*

Hereafter an enlisted man discharged from the Army, Navy, or Marine Corps, except by way of punishment for an offense, shall receive 5 cents per mile for the distance from the place of his discharge to the place of his acceptance for enlistment, enrollment, or muster into the service: Provided, That for sea travel involved in travel between place of discharge and place of acceptance for enrollment, enlistment, or muster into the service only transportation in kind and subsistence en route shall be allowed: * * Provided further, That from and after August 27, 1940, upon discharge or relief or release from active duty, an enlisted man inducted into the military or naval service under the Selective Training and Service Act of 1940, as amended, or Public Resolution Numbered 96, approved August 27, 1940, shall, under such regulations as the Secretary of War or the Secretary of the Navy, respectively, shall prescribe, receive the said 5 cents per mile for the distance from the place of discharge or relief or release from active duty to the location of the local board where he first reported for delivery to an induction station in the case of a selectee, or to the home station of the National Guard unit in the case of a National Guard enlisted man, or to the place where he was selected for enrollment in the Civilian Conservation Corps in the case of a Civilian Conservation Corps enrollee so inducted: And provided further, That the enlisted men of the Naval Reserve, the Marine Corps Reserve, the Enlisted Reserve Corps, and the Regular Army Reserve shall receive, upon discharge or relief or release from active duty, the same mileage allowance as herein prescribed, and under the same conditions as herein prescribed for enlisted men inducted into the military or naval service under the Selective Training and Service Act of 1940, as amended, except that the distance for which mileage is computed shall be from the place of discharge or relief or release from active duty to the place from which ordered to active duty.

While the statute excepts from the authorization for payment of the travel allowance, only cases of discharge by way of punishment for an offense, it uniformly has been held that enlisted personnel discharged prior to the date of normal termination of their enlistment contracts for the purpose of enabling them to reenlist, or for the purpose of releasing them from their contracts of enlistment to allow them to continue in the military service in a different status, may not be considered as having been discharged under conditions entitling them to the travel allowance provided by the quoted provisions of the National Defense Act, as amended, but that, upon their eventual discharge and complete separation from the service, they are entitled to the travel allowance so provided to the place of entry into the service under the original enlistment, if the discharge is of a nature otherwise entitling them to travel allowance. 8 Comp. Dec. 513; 26 id. 359; 6 Comp. Gen. 842.

The discharges issued by the Army to the enlisted men here concerned were not given for the purpose of terminating their services in the armed forces of the United States. The men were discharged during their term of enlistment with the express understanding that they would be enlisted in the Navy immediately, their enlistment in the Navy having been made necessary by transfer of the Army activity to which they had been attached to the jurisdiction of the Navy Department. In other words, the transaction was in the nature of a transfer from one service to another rather than a discharge from the service. Had these enlisted men continued their service in the Army until the normal termination of their enlistments, and had they then been discharged under honorable conditions they would, of course, have been entitled to the travel allowance provided by law.

But since their enlistments in the Army were terminated by discharge only for the purpose of immediately enlisting them in the Navy, their service as enlisted men in the Navy, is, so far as travel rights are concerned, merely a continuation of their enlisted service under the original term of enlistment. Accordingly, upon their ultimate discharge or release from active duty with the Navy they will, on the basis of existing provisions of law, be entitled to travel allowance from the place of such discharge or release to the place to which they would have been entitled had they continued to serve in the Army until finally discharged or released from active duty.

Inasmuch as the men involved now are serving under enlistment in the Navy and, presumably, will be discharged or released from active duty under the same conditions as other enlisted men inducted into the Naval service, the travel allowance payable when they are finally discharged or released from active duty would appear to be chargeable against Navy appropriations then available for payment of travel allowance to other inducted enlisted men upon discharge or release from active duty.

The papers are returned herewith.

(B-40494)

CONTRACTS-NATIONAL PARK CONCESSIONS-TERMINATION OR SUSPENSION DURING WAR PERIOD

Where a concessioner in a National Park is required to pay an annual franchise fee under an agreement for the maintenance of a saddle and pack horse transportation service for the benefit of park visitors, the fact that the contract has become unprofitable because of the gasoline and tire rationing programs instituted by the Government furnishes no legal basis for administrative action which contemplates that the contract shall continue operative and in effect but that there shall be a waiver or abatement of the franchise fee.

If it be administratively determined that the public interest does not require a continuation of a contract under which a concessioner in a National Park is required to maintain for the benefit of park visitors a saddle and pack horse transportation service for a period of 15 years from January 1, 1942, and to pay an annual franchise fee therefor, this office would not be required to object to the execution of a supplemental agreement with the concessioner to terminate or temporarily suspend the entire contract.

Comptroller General Warren to the Secretary of the Interior, April 27, 1944: There has been considered your letter of February 29, 1944, as follows:

On March 19, 1942, contract No. I-1p-18177, a copy of which is enclosed, was entered into between the United States of America and the Park Saddle Horse Company under which it agreed to establish, maintain, and operate in Glacier National Park a saddle and pack horse transportation service for the benefit of the visitors to the park for a period of fifteen years from January 1, 1942. Article IV (b) of the contract requires the Company to pay a franchise fee of $500 per annum together with a percent of net profits in excess of a priority amounting to 6 percent of the value of its investment.

Because of conditions due to the war, it was deemed advisable to discontinue entirely the bus transportation service of the Glacier Park Transport Company, and to curtail materially the housing and meal service of the Glacier Park Company (formerly Glacier Park Hotel Company). Because of this discontinuance and curtailment of service, it was also considered advisable to discontinue entirely the saddle and pack horse transportation service and other incidental privileges of the Park Saddle Horse Company. Copies of pertinent communications in connection with these matters are enclosed.

Mr. George W. Noffsinger, President of the Park Saddle Horse Company, in a letter of January 29 to the Director of the National Park Service, a copy of which is enclosed, has requested that the concession fees due from his Company, starting with the year 1943 and for the duration of the war, be waived or abated. This application is made on the grounds that the park was not regularly open; that other facilities were not in operation; that, therefore, it would have been impossible for his Company to have operated during the year 1943; and, that the same condition doubtless will prevail for the duration of the war.

The Great Northern Railroad which serves visitors to the Glacier National Park decided, as a matter of policy and to conform to the requests of the Office of Defense Transportation, not to solicit tourist business for Glacier National Park during the 1943 season, and it did not stop its transcontinental passenger trains at Glacier Park and Belton, the railroad stations adjacent to the park. Because of gasoline and tire restrictions, it was evident prior to the opening of the 1943 season that there would be few visitors reaching the park by automobile. It is the broad general policy of this Department as an aid in the winning of the war to discourage rather than encourage, as is the custom in peacetime, visitation to the national parks. Therefore, the action mentioned in the second paragraph of this communication was taken and the Park Saddle Horse Company furnished no services to visitors to the park during 1943. It is not likely that it will be called upon by this Department to furnish any services for the duration of the war.

In view of the circumstances, your opinion is requested as to whether the concession fees due from the Park Saddle Horse Company starting with the year 1943 and for the duration of the war may be waived or abated by administrative or other action.

In decision of April 11, 1944, B-40226, to you, it was held that an administrative remission or reduction in the amount of the annual franchise fee required to be paid under an agreement for the maintenance and operation of a medical and hospital service in Yellowstone National Park is unauthorized in the absence of some compensating benefit to the Government. In said decision it was stated:

There is no provision in the contract involved to the effect that the contractor may be excused from performance in the event anticipated revenues fail to materialize; consequently, there is no legal basis for relieving the contractor from his obligations thereunder on the ground that the contract is unprofitable. See Columbus Railway, Power & Light Co. v. Columbus, 249 U. S. 399, and cases therein cited. Also, it is well settled that, in the absence of a statute specifically so providing, no officer of the Government has authority to give away or surrender any right vested in or acquired by the Government under a contract. See Brawley v. United States, 96 U. S. 168; Simpson v. U. S., 172; U. S. 372; Pacific Hardware Co. v. United States, 49 C. Cls. 327; Bausch & Lomb Optical Co. v. United States, 78 C. Cls. 584.

* *

In view of the factual similarity between the decision of April 11, 1944, and the present matter, the legal principles considered and the conclusion reached in said decision appear to be equally applicable here to the extent that the question presented contemplates that the

contract shall continue operative and in effect but that there shall be a waiver or abatement of the franchise fee.

However, it is understood from your letter and its accompanying enclosures that, at the request of your Department, the saddle and pack horse transportation service and other incidental privileges of the Park Saddle Horse Company under the contract involved were discontinued entirely beginning with the year 1943. In view of these circumstances, you are advised that if it be administratively determined that the public interest does not require a continuation of the contract, at least for the present, this office would not be required to object to the execution of a supplemental agreement with the contractor to terminate or temporarily suspend the entire contract effective January 1, 1943. In that connection, see my decision of May 22, 1942, B-25701,

to you.

(B-40960)

LEASES-LIABILITY FOR MAINTENANCE OF PREMISES IN
TENANTABLE CONDITION

While the rule of caveat emptor ordinarily applies between landlord and tenant and there is no implied covenant or warranty that the premises are safe for habitation and occupation, under a lease requiring the lessor to maintain the premises in a tenantable condition during the continuance of the lease, it is the lessor's obligation, rather than that of the Government, to secure a professional exterminator to rid the premises of rats when ordinary methods have been unsuccessful.

Where, under a lease providing that the lessor shall maintain the premises in good repair and tenantable condition, and that the Postmaster General may cancel the lease if the building becomes unfit for use as a post office or cease to pay rent until the building is put in a satisfactory condition, it is administratively determined that the presence of rats has made the building unfit for use as a post office, and should the lessor refuse to take appropriate steps to rid the premises of rats when called upon to do so, the rental should be withheld until the premises shall have been placed in a satisfactory condition, or the lease may be cancelled as provided therein.

Comptroller General Warren to the Postmaster General, April 27, 1944:

There has been considered your letter of March 23, 1944, as follows:

The post office quarters at Tenafly, New Jersey, are retained by virtue of an extension of a prior lease for not exceeding one year from October 11, 1943, the contract including equipment, heat and water, and being subject in general to the provisions of the standard form of lease, as modified for use by the Post Office Department.

It has been brought to the Department's attention that the leased premises are infested with rats. These rodents have destroyed considerable mail matter and resort to ordinary methods have not been successful in ridding the premises of these pests.

It would appear that it will be advisable to engage the services of a professional exterminator, with a view to exterminating the rats, and I shall be pleased to have your ruling as to whether there is any appropriation under the control of this Department which may be used in engaging the services of such a professional exterminator on a contract basis.

If so, kindly advise the title of the appropriation to which such expenditure may properly be charged.

The lease referred to in your letter was entered into on November 17, 1938, for the term beginning October 11, 1938, and ending October 10, 1943, at an annual rental rate of $2,750.

Paragraphs 7 and 10 of the lease provide in pertinent part as follows:

7. The Lessor shall, unless herein specified to the contrary, maintain the said premises in good repair and tenantable condition during the continuance of this lease, except in case of damage arising from the act or the negligence of the Government's agents or employees *

10. Whenever any building or part of a building under lease becomes unfit for use as a post office, no rent shall be paid until the same shall be put in a satisfactory condition by the owner thereof for occupation as a post office, or the lease may be canceled, at the option of the Postmaster General.

The records of this office show that under date of December 28, 1943, the Post Office Department accepted the lessor's offer to extend the terms of the original lease for a period of not to exceed one year from October 11, 1943, reserving unto the Government the right to terminate the agreement at the end of any calendar month.

The rule of caveat emptor ordinarily applies between landlord and tenant and there is no implied covenant or any warranty that the premises are safe for habitation and occupation. Roth v. Adams, 70 N. E. 445; Stevens v. Pierce, 23 N. E. 1006; Hopkins v. Murphy, 124 N. E. 252; Leech v. Husbands, 152 Atl. 729; Lawler v. Capital City Life Insurance Company, Inc., 68 F. 2d 438; Hughes v. Westchester Development Corporation, 77 F. 2d 550 ; 4 A. L. R. 1453; 36 C. J. 43, 47. However, in the instant case the lessor specifically obligated itself under the terms of paragraph 7 of the lease to maintain the premises in good repair and tenantable condition. In addition to the foregoing, under the provisions of paragraph 10 of the lease, whenever the building becomes unfit for use as a post office, the obligation on the part of the Government to pay rent ceases until the building is put in satisfactory condition by the owner for occupation as a post office, or the lease may be cancelled at the option of the Postmaster General. There is nothing in your letter indicating any negligence on the part of the Government's agents or employees as a contributing factor in the presence of the rats and it is stated in your letter that ordinary methods have not been successful in ridding the premises of the pests.

Under the circumstances, and in the light of the provisions of the lease obligating the lessor to maintain the premises in a tenantable condition during the continuance of the lease as extended, it is no part of the Government's obligation to perform such function. Therefore, if it be administratively determined that the premises in their present condition are unfit for post office quarters and that a professional exterminator is necessary to rid the premises of the pests, and the lessor should refuse to engage same after being called upon to do so,