or illuminating supplies, the voucher should show in what capacity said person furnished the heat, or light-that is, whether as landlord, owner of the premises, agent, etc., as the case may be.

PAY FOR RAILWAY TRANSPORTATION OF MAILS.

Where on a certain route mail matter is transferred from the class transported by freight to that carried on regular mail trains, increased compensation for the carriage thereof, to be determined in a manner prescribed by the Postmaster General, is authorized, provided that the total cost of mail transportation over said route does not exceed by reason of such increased compensation the maximum amount that could legally be allowed therefor, as determined by the last quadrennial weighing.

Comptroller Downey to the Postmaster General, September 8, 1913:

I have received your request for a decision as to your authority to readjust compensation for inland transportation of the mails by certain railroad routes on account of including in the regular mails over said routes a class of mail matter excluded therefrom when the compensation therefor was fixed at the regular quadrennial period. The facts in the case are stated by you as follows:

"On September 1, 1911, the Post Office Department inaugurated the plan of transporting in fast freight trains instead of the regular mail trains certain periodical mail matter between large cities. This method was then applied to the Middle West. On July 1, 1912, it was extended to shipments of such matter between Washington and Atlanta, and Cincinnati and Chattanooga and Atlanta. The act of August 24, 1912, prohibited the further extension of this policy pending inquiry into the subject of postage on second-class mail matter and compensation for the transportation of mail by the joint commission provided for by that act (37 Stat., 546).

"The acts relating to the compensation of railroads for carrying the mails are section 4002, Revised Statutes, and acts amendatory thereof. This compensation is based upon the average weight of mails per day carried by the railroad, ascertained by an actual weighing of the mails. The law provides that the Postmaster General shall make adjustments of compensation to railroads not less frequently than once in every four years. The United States are divided into four sections, and it is the practice to weigh one section each year, thus securing a weighing of the entire country once in four years, and upon the weights so obtained adjustments of compensation are made for quadrennial terms at rates not exceeding those named in the

statutes.

"Prior to the inauguration of the freight shipments a decision was rendered by the Comptroller of the Treasury on May 27, 1911, that the payment for the transportation of the mails in this manner could be made out of the appropriation for inland transportation of the mails on railroad routes, provided the amount paid therefor added to the amount allowable for the mails carried in the regular mail trains shall not exceed the maximum amount which the law allows

the Postmaster General to pay for the total weight of all mails carried over the route (XVII Comp. Dec., 900).

Following this decision railroad mail routes between the several designated points for the movement of the periodical mail matter otherwise than in the regular mail trains were established, effective September 1, 1911. These routes for the transportation of the periodical mail matter in freight trains are stated as lapping the regular routes for the transportation of the mails in the passenger or usual mail trains. This action was taken under authority of section 1172, Postal Laws and Regulations, Edition of 1902, which provides that the rate of compensation on the second or lap route shall not be more than the difference between the rate earned by the average daily weight of the first or original route and the rate which would be earned if the average daily weight of the lap route were added thereto. The weighing of the mails on the railroad routes affected began September 1, 1911, and continued for 105 days. During this weighing two sets of weights were taken, first, the weight of all mails carried in the usual mail trains over the regular mail routes and, second, the weight of all the periodical mail matter carried in the freight trains over the lap routes. After the completion of the weighing of the compensation on the regular routes was readjusted, based upon the first set of weights, and payment for the service performed since September 1, 1911, have been made at this rate. The second set of weights was used for the purpose of ascertaining the amount that would have been paid for the carriage of the periodical mail matter at the maximum statutory rates, and the actual payments for the service in transporting it by freight have been made in accordance with freight bills submitted by the companies, but within such maximum statutory rates. Copies of the forms of orders used in connection with the adjustment and payment on the lap routes are attached hereto. The same procedure was followed when the freight shipments from Washington and Cincinnati were established July 1, 1912.

"It will be seen from the above that the compensation payable to railroads for transportation on regular mail trains under readjustments made on September 1, 1911, and July 1, 1912, was based on the weight of mail exclusive of that segregated for carriage on freight trains. In the case of some of the publications now included in the freight shipments it has been represented to this department time is essential in their transportation by reason of the nature of their contents, and that the slower movement in freight trains has resulted in loss and injury to the publishers and subscribers.

"It is desired to give consideration to the question of restoring to the regular mail trains these publications in cases where the facts warrant such action, but in justice to the carriers this could not be done without allowing them additional compensation for the service on the regular mail routes. The cost of a reweighing of all the mails. carried on such routes is prohibitive, and it has been suggested that the department weigh for 90 successive working days the publications to be withdrawn from the freight shipments, and add the daily averages of these weights to the daily average weight of mails shown by the weighing on which the present adjustments are based and pay on the basis of the combined weights, effective with the

change in the manner of their transportation. At the same time the daily average weights of these publications would be deducted from the daily average weight shown to have been carried on the lap routes, and the amount that would be payable for the carriage of the periodical mail matter in freight trains correspondingly reduced. In connection with this matter attention is invited to the letter of the Acting Comptroller of the Treasury dated October 14, 1912 (19 Comp. Dec., 220), to the Postmaster General concerning the weighing of certain mails for the Durham, N. C., post office omitted from the weights upon which the readjustment of compensation was made on the Seaboard Air Line Railway route between Henderson and Durham, N. C.

"I have to request that you inform me whether, if the publications in question are restored to the regular mail trains, the department is authorized to readjust compensation on the routes affected in the manner described in the foregoing."

By the act of March 3, 1875 (18 Stat., 341), the Postmaster General is authorized

66 * * *

to have the mails weighed * * by the employees of the Post Office Department, and have the weights stated and verified to him by said employees under such instructions as he may consider just to the Post Office Department and the railroad companies."

The act of March 3, 1905 (33 Stat., 1088), provides:

"That hereafter before making the readjustment of pay for transportation of mails on railroad routes, the average weight shall be ascertained by the actual weighing of the mails for such a number of successive working days not less than ninety, at such times after June thirtieth, nineteen hundred and five, and not less frequently than once in every four years, and the result to be stated and verified in such form and manner as the Postmaster General may direct.”

The payment for the transportations of the mails is determined upon the basis of the weight as thus ascertained, the Postmaster General being authorized to readjust the compensation there for not to exceed the rates specified therefor. (See Sec. 4002, R. S.; acts of July 12, 1876, 19 Stat., 79; June 17, 1878, 20 Stat., 142; March 2, 1907, 34 Stat., 1212; May 12, 1910, 36 Stat., 362.)

Under the provisions of the acts cited, you are authorized to adjust the compensation to be paid for the transportation of mails on railroad routes and to direct a weighing for the purpose thereof, as often as to you seems advisable provided no longer period than four years elapses between two weighing periods.

The law does not detail the manner in which the average weight shall be determined except that it be by actual weighing of the mails for a number of successive working days, not less than 90, the result to be stated and verified in such form and manner as you may direct. Section 4 of the act of August 24, 1912 (37 Stat., 554), provides a limitation upon the readjustment of compensation for the trans

portation of the mails on a railroad route, when after weighing the same for said purpose mails are diverted from or to said route.

Aside from the act last cited you are given broad power and discretion in the matter of adjusting the compensation for transportation of the mails over railroad routes.

In the decision of this office dated October 14, 1912, supra, it was held, quoting the syllabus, that—

"Where in making readjustment of pay for transportation of mails on a railroad route, certain mails which are received daily and carried over the entire route were by oversight omitted in the regular quadrennial weighing, such mails may be included for pay purposes if they can be identified and actually weighed for not less than 90 successive working days, but the new rate as then established will be for service thereafter performed and can not be made retroactive so as to authoize payment for any prior service of the difference between the new rate and those fixed and paid under the former weighing."

In the case now under consideration it appears that the periodical mail matter referred to by you has been separated from the regular mail and transported as freight. You now propose to return the same to the regular mail. It is therefore entirely proper that the payment for the transportation of the regular mail should be increased in accordance with said increased weight which may be determined as suggested by you. As the act of March 3, 1905, supra, provides that the average weight of mails shall be ascertained by actual weighing for not less than 90 successive working days, it appears that such a method would be proper to determine the average weight of a particular and definite class of mail matter.

It should be understood in this connection, however, that the total cost of the mail transportation on any route should not exceed the total amount that could be legally allowed therefor, as determined at the last quadrennial weighing of the entire mail over said route, as per decision of May 27, 1911, supra.

REIMBURSEMENT OF A UNITED STATES MARSHAL FOR EXPENSES CAUSED BY THE ESCAPE AND RECAPTURE OF A PRISONER.

Where a prisoner escapes from a United States marshal while en route to a penitentiary, but is recaptured and committed to prison by the marshal, that official may be reimbursed for the expense actually incurred in taking the prisoner to penitentiary, less (in the event of negligence on the part of the marshal) so much thereof as was caused by the prisoner's escape and recapture.

15 Comp. Dec., 507, distinguished.

Decision by Comptroller Downey, September 9, 1913:

J. Duncan Adams, United States marshal for the district of South Carolina, applied, August 20, 1913, for a revision of the action of the

Auditor for the State and other Departments in disallowing by settlement No. 5316, dated August 5, 1913, certain items of expense amounting to $106.46, incurred by the marshal in connection with the transportation to Atlanta Penitentiary of a prisoner, who escaped en route and was subsequently recaptured and placed in the penitentiary.

In company with this prisoner and a guard, the marshal left Charleston, S. C., en route to Atlanta, Ga., November 1, 1912, and the prisoner escaped at Aiken, S. C., the same day. He was recaptured at Knoxville, Tenn., and placed in the penitentiary at Atlanta on November 29, 1912. The amount disallowed represents various items of expense incurred in the first attempt to transport the prisoner and in his recapture and ultimate transportation to the prison.

The marshal did finally execute the process in his hands by committing this prisoner to the penitentiary, and the case is distinguished in this respect from that in 15 Comp. Dec., 507, cited by the auditor in support of his disallowance of all expenses in the case.

It is clear that the marshal is entitled in this case to credit for the expense actually incurred, less so much of that expense as was caused by the escape and recapture of the prisoner. In other words, the United States is liable for so much of the expense as would have been incurred if the prisoner had not escaped, amounting to $62.60, as shown by an itemized statement of the marshal. This part of the expense is accordingly allowed on revision.

The marshal's right to credit for the remainder depends upon whether or not the escape of the prisoner was due to negligence on the part of the marshal or the guard. (15 Comp. Dec., 507.)

The escape raises a presumption of negligence (United States v. Nix, 189 U. S., 199). No refuting evidence has been offered by the marshal, except his statement that the guard disregarded his instruction to handcuff the prisoner.

The marshal is responsible for the negligence of the guard employed by him (15 Comp. Dec., 507, 511).

The auditor's disallowance of so much of the expense as was due to the escape and recapture, amounting to $43.86, is affirmed on this revision.

REIMBURSEMENT OF PRIVATE CORPORATION

BY GOVERNMENT FOR DAMAGES PAID TO EMPLOYEES OF CORPORATION FOR PERSONAL INJURIES.

A private corporation that has paid damages to its employees for personal injuries sustained while relocating its railroad, and due to its negligence, is not entitled to reimbursement therefor by the Government, under an agreement by a Government establishment to pay the corporation for material and labor furnished in relocating said railroad.