contract during the month of June were placed in good faith for supplies or material required at the time the order was placed the contractor must be held responsible for any failure to fill such orders even if delivery could not be accomplished until after June 30, 1923.

QUARTERS IN KIND-EMPLOYEES OF INDIAN SERVICE.

An employee of the Indian Field Service entitled under her appointment to quarters in kind may not be furnished such quarters by renting or leasing a room in the home of the employee's mother.

Comptroller General McCarl to the Secretary of the Interior, June 30, 1923. I have your letter of June 18, 1923, requesting decision whether the Superintendent of the Grand Rapids, Wis., Indian Agency, is authorized to lease a room from the mother of an employee of the agency, the employee being entitled under her appointment to quarters in kind, and pay the rental agreed on under the appropriation "Indian school and agency buildings."

The "conditions of employment in the Indian Field Service" appearing on the back of the preliminary notice sent to prospective employees state that quarters are furnished employees. Appoint