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of major who are required to be mounted received $150 per year if they furnished one horse and $200 per year if they furnished two horses at their own expense. The average life of usefulness of an officer's mount may be said to be about six years. If the officer, during that period, maintains but one mount, he would receive $900, or for two mounts he would receive $1,200. During the whole of this time his horse or horses have been fully sheltered, foraged, and cared for. If taken sick, the veterinarian cares for them and furnishes the necessary medicines at the expense of the United States. If the horse should be taken sick and die, or should die of old age, the officer would be entitled, under the existing construction of this act, to reimbursement for its value, be that value great or small, and notwithstanding such officer may select any Cavalry horse in the Army and purchase it at the average price paid by the Army for horses during the prior year."
I can not conceive that Congress intended to pay a man, by reason of his furnishing a mount, a sufficient additional amount to cover the purchase of two or three good horses during the average period of usefulness of one, feed his horse for him and care for it when sick, and pay for it again when he lost it.
But I ought not further lengthen this opinion by cumulative arguments. It is too long already, justified only by reason of the divers opinions on the question involved and my desire to dispose of the entire matter and settle the questions involved at least during my incumbency.
The construction of the auditor is disapproved.
LIABILITY OF THE GOVERNMENT TO PAY GENERAL AVERAGE.
The same general rule of law applies to the Government as to individual ship
pers by sea, that whatever is sacrificed for the common good of the associated interests shall be made good by all the interests exposed to the common peril and which were saved from the common danger by the sacrifice; but if the peril was due to the ship's negligence the shipowner has no right to general average contribution to make good his own losses for sacrifices made and suffered by him subsequent to such peril in successful efforts to save the vessel, freight, and cargo.
Comptroller Downey to the Postmaster General, October 20, 1913:
I am in receipt of your letter of the 11th instant, as follows: .“ On April 17 and 18, 1912, three shipments of empty mail bags were forwarded by freight from Shreveport and Alexandria, La., and from Forth Worth, Tex., to the postmaster at New York, N. Y. All the shipments were placed on board the steamer Creole at New Orleans on April 24, 1912.
“ Messrs. Johnson & Higgins, average adjusters and insurance brokers, 49 Wall Street, New York, N. Y., advised the Department under date of January 4, 1913, as follows:
“While on the voyage (from New Orleans to New York) the steamer Creole stranded in the Mississippi River shortly after leaving New Orleans, but was subsequently floated by working her engines and with the assistance of the tugboat R. W. Wilmot, after which she continued on her voyage. In consequence of this accident sacrifices were made and expenses have been incurred which in law are known as general average, and as such must be contributed for by the vessel, freight, and cargo according to their respective values. We have been requested to draw up the necessary general average statement dealing with the above sacrifices and expenses.'
* On March 12, 1913, the department addressed the following communication to Messrs. Johnson & Higgins, adjusters:
“ • Referring to the general average case in connection with the stranding of the steamer Creole which sailed from New Orleans to New York on April 24, 1912, I have to state that the value of the empty mail bags alleged to have been carried at the time of the accident was $1,114.65, as nearly as can be estimated by this office at this time.
This information relative to the value of the bags is given with the understanding that it is not to be taken as an admission on the part of this department that the department is liable for any portion of the general average expenses, but is given merely to enable you to complete your general average statement. The question of the liability of the department is to be decided later, when all necessary facts are available to make such decision practicable.'
“On September 27, 1913, the adjusters submitted a general average bill against the department in the sum of $10.05 to cover the proportion of general average as per adjustment.
“The mail bags on board the steamer were the property of the Government and were consigned by agents of the department to the postmaster at New York.
“ In order that proper action may be taken by this office, it is requested that you state whether or not this case is one for general average and whether this department should participate in the settlement of the case as presented by the adjusters.'
The various items of expense embraced in the adjusters' stateinent and the nature of the sacrifices made for the common good, whereby the Government's contribution has been fixed at $10.05, are not before me, and necessarily such answer as can be made to the question submitted must be general.
The general rule is that whatever is sacrificed for the common good of the associated interests shall be made good by all the interests exposed to the common peril and which were saved from the common danger by the sacrifice. (Star of Hope, 9 Wall., 203; Fowler v. Rathbones, 12 Wall., 117; McAndrews v. Thatcher, 3 Wall., 365;
, Barnard v. Adams, 10 How., 270; 2 Parson's Ins., 241, 263; 2 Phil. Ins., 5th Ed., 1313.)
This rule applies to the Government as well as to individuals. (United States v. Wilder, 3 Sumner, 309, Justice Story; United States V. Ames, 1 Wood. & Med. (U. S.), 81; 5 Op. Att. Gen., 757; 3 Kent Com., 240; 16 Comp. Dec., 834; 2 id., 409.)
It has, however, also been held that if the stranding was due to the ship's negligence, the shipowner has no right to general average contribution to make good his own losses for sacrifices made and suffered by him subsequent to stranding in successful efforts to save the vessel, freight, and cargo. (See case of The Irrawady, 171 U. S., 187.)
You would be authorized to pay the amount in question if determined by you to be proper under the general principles set forth above. In case payment is made by your orders and not by auditor's settlement, as is the better practice in claims under general average adjustment, extracts from the adjusters' statement and findings showing the Government's liability should be filed with the voucher making payment.
OFFICIAL CALLING CARDS.
Official calling cards are considered a personal rather than an official expense,
hence not chargeable to the Government.
Decision by Comptroller Downey, October 21, 1913:
The Auditor for the State and Other Departments has submitted for approval, disapproval, or modification his decision of October 11, 1913, which reads:
“There is before this office for settlement a claim of Hausler & Co. for supplies furnished the Board of Mediation and Conciliation. Two items in the bill are official cards and plate for commissioner of mediation and the same for the assistant commissioner.
“The Board of Mediation and Conciliation was created by the act of July 15, 1913, Public No. 6. The appropriation for the maintenance of this board and for the expenses of the execution of its functions is provided in section 10 of the act. The funds are made available for the necessary and proper expenses incurred in connection with any arbitration or with the carrying on of the work of mediation and conciliation,
“The cost of official calling cards has been held not a proper charge against Federal appropriations. (10 Comp. Dec., p. 507, affirmed in several subsequent cases.) Under this holding the auditor might with propriety have summarily disallowed the items in the claim in question. The office, however, has never found itself able to concur in the Comptroller's conclusions in this regard, and it seems not improper at the present time, through the medium of an advance decision, again to reopen the question of this allowance for reconsideration-a reconsideration in which due weight may be given to the growth of the usage in professional and business life which demands the employment of business or official cards.
“ The Comptroller, in the decision cited, attacks the expense on the ground of the absence of legal necessity. His language is: 'An officer's appointment or commission is the legal evidence that he holds such office or place. If for convenience he desires other evidence of such fact, this is not a legal necessity, but a matter of mere per
sonal convenience, for which he should personally pay. The item is therefore disallowed. It is difficult, however, to see how these cards can be thought of as a matter of personal convenience. Their use is in no sense personal. They are a feature strictly of commercial or business as distinguished from social intercourse, and their convenience is therefore a direct advantage in official work. Nor is it consistent with business practice to conceive that the production and exhibition of an officer's appointment would serve the purpose of an official card. This was made particularly plain in a case arising in the Library of Congress and acted upon by the Comptroller in an unpublished decision. In that instance, an agent of the library was commissioned to visit foreign book concerns and collections of books and manuscripts in the interest of purchases for the library. In defending a charge for official cards which appeared in his expense account the agent strongly urged the universal practice throughout Europe of using these cards as a medium of introduction in business and commercial transactions, a practice so prevalent that failure to observe it amounted to a solecism and carried with it at least some slight prejudice against the infractor of the custom. The conception of a Government agent using his appointment as a credential and means of introduction in such a case does not commend itself to one's sense of propriety or fitness.
“ The appropriation provides for the necessary expenses of mediation and conciliation. In the business, Government accounting, there are two classes of necessity-one, mere physical necessity, beyond the scope of which are very many of the expenses allowed as a matter of course in Federal accounts; the other is what might be called the necessity of usage. This is a principle abundantly recognized in the travel regulations of the departments, wherein among the allowable items are included many classes of fees, tips, and gratuities, not because travel or subsistence are impossible without these expenditures, but because custom has so strongly sanctioned and demanded them that many officers of the Government would prefer to meet these charges at their personal cost rather than omit the expenditures. The cost of official calling cards seems to me to have far more legitimate claim for a place among the permissible expenses than many of the fees and gratuities which are provided for. So prevalent is their use that it may be said that no important commercial or business establishment would think of sending out its agents unprovided with a supply of business cards. They are the recognized credential and medium of announcement and introduction. It is to be borne in mind that in the business world of to-day immediate personal access to the person sought is often impossible, and that the use of a card by the visitor not only satisfies the recognized usage of the situation, but frequently has practical value in the avoidance of errors in name or description.
“For the reasons stated, I find the items in question in the claim before me allowable on the ground of their necessity within the purview of the appropriation against which they are charged and submit the conclusion for your approval, modification, or disapproval. The voucher is inclosed."
Section 10 of the act of June 15, 1913 (Public, No. 6), appropriates the sum of $25,000, or so much thereof as may be necessary, to be
immediately available and to continue available until the close of the fiscal year ending June 30, 1914, for the members of the Board of Mediation and Conciliation and
for the necessary and proper expenses incurred in connection with any arbitration or with the carrying on of the work of mediation and conciliation, including per diem, traveling, and other necessary expenses of members or employees of boards of arbitration, and rent in the District of Columbia, furniture, office fixtures and supplies, books, salaries, traveling expenses, and other necessary expenses of members or employees of the Board of Mediation and Conciliation, to be approved by the chairman of said board
Section 11 provides that the salary of the commissioner shall be $7,500 and the assistant commissioner $5,000 per annum.
The question hinges upon whether the cost of these official cards is a necessary and proper governmental expense in connection with the mediation and conciliation work. Doubtless the cards would be a convenience, and custom in the commercial world seems to call for their use. But in official life it has been the practice for the official himself to furnish his own cards, the salaries in most instances being adequate for such expenditures.
To countenance such an expenditure in one instance which may appeal to our sense of the fitness of things would require the drawing of a line without the ability or power on the part of anyone to determine just where it should be drawn, or, on the other hand, the opening of the doors for unlimited expenditures not specifically authorized and, I think, not contemplated by the appropriating power.
If officials desire calling cards it should, I think, be regarded as a personal as distinguished from an official expense, hence not a necessary or proper charge against the Government. (See 10 Comp. Dec., 507; 12 id., 661.)
The decision of the auditor is disapproved.
INCREASING BEYOND 25 PER CENT, BY MUTUAL AGREEMENT, THE
QUANTITIES COVERED BY A CONTRACT.
Contract provisions authorizing 25 per cent increase in quantities and author.
izing change, alteration, modification, or abrogation by mutual consent, construed. See opinion.
Comptroller Downey to the Secretary of the Interior, October 21, 1913:
I am in receipt of your letter of the 17th instant requesting my decision of certain questions therein stated as follows:
“Under an advertisement dated January 15, 1913, bids were opened at Chicago, Ill., on February 24, 1913, for wagons for the Indian Service, as a result of which there was awarded to Burt J. Kaull, of Lafayette, Ind., representing the Indiana Wagon Co., a contract for